an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a good thing. It insists, however, that its goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute. American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state cannot even affirm the existence of God. This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America. It is faithful to the framers’ belief that religion can be degraded and corrupted by state support.
The Supreme Court has interpreted the establishment clause to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” Accommodation of religion as such, beginning with the exemption of Quakers and Mennonites from the military draft, is unquestionably permissible.
It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as at war with itself, and propose to cast aside large bodies of settled establishment clause law.
The critics are right that neutrality is incoherent when it is understood at the highest possible level of abstraction. Yet almost no one regrets the state’s refusal to take a position on the metaphysical status of the Eucharist. Neutrality’s continuing appeal demands explanation.
The answer, which I will elaborate in my forthcoming book, Religious Neutrality in American Law: An Analysis and Defense (Harvard 2012), is that neutrality is available in many forms. One of the many ways that government can go wrong is to take a position on some question that, all things considered, it ought to abstain from deciding. The American law of disestablishment has from the beginning sought, for excellent reasons, to keep the state from adjudicating religious questions that are the objects of controversy in American society. That aspiration is both coherent and valuable.
Understanding the specific level of religious neutrality presupposed in American law dispels many apparent anomalies. For example, because religion is understood as a good at a high level of abstraction, it makes sense for the Court to continue to deploy one of the classic justifications for the religion clauses: the idea (which presupposes the value of religion) that religion can be corrupted by state involvement with it. I explain and defend the idea that a law must have a secular legislative purpose. I show why it makes sense to permit old, but not new, ceremonial acknowledgements of religion. I also explain why it is not unfair to give religion the special treatment that it now receives. Posted
by Andrew Koppelman [link]