The Troublesome Religious Roots of Religious Neutrality

The Supreme Court has repeatedly said that neither it nor any other branch of the state can decide matters that relate to the interpretation of religious practice or belief. The state may not attempt to determine the "truth or falsity" of religious claims, (1) courts may not try to resolve "controversies over religious doctrine and practice," (2) may not undertake "interpretation of particular church doctrines and the importance of those doctrines to the religion," (3) may make "'no inquiry into religious doctrine,'" (4) and may give "no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." (5) This has meant most concretely that, for cases involving disputes within religious organizations, the Court has had to craft special rules, distinct from those governing other controversies. At English common law, if issues of religious doctrine arose in disputes over contract obligations, tort claims, criminal fraud charges, or the administration of a trust, the courts would resolve those issues. (6) Most notably, property contributed to a religious body by a member would bear an implied trust in favor of the fundamental doctrines of that religious body, and in a dispute would be awarded to the group most faithful to those doctrines. (7) The Supreme Court has repudiated that approach. So the Court gives more deference to the decisions of church tribunals than it would give to similarly situated secular bodies. (8) This doctrine has elicited objections: (1) The rule is incoherent as applied to actual practice, since government in fact constantly makes religious judgments, notably when deciding who is entitled to a religious accommodation, or who the relevant religious tribunal is. (9) The rule is even self-contradictory, because it requires courts to decide which controversies are religious and thus beyond the state's cognizance. Because the rule can't be applied consistently, it in fact is applied inconsistently and arbitrarily. (10) (2) "In reality, virtually every action taken by government at least tacitly teaches, if not the truth, then the falsity of some religious beliefs." (11) Thus, for example, teaching Darwin in the public schools implicitly contradicts the views of biblical literalists and creationists. Even the laws against murder contradict the religious beliefs of Aztecs. (12) (3) Sometimes the state has a legitimate need to explicitly contradict, and attempt to change, the religious beliefs of some people. (13) Thus, for example, many American political leaders have noted the importance of encouraging the "ascendancy of a ... version of Islam that is ... friendly to pluralism, [free] markets, and secularism." (14) To evaluate these claims, we must consider why the challenged rule exists--why it is regarded as appropriate for government to keep its hands off religious doctrine. The government should be neutral with respect to religious doctrine just insofar as neutrality is entailed by these reasons. Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous, irrational dogmatism into politics and make democratic compromise more difficult. (15) Here I want to emphasize one consideration that is often overlooked: the idea that religion can be damaged and degraded by state involvement with it. The neglect is apparent, for example, in Frederick Gedicks' (in many ways excellent and insightful) analysis of the Supreme Court's treatment of religion. Gedicks thinks that the Court is nominally committed to principles of secular individualism, which are suspicious of and hostile toward religion, (16) while much of the country is devoted to a very different ethic, "religious communitarianism," which permits the community to define itself and its goals in expressly religious terms, and which exerts a gravitational pressure of its own on constitutional interpretation. …