1

The Religious Neutrality Principle

in the Governance of

an Open Society

Philip Benesch

Lebanon Valley College

benesch@lvc.edu

International Conference of the Political Studies Association, Cardiff, Wales,

Panel on Religion and Politics

Tuesday, March 26, 2013

Abstract: The rule of law in an open society must embody three principles. First, law must

treat each individual on his or her own merits and not as a mere member of a larger group or

class. Second, law must assign equal burdens and benefits to persons subject to its jurisdiction,

qualified only by the humane duty to protect those who are weaker and more vulnerable than

others. Third, law must enable the citizenry to have adequate opportunity to deliberate, to

engage in mutually-uncoerced persuasion, and to hold government unjustified by criteria other

than competence, efficiency, and transparency. I argue that these principles of the rule of law in

an open society require, in their turn, the principle of constitutional and governmental neutrality

in questions of religion.

When fully developed, the paper will comprise three main elements. In the first sections I

examine a Popperian approach from which the principle of religious neutrality might be derived.

In the middle three sections I review recent American political and legal analyses concerning

church-state separation in an Open Society. In the final sections, I shall briefly consider recent

European and British argument concerning religious neutrality. Only the first two elements will

be presented at this conference.

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The Religious Neutrality Principle in the Governance of an Open Society

If we aspire to an open society—by which I mean a society governed by a democracy that is

1) sufficiently self-limited to preserve individual and decentralized associative freedoms, and 2)

sufficiently empowered to protect against violence and to reduce poverty and oppression—then

we must critically-review our systems of governance and law so that they better approximate our

currently-clarified paradigm of justice and liberty. Every written law is compromised by human

fallibility. Our laws, therefore, are but iterative approximations, by fallible legislators and

fallible courts, in the quest for a less imperfect formulation of legal principle.

The rule of law in an open society must embody three principles. First, law must treat each

individual on his or her own merits and not as a mere member of a larger group or class. Second,

law must assign equal burdens and benefits to persons subject to its jurisdiction, qualified only

by the humane duty to protect those who are weaker and more vulnerable than others. Third, law

must enable the citizenry to have adequate opportunity to deliberate, to engage in mutually-

uncoerced persuasion, and to hold government unjustified by criteria other than competence,

efficiency, and transparency.

I argue that these principles of the rule of law in an open society require, in their turn, the

principle of constitutional and governmental neutrality in questions of religion. First, a

government that employs a religious test for office-holders, or a religious oath or justification for

any official activity, is a government that treats more favorably those who conform to such

religious requirements than it treats those who do not. Second, a system of law that privileges

one religious organization or faith over other faiths, or that privileges religion over non-

religion—or, for that matter, non-religion over religion1—is a system of law that fails to assign

1 It is important that we clearly distinguish the principle of religious neutrality from atheism. An

official atheism is no more compatible with an open society than an official religion or official

support for religion in general. A system of law that discriminates against religion or the

religious would be a system violative of the central legal principles of an open society. While

over the millennia oppressively-closed societies have been founded on religion, one must never

forget that some of the most monstrous tyrannies in very recent history have been regimes

officially self-described as atheistic. The neutrality principle neither requires nor is compatible

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benefits and burdens evenly, and that will be susceptible to disempathetic discrimination in the

application of its humane protective duty. Third, a constitution that justifies governance

according to religious criteria, that shields certain religious values from criticism, or that

tolerates the prohibition of religious or irreligious views disfavored by the government, is a

constitution that permits government to avoid strict accountability to the citizenry. Thus, the

principle of religious neutrality is a corequisite of the rule of law in an open society.

The paper will comprise three main elements. In the first two sections I examine a Popperian

approach from which the principle of religious neutrality might be derived. In the middle three

sections I review recent American political and legal analyses concerning church-state separation

in an Open Society. In the final section, which is currently under development and will not be

presented at this conference, I shall briefly examine European and British argument concerning

religious neutrality.

The Promise and the Insufficiency of Popperism

Popper considered the sphere of acceptable democratic political action to be quite different

from the sphere of acceptable interaction among friends. Utopian and utilitarian paternalism

posed dangers to liberty: we cannot use government to force others to be happy; we may not

presume to know what is in their greatest good.2 To legislate our standards of happiness and

fulfillment would require gross intrusions on the privacy of others, impositions that may be

tolerable among friends but not among the involuntary associates, who must make up the bulk of

the citizenry of a democracy.

