"Religion-Neutral" Jurisprudence: An Examination of Its Meanings and End
Smith, L. Scott, The William and Mary Bill of Rights Journal
The United States Supreme Court has in recent years, more than ever before, rested its jurisprudence of religion largely upon the notion of neutrality. The free exercise of religion, the Court has asserted, does not guarantee a person the right, based upon religious observance, to violate a law that is religiously neutral and of general applicability.! The nonestablishment norm of the Constitution is accordingly not violated so long as state aid to an instrumentality of religion is allocated on the basis of neutral criteria, neither favoring nor disfavoring religion, and is available to both religious and secular beneficiaries on a nondiscriminatory basis.2 Furthermore, when a neutral government program provides aid directly to a broad class of individuals who subsequently direct the aid to religious institutions, there is no violation of the Establishment Clause.3 In addition to these recent pronouncements, the Court has reaffirmed the rather long-standing principle that government policies neutral toward religion, although incidentally benefitting it, are permissible under the Establishment Clause.4 The most compelling question arising from such judicial positions is whether the concept of neutrality is essential, even helpful, to formulating a jurisprudence of religion. My answer to this question is in the negative. I am inclined to reinforce Rawls' s assessment, "that the term neutrality is unfortunate[, because] some of its connotations are highly misleading, [while] others suggest altogether impracticable principles,"5 by maintaining that the meanings of the term considered in this Article are, one and all, both misleading and impracticable.
Neutrality is an instrumental, or second-order, value.6 When considering its meaning in any particular context, one must invariably ask: "Neutral how and as to what?" This question suggests that, in a political context, the content of the term depends upon the theory of state responsibility one espouses. One may clarify this principle by turning to business. If an individual adopts a laissez-faire approach to commercial activity, neutrality will stand for little or no state intervention. If yet another individual accepts a socialist theory of economics, neutrality will include a vast amount of state involvement in the means of production and in issues of distributive justice. Political theory is, in other words, intricately bound up with the particular meaning assigned to the term "neutrality."
Elsewhere I have advanced a jurisprudence of religion typology,7 in which a political theory corresponds to a particular type of jurisprudential position. I propose in the present Article to elucidate the constitutional meanings of neutrality by utilizing the same typology. A caveat is in order. The typology is intended only as a vehicle by which to explore the various political meanings of neutrality in the jurisprudence of religion and should be judged in this instance solely upon the basis of whether it succeeds in accomplishing that goal. A typology is nothing more than a way to understand what is. The central concern of this Article is the illumination of the United States Supreme Court's jurisprudence of religion rather than an attempt, which would certainly be granthose and misguided, to demonstrate that the history of Supreme Court jurisprudence must always imitate some theory of understanding it. The fact is that the judicial opinions of a single Justice can be, and often are, impossible to reconcile on philosophical grounds. A typology, even if it does nothing else, can bring this stubborn fact into clear focus.
The typology may be set forth as follows:
The correlation of jurisprudential positions with political theories is as follows: (1) separationism and narrow free exercise, corresponding to the theory of classical liberalism; (2) separationism and expansive free exercise, exemplifying the theory of communitarianism; (3) accommodationism and expansive free exercise, characterizing the theory of revised liberalism; and (4) accommodationism and narrow free exercise, denoting the theory of de facto establishmentarianism. …