ABSTRACT
This chapter demonstrates that Gerard Bradley’s argument overstates the success of the privatization thesis in influencing First Amendment doctrine. It argues that in order to best understand the doctrinal debates surrounding the Establishment Clause and substantive due process, it is necessary to focus on the Justices’ understanding of the role of religion in public life. The chapter examines both the Establishment Clause and the substantive due process doctrine. There has been a welcome shift away from the view that religion should be privatized. The chapter suggests how the current doctrine should be reformulated to allow religion to play a more active public role. The public role for religion involved in the religious symbol cases may seem rather innocuous. The religious symbol cases do not inevitably reflect the privatization theory. Perhaps the “secular government” explanation overstates the consequences of Justice Blackmun’s position. Granted, he did disavow any hostility or indifference to religion.