The remediation of suffering and injustice belonged on the public policy agenda. However,

the actualization of “‘higher’ values…should be left to the realm of laissez-faire.” Declaring that

“no generation must be sacrificed for the sake of future generations, for the sake of an ideal of

happiness that may never be realized,” Popper urged those who were politically-active to try

patiently to convince others that it is possible to eliminate “concrete evils.” Instead of seeking the

summum bonum in the public sphere, politically-active progressives should “fight for the

with a government policy of atheism. Yet a government that is intolerant of atheism is no more

consistent with the principles of an open society than a government intolerant of any religious

faith or practice. 2 K. Popper, The Open Society and Its Enemies, v.1, pp.158 and 284, n.2.

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elimination of poverty by direct means—for example, by making sure that everybody has a

minimum income…”3

Nonetheless, Popper took a neutral position neither regarding the type of regime that might

be expected to advance the elimination of misery nor the values that should facilitate that effort.

He quite clearly believed that a tyranny would be indifferent to suffering where a democracy

might be sensitive to the plight of the most oppressed. In Popper’s preferred regime progress

toward the minimization of misery would be closely associated with the operation of a

democracy balanced by strong constitutional safeguards of civil liberty.

Popper expected each individual to make his or her ethical decisions in communication with

friends, and other associates. He concluded “help your enemies; assist those in distress, even if

they hate you; but love only your friends.”4 The moral reformation of one’s companions

presuppose an uncoerced conversation that might be freely terminated by either party. The

mutual fostering of happiness is a privilege of friendship, a privilege that ceases when friendship

ceases.5 Among friends there was a duty to stimulate in each other—but never a right to

impose—an interest in specific higher values and perhaps even the right to demand of each other

the adoption or close coordination of such values and ends.6 One may suppose that such

networks of friendships and voluntary association would provide the most fruitful context for

individual moral decision in an open society, and would assume the role that had been filled by

the small society of the city in the classical world. Intersubjective monitoring and refinement of

moral conduct and moral opinion was characteristic of relationships based upon affection or

voluntary association.

Popper believed that his ‘minimize misery’ demand would make a simple, immediate, and

irresistible appeal to the conscience of each citizen. It was possible to achieve a consensus on

whom in society had been least advantaged, on which burdens were most oppressive, and “on

what are the most urgent social reforms.” We might find it difficult to agree on social ideals; by

3 K. Popper, Conjectures and Refutations, p.361.

4 Ibid., v.2, p.237.

5 K. Popper, The Open Society and Its Enemies, v.1, p.237; Popper admired Socrates precisely as

“an ethical reformer, a moralist who pestered all kinds of people, forcing them to think, to explain, and to account for the principles of their actions” (Ibid.,p.29.). 6 Ibid., v.2, p.276.

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contrast, misery and suffering could be directly communicated and readily recognized.7

However, the communication and recognition of “concrete evils” became more difficult in an

‘abstract society.’8

In the age of globalization and dislocation, the political systems most closely resembling

open societies—the United States of America and Western Europe—have come to resemble ever

more the abstract societies into which Popper feared open societies might evolve: societies that

have lost “the character of a concrete or real group of men, or of a system of such real groups.”9

In such a society, individuals have relatively few intimate and enduring social contacts. Popper

witnessed the emergent dangers of alienation in open societies: he imagined a society in which

individuals lived lonely and anonymous (in the internet age, perhaps pseudonymous) lives; “in

which men practically never meet face to face—in which all business is conducted by individuals

in isolation who communicate” remotely and travel by enclosed private transport. Such a society

would produce widespread unhappiness, for biologically humans “have social needs which they

cannot satisfy in an abstract society.”10

The ‘abstract society’ surely presented a problem for Popper’s ethical philosophy: the

members of such a society may have very limited compassion for their fellows. While Popper

believed that children were not naturally cruel but were perhaps inclined to be compassionate, he

also recognized how easily the modern entertainment industry, with its steady stream of violent

imagery, could corrupt the young.11

Popper never squarely faced the difficulty that the abstract

society and its consumerist and spectator-entertainment culture posed for his belief that the

urgent appeal of apparent misery would irresistibly arouse immediate reform action. Short of the

7 Many persons had direct and frequent experience of the distress resulting from poverty,

unemployment, national oppression, war and disease. “Those of us who do not suffer from these miseries meet every day others who can describe them to us…”K. Popper, Conjectures and Refutations, p.361. 8 Popper resided in Vienna from 1902 to 1935; it was a city in which near-universal apartment

living and excellent public transportation constrained middle-class suburbanization and resort to the isolating privacy of automobility. Between 1937 and 1945, Popper dwelt in Christchurch, New Zealand, and wrote The Open Society and Its Enemies while there. The cities of Vienna and Christchurch perhaps provided models for the inter-class urban community Popper envisaged for the open society. 9 K. Popper, The Open Society and Its Enemies, v.1, p.174.

