Tag Archives: State Neutrality

“A Coat of Many Colors”

In this post, I want to pick up some of the themes I alluded to in my first post and respond to Marc’s observations here and Mark’s observations here. The title of this post is from Justice Harlan’s discussion of neutrality in Bd. of Educ. v. Allen, 392 U.S. 236, 249 (1968)(Harlan, J., concurring).

Marc points out the inherent uncertainty as to the meaning of “neutrality” within each system. Indeed, I agree that there is great indeterminacy in both systems; and there are different judicial and academic interpretations. In fact, one of the premises in my book was that – even though the term is used frequently in constitutional decisions in both countries – we don’t really know enough about what neutrality means in each system. Given this uncertainty, I advocated for a contextual inquiry into the meaning in each system before turning to a comparative perspective.

The German Federal Constitutional Court offered two noteworthy interpretations of neutrality in its landmark Crucifix and Headscarf decisions. In my last post, I quoted the Crucifix decision as saying that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.” In the Headscarf case, the court offered its most elaborate discussion of state neutrality to date, stating that

the religious and ideological neutrality required of the state is not to be understood as a  distancing attitude in the sense of a strict separation of state and church, but as an open and comprehensive one, encouraging freedom of faith equally for all beliefs. Article 4.1 and 4.2 of the Basic Law also contain a positive requirement to safeguard the space for active exercise of religious conviction and the realisation of autonomous personality in the area of ideology and religion. The state is prohibited only from exercising deliberate influence in the service of a particular political or ideological tendency or expressly or impliedly identifying itself by way of measures originated by it or attributable to it with a particular belief or a particular ideology and in this way itself endangering religious peace in a society. The principle of religious and ideological neutrality also bars the state from evaluating the faith and doctrine of a religious group as such.

So here we have an example of the court itself setting up different interpretations of neutrality. (Professor Markus Thiel – among other insightful observations – recently raised some interesting questions regarding the interpretive role of the Federal Constitutional Court in relation to academic scholarship in our exchange here.)

A quick final point about taxation, an issue raised in the comments to Mark’s post. One of the more striking features of the German system is the concept of “limping separation” that allows for certain benefits of state-recognized religious bodies – perhaps most notably from the U.S. perspective, the collection of church taxes by the state. Mark pointed out correctly that the German church tax may be avoided by resigning church membership. And, as some may remember, the German Federal Administrative Court last year addressed the question of resigning church membership (reported for example here). Moreover, under the jurisprudence of the European Court of Human Rights, while nonadherents may be taxed by an established state church for delegated state functions (such as keeping birth and death records, maintaining cemeteries or performing marriages) they may not be taxed for religious activities. I’ve written about some of those funding aspects in comparative perspective in my recent article “Transnational Nonestablishment” published in the George Washington Law Review and available online here.

And with that, I’ll leave Lautsi and symbols for next time.

If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same.

On a wide-angle view, starting from opposite sides of the religion-state relationship spectrum—a historically strong notion of separationism on the U.S. side and close cooperation on the German side—it seems that while the degree of separation may be declining in the United States, it is increasing in Germany. And the language of neutrality tracks those developments. But sufficient room for the individual interpretation of neutrality remains in both systems.

A more detailed view, however, might focus on the diverging meanings of the term. The substantive content of neutrality in both constitutional systems is characterized by significant underlying indeterminacy. Neutrality is notoriously ambiguous in both systems; it seems almost impossible to define an abstract, universally applicable, single meaning. This indeterminacy has led some scholars to argue that we should simply do away with the concept of neutrality in religion-state relations. But while I am not going that far, we should not expect too much from the neutrality principle in terms of resolving individual disputes.

To some extent, we are also dealing with a moving target. Take for example parity between the Catholic and Lutheran churches in Germany. Equal treatment of the two would have arguably satisfied the neutrality requirement in the past, but given the changing composition of the population that is likely not the case anymore. Similarly, the growing number of nonbelievers in the United States poses a challenge. So the doctrinal framework must be squared with changing societal realities.

