The Underlying Unity of Separation and Neutrality
University of Virginia School of Law ; University of Texas Law School
Recent scholarship on religious liberty has posited a fundamental conflict between separation of church and state and government neutrality toward religion. This article argues that there is no inconsistency, and that the Supreme Court has not understood the two concepts to be inconsistent. In the Court's view, separation has always been a means of maximizing religious liberty, of minimizing government interference with religion, and thus, of implementing neutrality among faiths and between faiths. Even Lemon v. Kurtzman, the symbol of strict separation, took its test almost verbatim from the elaboration of benevolent neutrality in Abington School District v. Schempp. The Court did have versions of its neutrality principle, with two different baselines for measuring neutrality. In Lemon and many other school aid cases, the Court's baseline was government inactivity, so that providing money was treated as aid to religion. In other cases, most notably the religious speech cases but also school aid cases involving transportation, textbooks, and some services, the Court took as its baseline the government's treatment of analogous secular activity. Treating religion like analogous secular activity was neutral; not doing so was discrimination. The Court did not see any inconsistency between these two principles. Both are set out in Everson v. Board of Education. Recent scholarship identifying Widmar v. Vincent as the origin of the neutrality theory overlooks Everson, the religious speech cases of the 1940s, the long history of neutrality in the Court's rhetoric, and the unanimity of Widmar itself. No one on the Court thought that Widmar was inconsistent with Lemon or that it announced any new principle. The boundaries of the two versions of neutrality were ill-defined, and Rosenberger v. Rector of the University of Virginia crystallized the absence of any boundary. Both versions of neutrality can expand to cover the whole universe of cases. Some deeper principle is needed to mediate between the two versions of neutrality. The deeper baseline is minimizing government incentives to change religious belief and behavior, which I have called substantive neutrality. This leads to the analogous secular activity baseline in most funding cases, because equal funding creates no incentives to change behavior; a government offer to fund an activity only if it is secularized is a powerful incentive to secularization. This principle is also consistent with separation, because it maximally separates religion from government influence. Those who seek equal funding for social services delivered by religious organizations should not attack separation, which has important benefits that neither side in the funding debate should be willing to abandon.
Number of Pages in PDF File: 50
JEL Classification: K19
Date posted: June 9, 1997
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