10 Ibid., p. 175

11 K. Popper, Unended Quest, p.8. For Popper’s criticism of violence on television and in the

movies, cf. K. Popper, The Myth of the Framework, p.125, and his 1993 interview with Giancarlo Bosetti, in K. Popper, Lesson of This Century, pp.56-61; several points arising from this interview will be considered in the discussion of protectionism and paternalism in this chapter.

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appeal to our compassion made by his ‘minimize misery’ demand, Popper’s philosophy offered

no clear-cut method by which we might reach the ethical decisions he desired.12

His approach

depended on empathy with suffering humans, combined with a rational-critical rejection of

ethical systems that yielded undesirable consequences. Popper’s approach also required an

affirmative embrace of humanitarian values that might regulate and coordinate the otherwise

untranscended and alienated activity of individuals in an ‘abstract society’. (Discuss Popper on

flux, uncertainty, the ‘stress of civilization’.)

The Allure of Religion in an Open Society

The human production of religion, of the idea of god, the concomitant duties and the ethical

and epistemological claims it entails, has occupied a place at the core of human discourse for

millennia, and religion (or quasi-religion) continues to exert significant plastic control—not

infrequently fortified by severe social sanctions—over the adherents of various faiths. Popper

offered only slender consideration of how his sociological and epistemological theories might

apply to religion. He described his own rationalist commitment as founded on no more than a

faith in reason. He praised Socrates for seeking in each human the divine spark of reason and

regarded Marx as a dualist who had great respect for the autonomy of a mental-spiritual realm

from the material realm.13

Popper’s was indebted to historical materialism—to the practical-

critical activism that initially characterized Marx’s approach, before his doctrine congealed

beneath the positivistic and deterministic superstructure of scientific socialism; from Marx

Popper derived much of his own ‘antipsychologism’ and remained committed to a post-historical

materialist “situational logic’ in which the realm of ideas was recognized as a material force. In

the work of the last third of his life, Popper’s earlier mind-body dualism was elaborated into a

12

While he considered John Rawls’ A Theory of Justice as “in many ways [a] very important book,” Popper did not endorse Rawls’ method of ethical decision-making: the famous “original position” thought-experiment (A Theory of Justice, chapters 1-3) which utilized a blindfolded and disinterested jury of our virtual peers as an Archemedian point from which to identify and elaborate principles of justice (cf. K. Popper and J. Eccles, The Self and Its Brain: An Argument for Interactionism, p.145). 13 While Engels, (in his critique of Duhring / Socialism: Utopian & Scientific) had labeled deists

and agnostics “shame-faced materialists” [in some translations “shame-faced atheists”], Marx

had noticed the almost Cartesian ambivalence of early modern materialists (see for example, the

first four of his Theses on Feuerbach) a position that one might characterize as unadmitted

dualism; however, despite Marx’s best efforts, historical materialism did not resolve a theory-

practice duality. Though largely unacknowledged by either his critics or his champions, much of

Popper’s work is a working-through of the dualist problem left by historical materialism.

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materialist trilateralism: exosomatic ideas existed objectively only when they had been

materially- embedded (in books, computers, art, architecture, etc.); the subjective contents of

thought achieved a measure of autonomy (or non-reducibility) to physical processes largely

because the subjective realm mediated between the world of objective ideas and that of

unarticulated matter.

Popper viewed mid-twentieth century European Marxism as a great religious movement, in

which new adherents experienced the equivalent of an intellectual conversion or revelation. Yet

Popper’s position (preserved through the fifth revised edition of The Open Society in 1965) was

not internally consistent: while stressing the unscientific nature of the prophetic religion known

as Marxism—and identifying historical prophecy as subversive of the openness (and open-

endedness) of society—Popper nonetheless maintained that had Marx eschewed historicism, and

instead pursued ‘social technology’ (i.e., applied social science), a Marxian prophetic religion

may have inspired a humanitarian movement capable of harnessing progressive optimism in the

cause of non-collectivist reform, a political faith consistent with the Open Society.14

One suspects Popper would have welcomed such a variant of Marxism, had it only appeared.

