Can We Make Sense of 'Neutrality' in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative

61 Pages Posted: 18 May 2012 Last revised: 23 May 2012

R. George Wright

Indiana University Robert H. McKinney School of Law

Date Written: May 18, 2012

Abstract

This Article addresses the controversial question of 'neutrality' as a crucial test in a number of important Religion Clause cases. The idea of 'neutrality' in the Religion Clause context turns out to be popular, but unavoidably incoherent.

The Article then explores seven alternative approaches to explaining why Religion Clause neutrality tests persist, despite the evident incoherence of the concept of neutrality. None of these seven alternatives, however, holds much promise for a valuable re-interpretation or rescue of the idea of neutrality.

What is needed is not a re-interpretation of Religion Clause neutrality tests, but a replacement for such tests. The Conclusion offers coherent and useful guidance in addressing many Religion Clause cases, based on a surprising adaptation of elements from the apparently remote area of Takings Clause and police power regulation jurisprudence.

Suggested Citation

Wright, R. George, Can We Make Sense of 'Neutrality' in the Religion Clause Cases?: Seven Rescue Attempts, and a Viable Alternative (May 18, 2012). Available at SSRN: https://ssrn.com/abstract=2062418 or http://dx.doi.org/10.2139/ssrn.2062418

R. George Wright (Contact Author)

Indiana University Robert H. McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

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