Substantive Neutrality, Realism, and Government-Sponsored Religious Speech after <i>Kennedy v. Bremerton School District</i>

Abstract Douglas Laycock’s theory of substantive neutrality has had much to say about contemporary debates in U.S. law and religion, particularly for courts and scholars grappling with the problem of religious exemptions from general laws. It is fair to say that the U.S. Supreme Court has in many respects adopted Laycock’s approach in free exercise cases. But Laycock’s work on the Establishment Clause side has unfortunately been less influential on the Supreme Court. In the context of Establishment Clause challenges to government-sponsored religious expression, Laycock has argued that the government endorsement of religion through official sponsorship of religious speech violates substantive neutrality because government endorsement of religion encourages religious belief without leaving room for private individual choice. But the court has moved away from any consideration of endorsement or substantive neutrality in cases considering challenges to official religious expression, focusing instead on vaguely-described historical practices and understandings. In this article, the author explains the correctness and insightfulness of Laycock’s theory, which elucidates and justifies the Supreme Court’s now-abandoned endorsement doctrine and explains why the Supreme Court’s current approach to the issue of official religious speech is much more problematic than the substantive neutrality approach.