Popperian political theory, although motivated by the most noble of ambitions, lacked the

aesthetic grandeur of the religious and utopian prophecies. The recognition that every rationalist

or scientific claim was impure, insufficient, and susceptible to criticism, led the Popperian to

ground his or her rationalism in faith. Popperian negativism—in epistemology (error-

elimination), ethics (misery-minimization) or politics (negative liberties [emphasizing freedom

from restraint] and negative democracy [the power of the governed to remove government])—

while intellectually rigorous, offered little emotional appeal. A non-historicist prophetic religion

may have supplied a missing element in the drive for an open society—an energetic mass

movement possessed of enthusiasm for the realization of a grand vision.

Religious movements—whether of the modern historicist variant represented by Marxism, or

the more traditional supernaturalist type—may integrate otherwise disconnected individuals into

self-reinforcing ethical networks; they may ennoble their adherents, elevating their routine and

arduous lives by endowing their activities with a transcendent, world-historical significance.

Above all, faith may inspire a dynamic mass movement to translate otherwise wooden and

14

K. Popper, The Open Society and Its Enemies, v.2, p.198.

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overly-rationalized proposals for compassionate social reform into a broadly actualized, living

human practice.

However, Enlightenment limits our acceptance of uncritical faith: when the idea of god is

taken as the measure of truth and goodness, ordinary mortal men have proven more susceptible

to misleadership and exploitation by those priests or preachers or potentates who claim to

possess the authentic message of the divine. All too often, the alleged revelation of absolute truth

yields to a relativist and positivist dependency on the instructions of some ordained human

authority, self-appointed vanguard, or Elect. The alienation of critical capacities infantilizes the

ordinary believer, atrophying his or her autonomous moral sense, resulting in a permissive

indulgence in harmful behaviors when authorized by church leaders, and an excused disempathy

for those forms of human suffering neglected or despised by the clerical hierarchy. The relativist

consequence of religious moral absolutism may be placed alongside the stunting of inquiry and

the propagation of noble lies that not infrequently accompany the infallibilist authoritative

declaration of truth. Religions are therefore never an unmixed blessing: for reasons noted,

religion may prove dangerous to the open society project and hence critical rationalists must

never permit themselves to be seduced by religious movements that appear to supply a mass

basis for desirable social and political ends.

Three Popperian Principles in the Governance of an Open Society (a restatement)

1. law must treat each individual on his or her own merits and not as a mere member of a

larger group or class.

2. law must assign equal burdens and benefits to persons subject to its jurisdiction, qualified

only by the humane duty to protect those who are weaker and more vulnerable than

others.

3. law must enable the citizenry to have adequate opportunity to deliberate, to engage in

mutually-uncoerced persuasion, and to hold government unjustified by criteria other than

competence, efficiency, and transparency.

• I argue that these three principles necessitate a fourth: that Government must act neutrally

in matters of religion. Popper does not spell this out, perhaps relying on the legacy of the

Enlightenment

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• In the next section I tentatively explore the religious neutrality principle in recent debate

on U.S. politics and law

Church-State “Separation” during the Bush Presidency

The Presidency of George W. Bush provoked controversy on many fronts, notably including

that of church-state relations. During the 2000 election-campaign Bush’s commitment to

expanded faith-based initiatives in federal welfare and education policy was prominently and

widely reported. The foreign and military policies of the first term were sometimes

characterized by White House-connected commentators as components of a global religious

struggle.15

These observations – together with President Bush’s support for abstinence-only sex

education and his hostility to abortion and to embryonic stem cell research, his campaign’s

successful marshaling of anti-gay-marriage forces in the 2004 general election, and the public

image of the Bush White House as a venue for regular bible-study and prayer meetings – all

cemented popular perceptions of the strong connections between the 43rd

Presidency and faith-

based, essentially Christian-evangelical, constituencies. Yet despite the public image and the

inexpensive rhetoric, relatively little political capital was expended by the Bush Presidency to

secure legislative, let alone constitutional, transformation of church-state relations. Such

changes as occurred were limited largely to the level of personnel and have been barely noticed

at the institutional level.

