Republican nominees have often been disappointments for originalists, but Neil Gorsuch is turning out to be the exception to this trend.
“The Establishment Clause cannot be reduced to a single principle,” Christopher Lund observes in a recent article. “But if it could–if there is a single premise that has animated the Supreme Court’s approach over the past fifty years–it would be the neutrality principle. Government must be neutral toward religion . . . .”
Indeed, for reasons we will notice, the proposition that government should remain “neutral” in matters of religion appears to be virtually irresistible. Which leads to embarrassment: that is because, upon closer inspection, religious neutrality also turns out to be impossible. Worse yet, the attempt to maintain religious neutrality subtly works to undermine the constitutional commitment to religious freedom. This essay briefly considers the predicament and reflects on possible responses.
The Imperative of Religious Neutrality
The Court’s (and the scholars’) resolute, almost obsessive commitment to religious neutrality is understandable. For one thing, it has seemed that full religious freedom requires more than mere toleration; it requires religious equality. Equality, in turn, entails neutrality. Or at least so it may seem.
Thus, when Virginians were adopting their Declaration of Rights, George Mason introduced a proposal to protect “the fullest Toleration in the Exercise of Religion.” A youthful James Madison objected, and succeeded in having Mason’s proposal replaced by a measure providing that “all men are equally entitled to the full and free exercise of religion . . . .” But if religious freedom requires religious equality, doesn’t religious equality likewise entail religious neutrality? How can a government that favors or endorses one or more religions over others be said to treat people of different faiths (or none) equally?
From a more pragmatic perspective, religious neutrality may seem to be a practical political necessity. In a world in which citizens identify with a variety of different faiths or worldviews, a government that favors one of those faiths or worldviews will inevitably risk alienating the adherents of competing views. Better for government to remain neutrally above the fray. Thus, as religious pluralism has intensified, governmental neutrality toward religion has come to seem all the more mandatory.
The Impossibility of Religious Neutrality
Alas, as neutrality has become more imperative, it has also become more conspicuously impossible. I have discussed the difficulties at length elsewhere; here I will only summarize the core criticisms.
The impossibility of religious neutrality was vividly illustrated in Epperson v. Arkansas (1968), in which the Supreme Court struck down a 1920s era law that prohibited the teaching of evolution in the Arkansas public schools. In Epperson the Court was more than normally emphatic about the obligation of neutrality. “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice,” the Court declared. Consequently, “the State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute.” The Court also said that evolution is inconsistent with the teachings of some religions, and that Arkansas had adopted the law in order to insulate such religions against contrary views. That religion-protective purpose made the law less than neutral toward religion, and hence constitutionally invalid.
All this may seem logical enough. But on the Court’s own premises– namely, that evolution directly contradicts the teachings of some religions, and that the Constitution imposes an “absolute” prohibition against public school teachings that “aid or oppose” any religion– it follows with at least equal logical force that the teaching of evolution in the public schools is constitutionally prohibited. Thus, without going beyond the Court’s own assertions, one can logically conclude (a) that the Constitution forbids states to prohibit the teaching of evolution and (b) that the Constitution forbids states to teach evolution.
In short, whether the schools teach evolution or respectfully decline to teach it, they depart from neutrality. Nor is the difficulty limited to measures or laws addressing issues that everyone thinks of as touching on some people’s religion– issues like evolution, or school prayer. Numerous laws at least implicitly reject some people’s religious beliefs. When the nation wages war, it tacitly but obviously rejects the views of religious pacifists, such as Quakers. Laws requiring parents to obtain medical treatment for their children reject the beliefs of parents– Christian Scientists and others– who are religiously opposed to such treatment. Indeed, in a nation of over three hundred million diversely-minded citizens, it is a fair bet that almost anything government says or does will be at odds with the religious beliefs of at least a few citizens. And yet if the government were to eschew such policies and laws in deference to these beliefs, it would thereby violate neutrality in the same way the Epperson Court said Arkansas had done with its anti-evolution law.
Theorists have struggled to massage or reshape the ideal of neutrality to avoid such difficulties; I and others have criticized those efforts at length elsewhere. For now I will say only this much: the notion of “neutrality” can be formulated in a variety of different ways, and so it is possible to devise formulations that avoid the criticisms outlined above. (Indeed, in a moment I myself will suggest such a conception– albeit not one that the enthusiasts of neutrality are likely to find attractive.) Upon examination, though, these more refined conceptions typically save the word but not the substance; they articulate positions that can be labeled “neutrality” but that do not deliver the impartial, non-alienating inclusiveness that made neutrality seem attractive in the first place.
Neutrality and the Subversion of Religious Freedom.
