Tag Archives: Religious Neutrality

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Flanders on Koppelman and Religious Neutrality

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.

Ledewitz on Neutrality

Bruce Ledewitz (Duquesne University – School of Law) has posted Toward a Meaning – Full Establishment Clause Neutrality. The abstract follows.

Some form of government neutrality toward religion, in contrast to a more pro-religion stance or a turn toward nonjusticiability, is the only interpretation of the Establishment Clause that can potentially lead to a national consensus concerning the proper role of religion in American public life. But to achieve that goal, neutrality theory must acknowledge and engage the need for the expressions of deep meaning on public occasions and in the public square generally. Current neutrality doctrine promotes a silent and empty public square. This article proposes an interpretation of neutrality that would allow a symbol-rich, meaning-full public square without violating theEstablishment Clause. While such morally substantive symbolic government speech is more easily justified as neutral when religious imagery is avoided, even the utilization by government of traditional religious language and symbols may be understood as neutral toward religion as long as the overall content of the public square is not religious. This more vibrant form of government neutrality invites more, rather than less, expression into public life. The article utilizes the context of legislative and high school graduation prayer to illustrate the difference between current neutrality doctrine and meaning-full neutrality.

Koppelman, “Defending American Religious Neutrality”

This November, Harvard University Press will release Defending American Religious Neutrality by Andrew Koppelman (Northwestern University School of Law). The publisher’s description follows.

Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality—more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate.

The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity. Continue reading