Little was achieved regarding faith-based initiatives during the first two years of the Bush

Presidency. Such initiatives had been prominently mentioned by Bush in the 2000 election

campaign, and formed a major component of his compassionate conservatism. Further, such

initiatives appeared to hold the promise of bipartisan support, with charitable-choice provisions

incorporated into four Clinton-era federal welfare laws, and with both the Democratic candidate,

Al Gore, and his running-mate, Joe Lieberman, proponents of greater inclusion of faith-based

providers in federally-financed welfare operations. Of broad appeal was the prospect that the

resources of religious armies of compassion could be utilized to help poor families, assist

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Perhaps the most noted example is the June 2003 speech by the Deputy Undersecretary of

Defense, Lt. General William Boykin, in which he suggested that Islamic extremists hate the

United States “because we’re a Christian nation, because our foundation and our roots are Judeo-

Christians... And the enemy is a guy named Satan.” “Rumsfeld defends general who commented

on war and Satan,” CNN.com, Friday, October 17, 2003

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individuals to break the habits of recidivism and drug addiction, and overcome other social

problems that had long overwhelmed the welfare bureaucracies. Further, some potential

Establishment Clause hurdles had been cleared by the Supreme Court decision in Mitchell v.

Helms in 2000, and subsequently in Zelman v. Simmons-Harris in 2002.

Yet in the 107th

Congress, H.R. 7, though ably piloted by J.C. Watts, floundered in the

House, while similar measures in the Senate fared little better. In December 2002, in the dying

days of the 107th

Congress, a frustrated President Bush could do no more than supplement the

Executive Orders on Faith-Based and Community Initiatives that he had issued in January 2001.

Most controversially, Executive Order 13279, which was titled “Equal Protection of the Laws for

Faith-Based and Community Organizations,” declared that religious organizations which shared

in government contracts were freed from obligations of non-discrimination “with respect to the

employment of individuals of a particular religion.”16

Amy Black, Douglas Koopman, and David Ryden explain the paucity of legislative progress

in the Bush initiative by pointing to several factors.17

The 2000 election and its aftermath

deepened partisanship and left many African-American voters and black church leaders wary of

Bush’s embrace. In May 2001, the Democrats regained effective control of the Senate, with

several leading Democratic Senators determined to vigorously resist the Bush initiative. Those

who had been uncomfortable with the privatization and market-choice components of the Clinton

welfare reforms were not sympathetic to the expansion of these components under the Bush

initiatives. Organizations long opposed to government subsidy or endorsement of religious

proselytization mobilized against the measures.

Legislative progress was impeded also by division and distraction within the Bush political

coalition. A number of potential faith-based providers of welfare services sought reassurance

that acceptance of government money would require them neither to denude their facilities of

religious symbols and practices nor to employ those who disagreed with their faith. Tensions

arose between purist and pragmatist factions vying to influence this area of Bush White House

16

Executive Order 13279 appended to Amy Black, Douglas Koopman, and David Ryden, Of

Little Faith: the Politics of George W. Bush’s Faith-Based Initiatives, Georgetown University

Press, Washington, D.C., 2004, p.307 17

Amy Black, Douglas Koopman, and David Ryden, Of Little Faith: the Politics of George W.

Bush’s Faith-Based Initiatives, Georgetown University Press, Washington, D.C., 2004

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policy: the purists, who tended to be more conservative in their religious and political

commitments than the pragmatists, feared that the constitutionally-nuanced positions of

pragmatists – such as John DiIulio, the first Director of the White House Office of Faith-Based

and Community Initiatives – might be insufficiently favorable to overtly evangelical programs

while being excessively open to non-traditional or fringe religious groups. The purist-influenced

House leadership insisted on prioritizing charitable-choice over the pragmatists’ preferred

strategy of pursuing tax-breaks and compassion-capital funds first; the 2001 Senate measure

sponsored by Senators Lieberman and Santorum lacked charitable-choice provisions and more

closely corresponded to the pragmatist’s proposals. Finally, the events of 9/11 and the

subsequent preparations for war in Iraq dramatically changed the focus of the President’s

energies and substantially displaced other issues from congressional and media attention.

Congress has expanded tax-benefits to those giving to charity, a measure that has increased

the financial capabilities of faith-based welfare organizations while largely side-stepping the

thorny political and constitutional issues raised by the overt transfer of government monies to

such organizations. Congress has also appropriated resources for Compassion Capital Funds,

thereby facilitating the development of social-entrepreneurial expertise in a wide-range of

community groups, including many that are faith-based. In a speech on July 1, 2008, Senator

