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Excerpted From: Caroline Mala Corbin, The Supreme Court's Facilitation of White Christian Nationalism, 71 Alabama Law Review 833 (2020) (228 Footnotes)(Full Document)

CarolineMalaCorbinIn 1985, student and marching-band member Doug Jager challenged his public high school's practice of starting its football games with an invocation. Historically, the Georgia public school had invited a Christian minister, and the prayers were often explicitly Christian. Jager, a Native-American who did not practice Christianity, complained that the Christian invocations violated his religious beliefs. He also “had had enough of being ridiculed for not bowing his head as Jesus was invoked on the public address system.” In response, the school proposed allowing school clubs to select a student, parent, or school staff member to give an invocation instead. Under this “equal access” plan, the school would not monitor the content. In Georgia's Douglas County School District, where most inhabitants were Protestant Christians, such a solution would have resulted in overwhelmingly Christian invocations. It was this proposal that Judge Johnson of the Eleventh Circuit Court of Appeals held violated the Establishment Clause in Jager v. Douglas County School District. contribution to the Judge Frank M. Johnson Jr. Centennial Symposium makes three points. First, Judge Johnson's analysis in Jager was spot-on. He was right to apply the Lemon test rather than the Marsh test, and he was right to find that both the primary purpose and primary effect of the school district's plan was to continue Christian invocations in violation of the Establishment Clause.

Second, I argue that government-sponsored Christianity, while always troubling under the Establishment Clause, becomes even more so when viewed through the lens of this country's growing Christian nationalism. Christian nationalism is the belief that the United States “has been and should always be distinctively Christian in its identity, values, sacred symbols and policies.” It conceives of religion and government as wholly overlapping rather than separate spheres. Government-sponsored Christianity both reflects and furthers Christian nationalism.

Growing Christian nationalism is a problem because recent social science has found that Christian nationalism is strongly linked to hostility towards out-groups, and this hostility paves the way for hostile public policy. Consequently, Christian nationalism does not simply symbolically exclude some from their community and country; it may lead to actual exclusion. Establishment Clause, as the Supreme Court has long held, bans the government from favoring some religions over others. This commitment to separation of church and state, however, is fading, as the Supreme Court moves towards an approach that allows government-sponsored Christianity. Nowhere is this more apparent than the Supreme Court's two most recent Establishment Clause decisions.

First, in Town of Greece v. Galloway, the Supreme Court rejected an Establishment Clause challenge to the town's explicitly Christian legislative prayers. Second, in American Legion v. American Humanist Ass'n, the Court held that a forty-foot Latin cross, located adjacent to a busy highway intersection in Bladensburg, Maryland, and designated as a war memorial to World War I veterans, did not violate the Establishment Clause. emerging social science confirms that there was good reason for the Establishment Clause ban on preferring one religion over others. Such government favoritism does not merely cause offense but embodies and encourages Christian nationalism, with its discriminatory attitudes and policies. In other words, as James Madison warned in his Memorial and Remonstrance, government- favored religion helps create second-class citizens. Accordingly, my third point is that the best way to advance Establishment Clause values and the equality of all Americans, regardless of religious belief, is to eliminate government-sponsored Christianity, whether it be Christian prayers or Christian symbols.

Part I examines Judge Johnson's decision in Jager v. Douglas County School District, along with some Establishment Clause basics.

Part II explains Christian nationalism and argues that government-sponsored Christianity reflects and exacerbates Christian nationalism. In particular, it summarizes the social science that finds alignment between Christian nationalism and discriminatory attitudes and policies.

Part III contends that to help curb Christian nationalism and its negative effects, the Court's move towards allowing government-sponsored Christianity ought to be reversed. Such a result is more in keeping with the Establishment Clause goal of avoiding a caste system based on religious belief.

[. . .]

Government-sponsored Christianity is one manifestation of Christian nationalism. As the sociological evidence establishes, the harm of Christian nationalism is not just offense but also discriminatory attitudes and discriminatory policies. Even if not specifically motivated by Christian nationalism, government-sponsored Christianity nonetheless advances the Christian-nationalist belief that true Americans are Christian-Americans. Everyone else simply is not accorded the same respect, benefits, or rights. This result is exactly what the Establishment Clause aims to prevent. The insight embedded in Establishment Clause doctrine that the government should not favor one religion over others is borne out by contemporary social science. Consequently, instead of eviscerating the separation of church and state, the principle ought to be recognized as more important than ever. In sum, government-sponsored Christianity like the predominantly Christian prayers in Town of Greece or Jager or predominantly Christian displays like the Bladensburg Latin cross should violate the Constitution.

Professor of Law, University of Miami School of Law; B.A., Harvard University; J.D., Columbia Law School.

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