Richard McAdams has written a wonderful post that challenges me to clarify and further elaborate my theory of the Establishment Clause, as elaborated in my recent book Liberty of Conscience.
Two prefatory remarks. First, I do not think that the various policies flowing from the Establishment Clause are merely instrumental to equal respect. I believe that they are concrete expressions of the idea of equal respect. Equal respect as a political value has little force unless and until it is cashed out in the form of concrete constitutional principles, and the interpretation of those principles. But these principles embody equal respect, in much the way that an expression of love embodies (and is not just a means to) love.
Second, I think that most recent Establishment Clause doctrine is on the right track (at least until we get to the disturbing issue of standing, where I believe the Seventh Circuit was entirely correct and the Supreme Court dangerously in error in Hein, an issue I take up in my 2006 Supreme Court Foreword in the 2007 Harvard Law Review). At one point, with cases such as Grand Rapids and Aguilar, I believe that the Court went too far in the direction of understanding separation to be a value in itself; along with later cases such as Agostini (which overrruled Aguilar), I criticize those few earlier cases, arguing that the "entanglement" prong of the Lemon test is potentially quite misleading if taken in isolation from other more fundamental values (as Justice O'Connor consistently asserted). Separation, I argue, is not a fundamental value in itself: it must be made sense of in terms of more fundamental values such as liberty and equality. Nobody wants total separation of church and state: we all believe that a burning church should get the aid of the fire department, that the public water system should serve churches as well as secular buildings, and so forth. Why? Because we see that it would be utterly unfair to deny churches basic public services that everyone else gets. How much separation do we want, and of what sort, and where: these are the questions we need to ask. My book argues that we can only answer them with recourse to the more fundamental values.