Barak Obama, the then presumptive Democratic Presidential candidate, stirred controversy

among both secularists and religious conservatives by proposing a partnership with

neighborhood and faith-based groups, and a policy that would offer federal grants to such groups

with the proviso that recipient organizations must neither practice religiously-based employment

discrimination nor use government money to proselytize.18

Since the election of President Obama there has been very little further erosion of church-

state separation, although there are continuing foci of controversy concerning gay rights (equal

eligibility for government conferred privileges and immunities), abortion (state efforts to further

restrict access to abortion services following the U.S. Supreme Court’s 2007 ruling upholding of

the federal Partial Birth Abortion Act of 2003), and contraception services (using powers granted

under the Patient Protection and Affordable Care Act, the federal government may mandate

18

Peter Steinfels, “Obama Sets Off a Debate on Ties Between Religion and Government,” New

York Times Online, July 5, 2008; cf. John M. Broder and Jeff Zeleny , “Obama Plan Would

Expand Faith-Based Program,” New York Times Online, July 2, 2008.

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certain employer insurance-coverage for personnel other than those who are ordained or

performing ministerial functions). The selection of Mitt Romney, a Mormon, as the Republican

Presidential candidate in 2012 may also signal a diminution of Republican identification with

Protestant evangelism; given shifts in political demography, and the prominence of the Catholic

Church in articulating opposition to marriage equality, abortion, and contraception, Republican

strategists have sought to broaden their party’s appeal beyond the evangelicals. Catholicism has

long been regarded as the most reliable indicator of judicial conservatism: all five of the more

conservative Justices of the current U.S. Supreme Court are Catholics.19

Analysis of Recent (post 2000) Major U.S. Supreme Court Rulings relevant to the Religious

Neutrality Principle (to be developed)

Santa Fe Independent School District v. Doe (2000) [Court (6:3) reaffirmed the essence of Lee v.

Wiseman (1992) that state-schools could not sponsor prayer at official events (in this case,

prayers prior to high school football games); in 2009 the Court declined to revisit the issue when

petitioned to review a recent 3rd

Circuit Court of Appeals ruling in Borden v. Township of East

Brunswick School District].

Zelman v. Simmons-Harris (2002) [In a landmark but narrowly decided (5:4) ruling the Court

upheld a voucher scheme in Cleveland Ohio that permitted parents to use taxpayer funds to pay

for private parochial education].

[Lawrence v. Texas (2003) – not strictly a first amendment religious liberty case but ultimately

extending privacy rights and equal protection to homosexuals in a manner opposed by religious

conservatives. Scalia, dissenting, restated the position he had articulated in his dissent to the

Romer v. Evans ruling (1996) and predicted that the Equal Protection grounds favored by

O’Connor would open the floodgates to same-sex marriage. The Court’s Lawrence ruling

preceded by 8 months the Massachusetts Supreme Judicial Court finding that the Massachusetts

state constitution required marriage equality.]

19

Chief Justice Roberts, Justices Alito, Kennedy, Scalia, and Thomas are Catholics. Justice

Sotomayor is the sole Catholic member of the Court’s liberal wing. Since the retirement of

Justices Souter and Stevens, the Court, for the first time in its history, contains not a single

Protestant.

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Locke v. Davey (2004)[The Court rejected an attempt to extend the earlier ruling in Zelman;

Davey had, in effect, asked the Court to set aside Washington state’s Blaine era constitutional

prohibition of the use of state money to fund professional preparation for a religious ministry.

While Zelman had found no Establishment Clause barriers to Cleveland’s plan to use of tax

funds for parochial education, Davey had argued, on Free Exercise Clause and Equal Protection

Clause grounds, that a government ought to be required to provide such funding].

Elk Grove School District v. Newdow (2004) [Court side-stepped the merits of Newdow’s

objection to the inclusion of the phrase “under God” in the Pledge of Allegiance; instead holding

that Newdow, a non-custodial parent, lacked standing to sue his daughter’s school district].

Van Orden v. Perry (2005) and McCreary County v ACLU (2005) [In this pair of cases the Court

reached decisions that are apparently in tension with each other. In Van Orden v. Perry the

Court held that a Texas display of the Ten Commandments on the public grounds of the State

Capitol was constitutional because 1) it was part of broader display of sources of U.S. law 2) it

had been in position without prior challenge for four decades and 3) it had initially been privately

funded. In his Opinion for the Court, Chief Justice Rehnquist noted that the Court’s

jurisprudence concerning the Establishment Clause had not been consistent; he placed no special

reliance on the Lemon test (Lemon v. Kurtzman, 1971). Over Scalia’s strong dissent, in

McCreary County v ACLU the Court ruled that a recent Kentucky county courthouse display of

the Ten Commandments was unconstitutional; firmly applying the Lemon test Justice Souter

reasoned that even though the display had been subsequently revised to include other ‘source of

law’ items, it had from the first been intended to establish a dependency of U.S. law on biblical

sources.]

