Religious Freedom and "Accommodationist Neutrality": A Non-Neutral Critique

Abstract

This article describes the arc of the Court's decisions in recent years, up through the latest 2005 cases. First, the article demonstrates that despite outcries of judicial insensitivity to religion, the current Court has followed a steady path of expanding religious freedoms and dismantling separationist caselaw that once inspired greater restrictions on government support of religion. The Court has abandoned the wall metaphor, and pursued an accommodationist neutrality approach to religion in an effort to avoid what many observers describe as hostility to religion.

The paper then argues that these developments are a mixed blessing. Government neutrality vis-a-vis religion surely is something to celebrate in contexts where it advances religious liberties. It is an improper pervasive baseline for religious freedoms, however, because it provides both too little and too much protection for religion. Above all, it offers no meaningful boundaries on official support of religion or exemptions from common duties, and represents a potential threat to liberal democratic values.

Keywords: religion, constitutional law, establishment clause, free exercise clause