The Menace of Neutrality in Religion

I. INTRODUCTION Those who are even remotely interested in spiritual matters know that organized religions in the United States (and indeed throughout the Western world) are in turmoil and that church attendance is declining rapidly.1 The turmoil is a consequence, at least in part, of the seeming inability (or unwillingness) of the leaders of organized religions to support the moral foundations and tenets of their own faiths when these come into conflict with the demands and expectations of an increasingly secular world. Additionally, some religious leaders have largely lost their ability to act as role models because their personal moral standards sometimes deviate from those religions. The avalanche of child sex abuse scandals that now engulfs some religions illustrates this particularly poignantly.2 There is, however, another factor that contributes to the societal decline with respect to religion. This factor, a legal one, relates to the interpretation of the First Amendment to the U.S. Constitution, which states in relevant part, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ."3 The Establishment Clause and the Free Exercise Clause are, at least potentially, in conflict with each other.4 This conflict arises from the possibility that a person's constitutional right to the free exercise of religion may be impeded by a governmental desire to adhere to the Establishment Clause. The Supreme Court has struggled to strike the right balance between these two clauses. This continuing struggle, which has spawned the Court's development of the "neutrality principle," is vital to an understanding of First Amendment jurisprudence.5 The Supreme Court has interpreted the Establishment Clause as requiring or involving the application of the neutrality principle.6 This principle imposes an obligation on federal and state governments to refrain from favoring or disfavoring either sectarianism or secularism.7 Accordingly, governmental hostility towards religion violates the neutrality principle because it elevates secularism and demeans religion.8 The converse also applies because governmental preference for religion adversely affects secularism. This Article argues that the neutrality principle ineffectively addresses the conflicts between the Establishment Clause and the Free Exercise Clause and has largely removed religion from American public life by trivializing its existence. In particular, I will argue that the application of the neutrality principle trivializes religion because it reduces the significance of religion in the United States by largely removing it from the public arena. In addition, and more importantly, when the neutrality principle is used to protect religion, this protection is only achieved by deconstructing the concepts of religion and by removing the religious nature, characteristics, or significance of a relevant act or symbol. Thus, I will argue that rather than protecting religion, the neutrality principle often serves to demean it in American society. As such, the neutrality principle is a convenient but ultimately specious principle-one that is inherently incapable of facilitating the free exercise of religion as constitutionally protected by the First Amendment. I suggest that a return to the original meaning of the Establishment Clause would help prevent this negative treatment of religion in the United States. The Supreme Court developed the neutrality principle primarily during the last few decades.9 However, earlier tests used by the Court to determine the constitutionality of relevant laws and practices may be interpreted as variants of this principle.10 In Part II of this Article, I recount briefly the separation of church and state doctrine, followed in Part III by a description of the development of the neutrality principle and its manifestations or variants in the relevant jurisprudence. Part IV follows with an assessment of the impact of the application of the neutrality principle on religion in American society. …