[Gonzales v. Oregon (2006). Not strictly a religious liberty case but one concerning state

regulation of physician-assisted suicide. Over the opposition of conservatives, the Court by 6:3

held that the Attorney General of the United States was not empowered to prevent the State of

Oregon from permitting doctors to prescribe controlled medications for use in patient suicides.]

[Gonzales v. Carhart (2007). The Court reasoned on grounds that avoided reference to religious

concerns: key test was whether the federal Partial Birth Abortion Act placed an undue burden on

women seeking late term abortions by a particular method. Even though the Court had rejected

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similar Nebraska state legislation in 2000 on grounds that it lacked a health exemption, the

majority upheld this federal statute (curiously, with the exception of Thomas, conservatives who

had worked so hard to limit the scope of Congressional Commerce Clause did not bat an eyelid

at Congress’ claim of commercial authority to enact this morality-driven legislation). The

difference between the 2000 and 2007 decisions may simply be the replacement of Justice

O’Connor by Justice Alito; note that Justice Scalia has stated in public that his own handling of

this case—and the earlier handling of the case by a Catholic federal judge in New York—

demonstrate a proper abstention of a judge’s personal religious values in the process of

adjudication].

Hein v. Freedom from Religious Foundation, Inc (2007) [Court rejected challenge to

Constitutionality of the Executive Order establishing the White House Office of Faith-Based and

Community Initiatives; held that the barrier to taxpayer suits, lowered in Flast v. Cohen, did not

provide standing to sue where the challenge was to Executive rather than Legislative actions].

Recent Debate Regarding U.S. Constitutional Neutrality in Religion

In a recent discussion of the church-state problem in American law and politics, Noah

Feldman proposed a solution he believes comports with American tradition and will prove

acceptable both to proponents of “legal secularism” and of “values-evangelicalism”.20

Rejecting

Justice Sandra Day O’Connor’s endorsement test as leading to inconsistent and unsatisfactory

outcomes – sharp limits on religious symbolism in the public arena, yet “neutral” public

resourcing of religious educational and charitable activities – Feldman suggests a simple “No

Coercion, No Money” standard to guide the interpretation of the Constitution’s Establishment

Clause. “Put simply it is this: offer greater latitude for public religious discourse and religious

symbolism, and at the same time insist on a stricter ban on state funding of religious institutions

and activities.”21

So long as no coercion is entailed, public religious symbolism, such as crèches

in courthouses, and legislation that is sponsored by religious leaders or contains preambles with

religious language, should be permitted. But public money, whether distributed as direct grants

20

Noah Feldman, Divided by God: America’s Church-State Problem—and What We Should Do

About It, Farrar, Straus and Giroux, New York, N.Y., 2006 21

Ibid. p.237.

15

or through the private-choice of individuals – as with school vouchers or TANF vouchers –

should not reach religious organizations.

Feldman therefore takes a position opposed to the expansion of charitable choice schemes

that were initially at the core of the Bush faith-based initiative. However, his survey of the

history of church-state relations notes the frequent occasions, in the nineteenth and twentieth

centuries, when public welfare agencies were beneficially supplemented by religious charitable

efforts – such as church-affiliated orphanages and hospitals – and that government grants and tax

breaks for religious charities recognized that such organizations often met public policy goals

more cost-efficiently than official agencies. The curtailment of such funding resulted both from

anti-Catholic bias (e.g., the Blaine Amendments to constitutions in many states) and the

progressive development of public services that reduced the apparent need for publicly facilitated

charitable providers. Feldman is repelled by the Nativist bigotry that contributed to the creation

of the “traditional” exclusion of religious charities from public funding, yet he would appear to

insist on the maintenance of the “traditional” no money rule even where public services and

secular charitable supplements have proven insufficient in meeting the goals of welfare policy.

Feldman’s observations regarding the increased scope for religious symbolism in the public

arena and for religiously-motivated contributions to that arena respond to concerns long-

expressed by commentators such as Richard Neuhaus and Steven Carter.22

Given America’s

increasing religious multi-culturalism, Feldman foresees little danger that expanded symbolic

scope would lead to a restoration of a “nonsectarian” Protestantism as the country’s semi-official

religion. But his position reaches much further than recognizing the legality of sectarian

symbolic displays in public spaces and the expansion of acceptance (not mere occasional

tolerance) of religious modes of expression in formally secular public politics. Feldman’s aim is

to abandon “the Lemon requirement that state action must have a secular purpose, as well as

Justice O’Connor’s idea that the state must not “endorse” religion.”23

This is quite far-reaching

as it is sufficient to re-enfranchise religiously-described motives for social policy and legislation

provided that such motives can be translated into equally compelling universally-recognizable

22

Richard Neuhaus, The Naked Public Square: Religion and Democracy in America, W.B.