Ultimately, the point is that what initially seems to be the same in fact is not. The underlying trajectory is different in that the starting points might be identified as polar opposites: a strong notion of separation in the United States, and an extensive system of cooperation in Germany. However, we can observe a narrowing gap between the two systems that is reflected in the use of the language of neutrality. In the United States, neutrality as it is used today means “less distance” between religion and state. In Germany, conversely, neutrality means “more distance” between religion and state.

van Ooijen, “Religious Symbols in Public Functions: Unveiling State Neutrality”

This month, Intersentia Publishing will publish Religious Symbols in Public Functions: Unveiling State Neutrality: A Comparative Analysis of Dutch, English and French Justifications for Limiting the Freedom of Public Officials to Display Religious Symbols by Hana M.A.E. van Ooijen (LL.M, Utrecht University).  The publisher’s description follows.

Religious symbols are loaded with meaning, not only for those who display them. They have generated controversy in many circles, be they religious or secular, public or private, and within or outside academia. Debate has taken place throughout Europe and beyond, at times leading to limitations or bans of religious symbols. While this debate might seem whimsical in occasional flare-ups, it merits closer scrutiny, precisely because it is part of a long-running debate, it crosses boundaries and because it touches upon larger underlying questions.

This book singles out a particularly contentious issue: religious symbols in public functions and it focuses on the judiciary, the police and public education. It is often argued that public officials in these functions should be ‘neutral’ which consequently implies that they cannot display religious symbols. This book aims to unravel this line of thought to the core.

It disentangles the debate as it has been conducted in the Netherlands and studies the concept of state neutrality in depth. Furthermore, it appraises the arguments put forward against the background of three contexts: the European Convention on Human Rights, France and England. It critically questions whether state neutrality can necessitate and/or even justify limitations on the freedom of public officials to display religious symbols. Although this book is the result of an academic legal study, it can be read by students, academics, professionals, or anyone interested in the issue of religious symbols in public functions.

Establishment Clause Creep and Antitrust Creep

This will be the end of the line for the back-and-forth between Barak and me, so let me thank Barak for his very thoughtful and cordial correspondence on these interesting questions.  This is not a moment to say “see you in court,” but to hope that our dialogue has furthered our respective understanding of the issues.

In earlier posts, I hinted that application of the antitrust laws to rabbinical or pastoral hiring practices would run afoul of the Establishment Clause, particularly in light of the Supreme Court’s recent decision in Hosanna-Tabor Evangelical Lutheran Church, which recognized a “ministerial exception” to the application of antidiscrimination law to the hiring of religious ministers.  In my view, a fair reading of Hosanna-Tabor would prevent an antitrust suit involving rabbinical hiring.  However, for purposes of this post, I would like to respond more generally to Barak’s claim that “entanglement” concerns lead to “Establishment Clause creep,” insulating from legal review the harmful decisions of religious organizations.

Barak’s concerns over “creep” fall into two categories.  One concerns the externalization of costs from religious organizations to others–his example of people cutting across the neighbor’s lawn to get to church.  This is an easy case for me, because religious organizations should not be allowed to justify externalizing costs onto others in the name of religious independence.   Of course,  one could argue that all purely private activities end up externalizing costs or benefits onto others (i.e., functional families make for happy neighborhoods, dysfunctional ones for unhappy neighborhoods), but I’m confident that sensible lines can be drawn between what is mostly internal and what is significantly external.

What about cases where the harms, if any, are all or mostly internalized within the religious organization or by its members?   Consider two examples:  ritualistic human sacrifice of willing victims and regulations applied to require churches to install wheelchair ramps.  In neither of these cases is the Establishment Clause or free exercise defense plausible.   In the human sacrifice case, the act is  morally abhorrent and the legal prohibition clear.  Any ostensible free exercise interest is outweighed by the state’s legitimate interest in preserving human life and there is no danger of entanglement.  In the wheelchair ramp case, the legal requirement concerns a physical structure far enough removed from the purposes and values of the religious organization that there is little risk that enforcing the building code would require civil authorities to inquire into the existential purposes of the church and their relationship to the civil law.

