Publication Type: Conference Paper/Unpublished ManuscriptAbstract: This paper seeks to articulate a general theory of the Establishment Clause based upon a pairing of a new principle of nonestablishment and a concept of coercion richer than what we normally find.
Publication Type: Conference Paper/Unpublished ManuscriptReview Method: Peer ReviewedAbstract: In order to begin to construct a general theory of the Establishment Clause, my purpose in this paper is to explore the concept of coercion from the premise that the Court and most commentators have not adequately understood it. My goal is to develop a concept
of coercion that is a broader or thickeryet still determinateconcept than its advocates have employed. If I can do so, then we would have another option for Establishment Clause analysis beyond the alternatives of adopting a narrow concept of coercion or rejecting the concept of coercion as a necessary feature of that analysis. Borrowing from considerations on the concept of power, I will suggest as my thesis that an Establishment Clause violation is indeed necessarily a matter of coercion, but coercion understood in its implicit rather than its overt dimension. I will make this argument about the concept of coercion by introducing three further concepts: the concept of civic identity, the concept of religious identity, and, somewhat inelegantly, the concept of government's "taking a position" on the truth or worth of religion. The general theory I am proposing, therefore, has two central components: first, a broader, more inclusive concept of coercion; and second, a concept I am calling position-taking, the idea that nonestablishment means that government is not supposed to take a position on the truth or worth of religion, religious beliefs, religious values, or religious practices.