Article Title

Beyond Separation and Neutrality: “Non ‘Market Participant’” As the Central Metaphor of Religion Clause Jurisprudence

Publication Title

Washington University Jurisprudence Review


A metaphor has always dominated the Supreme Court's religion clause jurisprudence. The metaphor prescribes the proper legal and political relationship between religion and government; it is a constitutional norm. This Article traces the historical development of this central metaphor—from separation to neutrality—and finds both metaphors lacking in normative adequacy. These inadequacies lead to the proposal of a new metaphor: government as a "non 'market participant.'" This metaphor essentially combines Justice Holmes's "marketplace of ideas" with the "market participant" in the Court's Dormant Commerce Clause jurisprudence, but with an important twist. The normative obligations of the new metaphor prevent government from regulating the behavior of citizen competitors in the "religion market" (free exercise) and from becoming a competitor or engaging in competitor behavior in that market (establishment). Both sets of governmental duties are aimed at achieving the single goal of maximal religious liberty for citizens.