Does the Establishment Clause Require Religion to Be Confined to the Private Sphere?


Through the first four decades or so of the U.S. Supreme Court’s church-state jurisprudence the Court generally sought to confine religion to the private sphere, on the grounds that the establishment clause requires such a result. While the Rehnquist Court has been more open to religion in the public sphere than previous Courts, the claim that the establishment clause requires religion to be restricted to the private sphere retains strong support among a minority of Supreme Court justices. Witness Justice Souter’s fierce objection, in Zelman v. Simmons-Harris (2002), to the Court’s approval of the use of publicly funded tuition vouchers in religious schools, proclaiming not only that the constitution relegates religion to the private sphere but that religious freedom itself is partly premised on the notion that religion be kept “relatively private.”

The aim of this paper is to critically examine the rationales—respect for rights of conscience, to protect the health and vigor of religion, and the preservation of social peace—upon which the privatization principle rests. While these are appropriate issues to focus upon, the “privatization” justices do so abstractly and uncritically, with little attention to the lived, historical reality of religion’s involvement in the public sphere. Analyzing these issues in a highly abstract fashion, I argue, leads those justices who wish to confine religion to the private sphere to ignore real issues of religious liberty. Consequently, instead of a searching inquiry into how, amidst deep religious diversity and an ever expanding regulatory state, religious liberty can be protected for all, we get abstract, conclusory arguments about the purported objective of the establishment clause.


Constitutional Law | Religion Law

Date of this Version

April 2005