Impossibility is an inconvenient feature in an ideal, but with neutrality the difficulties run deeper. The ideal of neutrality, and the attempt to maintain it, actually work to undermine the historic commitment to religious freedom that many would regard as a central achievement and feature of the American constitutional order (and from which, ironically, the requirement of neutrality is typically derived).
The problem is that, historically, justifications for religious freedom have typically depended on (contestable, and contested) religious premises. But neutrality would seem to rule out reliance on these premises– how after all can a government that accepts and acts on contestable religious premises be deemed religiously neutral?– and thereby to subvert the foundations of our constitutional commitment.
Perhaps the most influential justification for religious freedom has been what we can call the “voluntary faith” rationale, articulated in different forms by luminaries like Roger Williams, John Locke, Thomas Jefferson, and James Madison. The rationale can be broken down into two main claims. First, religious goods or duties are of extraordinary value or importance, surpassing more mundane goods and duties. Second, religious goods (like eternal salvation) can be obtained, and religious duties can be discharged, only by a sincere and voluntary exercise of faith. Both these claims are theological in character; not only that, but they are propositions upon which religious believers and theologians (and others) have disagreed. Consequently, it would seem that government could not endorse or act upon these propositions without violating the posited obligation of religious neutrality.
Remove these claims, though, and the classic justification for religious freedom loses its force. In this way, a neutrality-oriented religious freedom, by rendering its major supporting rationale inadmissible, can have a self-subverting quality.
To make the point less abstract, consider Thomas Jefferson’s Virginia Statute for Religious Freedom, arguably the seminal legal enactment of religious freedom in the United States. The Statute began with an eloquent assertion of its justification: “Almighty God hath created the mind free,” and governmental coercion in matters of religion is “a departure from the plan of the holy author of our religion, who being lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do.” This justification is plainly an endorsement of a (contested) religious position. Ironically, therefore, under any uncontorted application of current constitutional doctrine, which in the spirit of neutrality purports to forbid government to endorse or disapprove of religion, Jefferson’s celebrated statute is patently unconstitutional as a violation of religious freedom.
Of course, the “voluntary faith” rationale is not the only historical rationale for religious freedom. But a similar dynamic can apply to other classic rationales as well. Modern scholars like Douglas Laycock and Kent Greenawalt agree that it is impermissible today to justify religious freedom on the basis of such theological rationales. They suppose that theological justifications can be replaced by purely secular rationales. Maybe. We can hope so. But for now let’s just say that this supposition is highly questionable (as John Garvey and I and others have argued), and its fragility becomes ever more apparent as more critics and scholars gravitate toward the conclusion that there is no sufficient justification for giving special legal protection to religion.
Is there anything here really to worry about, though, or is this just an instance of an academically contrived conundrum without practical consequence? It’s hard to say. In the short run, the lack of persuasive and admissible supporting rationales for religious freedom might not matter much. Tradition and precedent and public opinion may for now be enough to sustain the inherited commitment to religious freedom. But in the long run . . . . who knows? Nor do recent policy positions of the Obama Administration offer much comfort in this regard.
The discussion thus far might suggest that Madison and like-minded thinkers and actors put religious freedom on a course of self-cancellation. Madison insisted, once again, that religious freedom meant religious equality; equality seems to entail neutrality; neutrality in turn works to exclude the justifications that Madison and Jefferson and others gave for religious freedom, and thereby undercuts the constitutional commitment. So, did Madison and Jefferson and kindred thinkers commit an embarrassing blunder that portended the subversion of their own professed commitments?
Not necessarily. Madison might have contemplated– and in any case we ourselves could embrace– a limited notion of equality-neutrality that would not have the subversive implications discussed above. For example, hardly anyone wants a citizen’s eligibility to vote, or to run for office, or to receive Social Security payments, to depend upon any profession (or denial) of faith. It seems natural enough to describe that sort of local, religion-blind impartiality as . . . “religious neutrality.” Moreover, this modest conception of religious neutrality could be associated with a lean version of religious equality in which, to borrow and adapt a phrase from Justice Sandra Day O’Connor, nobody’s “standing in the political community” is dependent on his or her faith (or lack thereof). In this view, Christians, Jews, Muslims, Hindus, agnostics, and atheists alike are entitled– equally entitled– to vote, run for office, serve on juries, drive cars, and enjoy all of the rights and privileges of citizens.
