The Establishment Clause Gag Reflex

In a presentation at the American Association of Law Schools' 2004 Law and Religion Section Meeting, Fred Gedicks, professor at the J Reuben Clark Law School of Brigham Young University, identified what he called a constitutional gag reflex, or the instinctive intellectual revulsion one might feel in response to the doctrine or holding of a case. Gedicks argued that over the last 20 years, the central question of Establishment Clause jurisprudence has shifted from a concern with the meaning of separation of church and state to a concern with treating religion neurally or equally with respect to secular activities. The problem with neutrality, Gedicks argued, is that, taken to its logical extreme, neutrality could justify outcomes that would trigger an Establishment Clause gag reflex. A series of illustrative examples are provided.