Not so for antitrust law (and perhaps other business torts as well).  Antitrust is not justified on the grounds that collaboration among rivals is inherently immoral or  injurious.  Rather, it is justified on instrumental grounds–that competition among business firms tends to increase output and decrease prices to the benefit of consumers.  As I said in earlier posts, it’s awkward to apply this assumption wholesale to religious organizations, since many such organizations would resist the idea that they are ordinary economic actors or exist in order to achieve a better deployment of society’s scarce social resources.  And most religious groups would strongly deny that they would function better if they fostered internal economic rivalry.

For example, for mendicant orders like the Franciscans, the “employees” are bound to an oath of poverty.   They are expressly prohibited from being Chicago School “rational profit-maximizers.”  If the Franciscan order put in place rules to prevent local parishes from trying to attract Franciscan monks through promises of higher compensation, that would run counter to the Sherman Act’s assumption that economic rivalry results in an optimal allocation of resources.  But I’m doubtful that the Sherman Act’s assumption generally holds in the religious organization context.  And, even if it sometimes might hold, it would be  troubling to ask courts to sift through the evidence on different religious organizations to determine when it does hold and when it doesn’t–when the existential purposes of a particular sect would be furthered by greater economic rivalry and when they would not.  That, in my view, would raise serious entanglement problems.  Do we want courts deciding what degree of poverty is appropriate for Franciscan monks?

[I’m amending my post from last night to add a further anecdote from the Christian tradition that illustrates the problem.  In the gospel accounts, when Jesus enters the temple he finds merchants engaging in commerce and drives them out with a whip, saying that God’s house should be one of prayer, not of thievery.  Many churches today are reluctant even to sell sermon tapes or Christian books in the church foyer because of this and similar admonitions.  That this is a concern in the Christian tradition does not make it universally a concern, but it does suggest an entanglement problem if courts were to undertake an inquiry into when commercial transactions are permissible, and when not, within a particular religious tradition.]

In short, I’m less concerned about Establishment Clause creep than about antitrust creep.  Economic rivalry is good sometimes, but not always.  Unlike Barak, I wouldn’t start with the assumption that antitrust law should apply universally to all human endeavor unless a special exception is warranted.  I would start with the assumption that antitrust should apply to business and commerce and only extend it to other endeavors if the case for extension were clear and unencumbered by competing religious, social, or moral values.  As to rabbinical collusion, I’m not persuaded that case has been made.

Organizational Values, Neutral Principles, and Economic Power

Dan Crane, again with great eloquence, concludes his insightful and personal post by asking, “So where does it leave us if bargaining over money is an unavoidable aspect of much religious hiring but that rivalry over finances is contrary to the principles and self-understanding of many religious organizations?”  This is indeed a foundational problem in nations (like ours) that do not rely on state support for religious activity, but I respectfully submit that this is not a new problem.  Indeed, as I wrote in my earlier posts, the suggestion that religious and nonprofit organizations pursue non-pecuniary objectives — as they clearly do — has often been invoked to shield them from antitrust and regulatory scrutiny, which has led to both economic harm and legal confusion.

It has also led to a mistaken expansion of First Amendment defenses.  Some commentators have spread the mistaken fear that applying neutral principles of law to religious organizations requires, as Dan suggests, an inquiry into “the values of each organization.” Michael Helfand, a rising star in the field, has called this fear “Establishment Clause creep” and has contributed to a growing immunity for religious organizations from general laws.  The Supreme Court’s endorsement of the Ministerial Exception this past year codified this immunity from employment and other discrimination laws, which is a decision I support (disclosure: I authored an amicus brief for Hosanna Tabor that articulated a position that did not contradict with either the petitioner or the respondent in the case).  But if Dan means to extend this immunity to protection from the antitrust laws, would he also extend it to other economic torts?  Or contract actions?