On this understanding, Madison might plausibly have supposed that religious freedom, religious equality, and by implication religious neutrality were complementary rather than conflicting notions. But this modest conception of equality-neutrality– namely, as the impartial, religion-blind application of laws and legal rights– is emphatically not what contemporary proponents of the ideal have in mind. They contemplate neutrality, rather, as a sort of meta-principle or master ideal against which all laws and practices (such as, say, public monuments), all governmental purposes (such as, say, Arkansas’s presumed purpose for adopting its anti-evolution law), and even all government rationales or public justifications (such as, say, the classic justifications for religious freedom) must be measured. And they want an equality that ensures, as Justice O’Connor prescribed, that no one is made to feel like “an outsider” or a “second-class citizen.”
It is that more bloated conception of equality-neutrality that leads to the conundrums considered in this essay.
Two Roads Diverged: Relinquishment or Recovery?
In sum, in a religiously pluralistic society, governmental neutrality toward religion (in the ambitious contemporary sense of that commitment) appears to be both imperative and impossible. What to do?
Simply as a predictive matter, probably the most likely scenario is that we– or at least our courts– will persist in a sort of aggressively innocent complacency. The courts and their courtiers will continue to profess a commitment to religious neutrality, and when dissenting citizens protest that some governmental decision or policy contradicts and subverts their religious belief, these worthies will try not to notice, or else will piously insist that these dissenters are mistaken– that they do not understand their own faiths as well as the judges and the professoriat do.
But if candor seems called for, then the major alternatives seem to boil down to two. We can call these the “relinquishment” strategy and the “recovery” strategy.
The first strategy, while accepting that religious freedom entails religious neutrality, would also admit that religious neutrality is impossible. What would logically follow is, as a recent book title has it, “the impossibility of religious freedom.” Warming to this conclusion, relinquishers might explain that a special commitment to religious freedom developed in a particular historical context– basically, in the period between the early modern “wars of religion” and the emergence of pluralistic societies committed to liberal and secular governance. In that context, the commitment may have made sense. Under modern conditions, though, religious freedom as a special concern is neither justifiable nor fully coherent.
But not to worry. As it turns out, relinquishers can argue, religious freedom is no longer needed; that is because other more currently resonant rights such as freedom of speech, freedom of association, and equal protection are adequate to protect our liberties. We do not need a freedom of religion per se, perhaps, any more than we need a freedom to fish or a freedom to drive.
Some scholars have recently moved to something like this position. And the Administration’s position in the recent Hosanna-Tabor case resonated with this relinquishment strategy. Religious institutions do not need or deserve any special free exercise immunity for their selection of clergy, the Administration contended. Instead, they should be treated under the same “freedom of association” that non-religious associations like the Jaycees can invoke (albeit in vain, as the Administration seemed to forget).
Even scholars (and Justices) who are not ready explicitly to relinquish freedom of religion sometimes do so tacitly by interpreting that right in terms that make it pretty much coextensive with other constitutional rights such as freedom of speech or equal protection. Such reductionism is familiar, including in the Supreme Court’s neutrality-oriented jurisprudence, and it amounts to a disguised or inadvertent form of relinquishment.
The other major alternative would decline to acquiesce in the tacit or explicit abandonment of religious freedom as a special constitutional commitment. Instead, what we can call the “recovery” strategy would attempt to clarify and reinforce that commitment. The Supreme Court’s sharp and unanimous rejection in Hosanna-Tabor of the Administration’s position (a position the Court described as “untenable” and “remarkable”) was a vivid instance of recovery over relinquishment.
There is no assurance, of course, that the Court will make the same choice in other contexts. And, indeed, any thorough-going effort at recovery would have to deal with a daunting obstacle– namely, the entrenched and almost sacrosanct assumption that government is required to be “neutral” in matters of religion.
The nature of this obstacle should by now be apparent. In the first place, the recovery and reenforcement of a special commitment to religious freedom would likely involve the rehabilitation of the classic rationales, especially the “voluntary faith” rationale. As discussed above, though, this and other classic rationales trade on premises that are not religiously neutral. In addition, any particular version of religious freedom will inevitably mean that religion is treated differently than non-religious interests and institutions– sometimes better, perhaps, as in “free exercise exemptions,” and sometimes worse, as in prohibitions on aid or funding. This different treatment will be in tension with the proposition that government is supposed to be blithely neutral in matters of religion.
And so it seems we may have to choose. Which do we want? Religious neutrality? Or religious freedom?
 Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, 94 Minn. L. Rev. 972, 973 (2010).
 For more detailed treatments, as well as consideration of some standard responses, see Steven D. Smith, “Religious Neutrality: Imperative and Impossible,” forthcoming in Religious Diversity, Politics, and Law (Kevin Schilbrack ed.); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 77-98 (1995).
 See, e.g., Roberts v. United States Jaycees, 468 U.S. 325 (1984) (rejecting Jaycees’ freedom of association claim and applying antidiscrimination law).