This article discusses three levels of disagreement in establishment clause discourse– or what may be called the “lawyerly,” the “constitutive” (or “culture wars”), and the “philosophical” (or perhaps the “theological”) levels. Disagreement at the first of these levels is everywhere apparent in the way lawyers and justices and scholars write and argue; disagreement at the second level is somewhat less obtrusive but still easily discernible; disagreement at the third level is almost wholly beneath the surface.
The manifest indeterminacy of lawyerly arguments suggests that in this area, premises are more likely to be derived from favored conclusions, not the other way around. So then what determines which conclusions– and hence which premises– lawyers and judges and scholars select? The article suggests that our conclusions are largely dictated by commitments at the second level– commitments to what we take to be the essential meaning of America. Moreover, the historical and interpretive indeterminacy associated with these commitments further suggests that (contrary to liberal wisdom which urges that public or constitutional reasoning be detached from people’s various “comprehensive doctrines”), commitments at the second level are in turn influenced to a significant extent by what is believed or at least presupposed at the third level of basic philosophy or theology.
Hence the comparison of our establishment clause discourse to an iceberg: what we see is the most insubstantial part, and the real mass and force are largely out of sight. The article concludes that the valuable work in the area of religious freedom– the work that has a chance to be illuminating and not merely polemical– will be work that probes those deeper connections and presuppositions.
Constitutional Law | Courts | Jurisprudence | Law | Public Law and Legal Theory | Religion Law
Date of this Version
Steve D. Smith, "The Iceberg of Religious Freedom: Subsurface Levels of Nonestablishment Discourse" (November 2004). University of San Diego Public Law and Legal Theory Research Paper Series. Working Paper 29.