Chad Flanders (Saint Louis University School of Law) has posted Can We Please Stop Talking About Neutrality?: Koppelman Between Scalia and Rawls. The abstract follows.
In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.
Although Andy Koppelman positions himself in much the same conceptual space as Laycock, I think he makes (and would probably admit to making) a version of the “Puritan mistake.” Koppelman says that he is interested in avoiding the extreme of radical secularism that favors “the complete eradication of religion from public life” but also the extreme of religious traditionalism, which sees nothing wrong with “frank endorsement of religious propositions.”
Koppelman, like Laycock, wants to find a way between these two extremes. But instead of rejecting the traditionalist view outright, Koppelman instead insists that religion is a good thing (this is the Puritan mistake), but — partly in a bid to appease the secularists — that religion ought to be defined at a very high level of abstraction. We can affirm, in Koppelman’s phrase, “religion in general,” but not any religion in particular. In short, the Puritan mistake was, in a way, a particularly Puritan mistake; the Puritans made the error of supporting religious freedom only for Puritans. They should have instead supported “religion in general.”
It’s a neat trick, if it works: Koppelman can have his cake and eat it too. He defend the value of religion without defending the value of any religion in particular. And his solution is neat on another level as well, because it defends a practical answer to a theoretical puzzle. The theoretical puzzle is: How can the state possibly support religion, even give it special protection, but remain neutral? The practical answer Koppelman offers is simply to look at American practice and see what we have done. It seems impossible that a state could promote religion and be neutral, but in America we have done it, surprisingly. In practice we have done what seems to be impossible in theory.
As a theorist, I find this result unsatisfying and more than a little depressing, and I find myself wanting to put pressure on Koppelman from both sides. I want to say, with the radical secularist, that Koppelman’s abstract “religion in general” is too much like religion to be neutral; but I also want to say, with the religious traditionalist, that religion in general may not capture perfectly what many (or most) of us mean by religion. So I want to try putting Koppelman between the traditionalist and the secularist — between Scalia and Rawls, as it were — and see where we end up.