The Impossibility of Neutrality? How Courts Engage with the Neutrality Argument

Abstract

The principle of state neutrality vis-à-vis religion and belief is contested and illusive. Some scholars even label it an impossible principle. Nevertheless, the meanings and functions assigned to neutrality are often determinative of, among others, the scope of the right to manifest one’s religion in public institutions. Focusing on recent developments in Europe, this paper makes two claims: one conceptual, the other doctrinal. The conceptual claim is that neutrality can be deployed either as a shield to protect freedom of religion and belief or as a sword to strike religious claims down. Given that lawmakers and policymakers are increasingly relying on the second function of neutrality, the paper goes on to evaluate how the courts have responded. The doctrinal claim of the paper is that courts can engage – and have engaged – with the neutrality argument in three ways: (1) through deference to other interpreters of neutrality; (2) through substantive interpretation of the neutrality principle; and (3) through circumvention of the neutrality argument. The paper suggests that the third approach may well be preferable.