Defending American Religious Neutrality
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Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality―more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate.
The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity.
Understanding American religious neutrality, Koppelman shows, can explain some familiar puzzles. How can Bible reading in public schools be impermissible while legislative sessions begin with prayers, Christmas is an official holiday, and the words “under God” appear in the Pledge of Allegiance? Are faith-based social services, public financing of religious schools, or the teaching of intelligent design constitutional? Combining legal, historical, and philosophical analysis, Koppelman shows how law coherently navigates these conundrums. He explains why laws must have a secular legislative purpose, why old, but not new, ceremonial acknowledgments of religion are permitted, and why it is fair to give religion special treatment.
such as a college education or ordination, hindered God’s work.56 Christian establishment did not lead to pure religion. Rather, “tyranny, simony, and robbery came to be introduced and to be practiced so long, under the Christian name.”57 Ministers who sought state support were unchristian. Religious duties could not be delegated. The state was also an unreliable source of religious guidance. “[T]he same sword that Constantine drew against heretics, Julian turned against the orthodox.”58 Backus
the state can abstain from endorsing any speciﬁcation of the best or truest religion while treating religion as such, understood very abstractly, as valuable. That is what the state in fact does. That is how it can accommodate religion as such while remaining religiously neutral. The key to understanding the coherence of First Amendment religion doctrine is to grasp the speciﬁc, vaguely delimited level of abstraction at which “religion” is understood. What in fact unites such disparate worldviews
opponents, whom we can roughly denominate the “religious right” and the “militant atheists,” have a common set of anxieties. Each group feels, for diﬀerent reasons, that the regime excludes and stigmatizes them. Each feels threatened by the other. Each tends to view the other as intolerant and selﬁsh.2 I will conclude by arguing that the regime I have described here has at least the potential to win the endorsement even of these bitterest of 166 A Secular State? 167 critics. This is so, in
Pages 37–40 91. Schultz, Tri-Faith America, at 179–197. 92. Torcaso v. Watkins, 367 U.S. 488, 495 (1961). 93. William K. Muir Jr., Prayer in the Public Schools: Law and Attitude Change 13 (1967). 94. Abington School Dist. v. Schempp, 374 U.S. 203 (1963). 95. Engel v. Vitale, 370 U.S. 421 (1962). 96. Jeﬀ ries and Ryan at 313. A resurgence of distrust of Catholicism certainly played a role in the persistence of the “no-aid” view of the Establishment Clause, and as that distrust dissipated, the
sometimes been eﬃcacious in promoting conceptions of the good. The Argument from Incompetence Another argument for neutrality is that, while there may be a fact of the matter about what way of life is best, the state is not competent to determine what it is. “The one only narrow way which leads to Heaven is not better known to the Magistrate than to private Persons,” Locke wrote, “and therefore I cannot safely take him for my Guide, who may probably be as ignorant of the way as my self, and who