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Abstract

The U.S. Supreme Court’s First Amendment Religion Clause doctrine is undergoing a transition between the Court’s older, strict separationist decisions and its current accommodationist approach. This shift can be seen in the Court’s most recent Establishment and Free Exercise Clause decisions, and in particular, in its unanimous Free Speech Clause decision in Shurtleff v. City of Boston, a case which found that the challenger, Harold Shurtleff, had a First Amendment right to raise a flag with a cross on a city flagpole. In many ways, Shurtleff exemplifies the Court’s incremental movement toward an accommodationist Establishment Clause doctrine, and this shift gives some observers cause for concern. Does the move away from strict separation signal the end of doctrinal commitments to religious pluralism and the rights of minorities? In this Article, I attempt to answer that question in the negative by framing the Court’s accommodationist turn in an unexpected historical context—the Civil Rights Movement. The religiously inflected advocacy on display during the Civil Rights Movement suggested a positive role for religion in the public square. At the same time, the Civil Rights Movement was pluralist in tone and vision. This Article offers the opportunity to reflect on the neglected lessons of that movement for church and state.

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