Without doubt, religious organizations and committed religious individuals do an enormous amount of social good.  Dan’s parents are paradigmatic cases in point.  But there needs to be a realistic appreciation that the road to good intentions often strays from the beneficent path, and the law is designed to protect the parties injured from actions motivated by these otherwise well-intended actions.  If a pastor who signed an employment contract that included a severance package is dismissed (perhaps the pastor’s and the congregation’s ideologies parted ways), the church is obligated to pay severance.  If they refuse and the pastor sues, there is no need for a court to inquire into the values underlying the religious motivations or values of either the congregation or the pastor.  Applying neutral principles, the court should enforce the contract.  If a church becomes so popular that its members, to gain entrance to the church, pass over a neighbor’s yard and cause damage, the church would be subject to a tort and should pay compensation. Again, no need to inquire into the church’s mission.  These situations extend, especially, to intra-denominational disputes between large and small parties.  What if the neighbor to the large church is a small church?  The smaller congregation relies on neutral law for protection, otherwise an expansive First Amendment could allow an “entanglement” defense to preclude a court’s intervention into the trespass dispute.

The same logic applies to the antitrust laws.  Neutral principles can and should take a court a long way to resolving a dispute over what essentially is an economic tort.  It is true that the Rabbinical Assembly’s control over the labor market infringes upon a congregation’s Free Exercise rights, but a court need not inquire into either those rights nor the  Free Exercise interests of the Rabbinical Assembly as it implements its cartel.  Neutral principles works very well here, and a court that proceeds along this path would succeed in not interfering with religious organizational values much better than a court that refuses to intervene.  Refusing to intervene would allow the economically powerful to infringe on the mission of the weak.

Although my primary area of expertise is antitrust, I know enough about the First Amendment and the Religion Clauses to appreciate how central they are to American life and American law.  But if the First Amendment prevents courts from enforcing secular law according to neutral principles, then it can defeat its own mission (see Saving the First Amendment from Itself).  The law should not and cannot be dogmatic in its refusal to adjudicate disputes between religious organizations because that would remove protections from organizations that need and rely on the law. And it would — again, contrary to the best of intentions — enshrine the powerful and undermine the religious values of those without power.

Temperman (ed.), “The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom”

This November, Martinus Nijhoff Publishers will publish The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom edited by Jeroen Temperman (Erasmus University Rotterdam). The publisher’s description follows.

Increasingly, debates about religious symbols in the public space are reformulated as human rights questions and put before national and international judges. Particularly in the area of education, legitimate interests are manifold and often collide. Children’s educational and religious rights, parental liberties vis-à-vis their children, religious traditions, state obligations in the area of public school education, the state neutrality principle, and the professional rights and duties of teachers are all principles that may warrant priority attention. Each from their own discipline and perspective––ranging from legal (human rights) scholars, (legal) philosophers, political scientists, comparative law scholars, and country-specific legal experts––these experts contribute to the question of whether in the present-day pluralist state there is room for state symbolism (e.g. crucifixes in classroom) or personal religious signs (e.g. cross necklaces or kirpans) or attire (e.g. kippahs or headscarves) in the public school classroom.

Pierik on State Neutrality in Europe

Roland Pierik (University of Amsterdam) has posted State Neutrality and the Limits of Religious Symbolism.  The abstract follows.

The European Court of Human Rights (ECtHR) has concluded that the mandatory display of crucifixes in public school classrooms does not violate the European Convention. Many have questioned whether a supra-national court like the ECtHR is entitled to interfere in issues that are so intimately linked to the national identity of state parties. However, even if one agrees that the Court’s Grand Chamber was in the end correct not to interfere (by employing the margin of appreciation), one can still question whether a constitutional democracy like Italy is justified in enforcing an explicit Christian symbol in public schools.

In this chapter, I analyze the Lautsi case from the perspective of state neutrality. It is generally acknowledged in legal and political philosophy that contemporary constitutional democracies cannot be formally linked to some religious confession, except in a vestigial and largely symbolic sense. As Rajeev Bhargava argues, the idea of neutrality requires a “principled distance” between religion and the state, two entities that should be seen as distinct spheres with their own respective areas. In this chapter, I analyze whether the wish to hold on to such a religiously inspired tradition is consistent with the idea of state neutrality, a central value of contemporary constitutional democratic states. Continue reading