Prof. Coyle writes that "one answer is semantic:
conservatives read 'separation' more narrowly."
It is certainly true that some justices read
"separation" more narrowly than others. Indeed, even
in Everson, where the Court first embraced the idea
that the Establishment Clause requires a "separation
of church and state," the justices disagreed about the
degree of separation required.
But the argument being made by conservatives like Bork
is not about degree.
Instead, they are challenging the basic premise that
there is a relationship between the Establishment
Clause and the Madisonian/Jeffersonian phrase
"separation of church and state."
Moreover, while I agree with Professor Coyle that
"justices do not necessarily endorse every generic,
boilerplate phrase included in an opinion that they
join," the phrase "separation of church and state" is
enough of a flashpoint for conservatives that I was a
little surprised to see it described as a First
Amendment "command" by a unanimous Court.
Would the conservatives' acceptance of this statement
be of more import in a decision demanding what Prof.
Coyle describes as "strict neutrality"? Absolutely.
But, if nothing else, the conservatives' acceptance of
the "separation of curch and state" phrase in Cutter
gives those opposing the separation-is-a-myth argument
an opportunity to cite language in a unanimous
Rehnquist Court decision that flatly contradicts the
myth argument.
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