The adoption of nonpreferentialism would effect sweeping and dramatic
changes in the Court’s Establishment Clause jurisprudence. It would reverse
sixty years of Establishment Clause precedent and permit the government to
endorse and promote religion over nonreligion. It would greatly increase the
role of religion in public schools. It would finally demolish Everson’s wall of
separation once and for all.
Supporters of nonpreferentialism base their arguments on history, arguing
that this doctrine is the Establishment Clause interpretation that the Framers
intended. Regardless of the historical accuracy of their view, they overlook, or
perhaps even consciously disregard, the insidious side effect of nonpreferentialism—
the divisiveness that it engenders. As Professor Laycock has explained,
[n]o aid is nonpreferential. Differences among Baptists, Quakers, Congregationalists,
and Anglicans made nonpreferential aid unworkable in the
eighteenth century. The vastly greater religious differences today make it
vastly more unworkable.
For the issues that are most controversial, nonpreferential aid is plainly
impossible. No prayer is neutral among all faiths, even if one makes the
mistake of excluding atheists and agnostics from consideration. . . . Government-
sponsored religious symbols or ceremonies, whether in schools,
legislatures, courthouses, or parks, are inherently preferential. They nearly
always support Christianity, and when implemented by their most ardent
supporters, they support a particular strain of evangelical Christianity]
SHIFTING OUT OF NEUTRAL 117
In a country already polarized religiously and politically, the adoption of an
Establishment Clause standard that will generate even more divisiveness seems
at best imprudent and at worst reckless. Nonetheless, a majority of the Supreme
Court appears prepared to turn in that direction.
361 Laycock, supra note 110, at 920. Similarly, Professor Gey points out that
[t]here is no such thing as a generic God whose preeminence all believers and nonbelievers
accept. Once members of the political majority are allowed to introduce some
version of God into government and some version of God’s commandments into law, it
will become impossible to limit those sacred decrees and divine endorsements to benevolent
and universally acceptable truisms.
Gey, supra note 9, at 797. See also Colby, supra note 200, at 1134 (because religious
diversity is greater today than in the eighteenth century, “governmental acknowledgment or
endorsement of religion is no longer possible without alienating and dismissing the views of
millions of Americans”

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