Eerdmans, Grand Rapids, MI, 1984; Steven Carter, The Culture of Disbelief: How American

Law and Politics Trivialize Religious Devotion, Anchor, New York, N.Y., 1993. 23

Feldman, op. cit., p.237.

16

terms (or be accompanied by an equally compelling secular rationale) and that the aim of the

policy or legislation is to solve a social problem rather than alter the balance of religious views

or practices within the population served by the policy or law. Hence, a revised endorsement

standard for legislation and policy seems preferable to the stance offered by either Lemon’s

preclusion of religious motives or Feldman’s alternative.

Feldman invites further reflection with his statement that “religious speech and symbols need

not exclude…cold cash, by contrast, is concrete and finite, and thus subject to divisive

competition of a different order.”24

It may be noted that government symbolic endorsements of

one religious viewpoint can have the perceived effect of diminishing or marginalizing the

standing in the political community of citizens who do not hold that point of view. In a free

society, cash, like conduct, may be regulated more tightly than speech or symbols. It is that very

capacity to tightly regulate and set conditions for the use of government cash in a constitutional

democracy that may ensure its availability in a manner that does not exclude or diminish some,

nor endorse or privilege selected others. A private-choice social-service scheme that distributes

public funds in ways that empower welfare clients may meet this goal if the scheme enshrines

heightened equal protection standards, including measures to safeguard clients, service provider

organizations, and their employees from religious discrimination. Such a scheme would be less

paternalistic than either bureaucratically-delivered services or services offered by government-

selected grantees, less inequitable than tax exemptions that disproportionately favor the

charitable choices of the wealthy over those of the poor, and would better comport with

American traditions of privacy and personal autonomy.

By contrast with Feldman’s position, Martha Nussbaum robustly defends the Establishment

Clause reasoning of Justice Sandra Day O’Connor, while resoundingly rejecting the reasoning of

Justice Thomas that the Establishment Clause solely prohibits federal interference with state

establishments.25

In brisk, decisive strokes, the third chapter of Nussbaum’s book cuts the logical

24

Ibid pp.238-239. 25

Martha Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious

Equality, Basic Books, New York, NY, 2008. Nussbaum recognizes the Establishment Clause

and the Free Exercise Clause as distinct but mutually reinforcing guarantees of religious or

conscientious liberty. At the time of the Founding, twelve state constitutions contained

provisions to protect the expression of diverse religious commitments, ranging from protections

afforded solely to Protestants, through to Rhode Island’s broad protection of the liberty of

17

and historical ground from under Rehnquist’s argument for nonpreferentialism, the claim that the

Establishment Clause does not prevent government endorsement of religion in general, but

merely prohibits the privileging of a particular faith or church. Nussbaum also rejects the view,

favored by Justices Scalia and Kennedy, that state coercion must be found to be present if an

Establishment Clause violation is to be sustained. She observes that while coercion must always

be present in a Free Exercise Clause violation, the non-coercive privileging of a religious

viewpoint by government, and the consequent disfavoring of the views regarding religion of

other citizens, is sufficient for a claim that the Establishment Clause has been breached.

Nussbaum perceptively notes that while Justice Black rhetorically insisted on a “high and

impregnable” wall between church and state, the core of his 1947 opinion in Everson v. Board of

Education of Ewing Township relied not on the principle of separation but on one of neutrality in

the provision of publicly-funded school transportation. In Black’s ruling, Nussbaum glimpses

“two subsidiary principles that will later prove very valuable in applying the neutrality/equality

framework to concrete cases: the principle of indirect aid (the money goes to individuals not to

the school), and the related principle of choice (the parents choose, as they are always entitled to

do, where their children may go to school, and the money simply enables that free choice).”26

Nussbaum sees this analytical framework further refined in the judicial reasoning of Justice

O’Connor, notably in her concurrence in Rosenburger v. The Rector and Visitors of the

University of Virginia (1995), her opinion for the Court in Agostini v. Felton (1997), and special

concurrence (controlling, because narrower than the plurality opinion authored by Justice

Thomas) in Mitchell v. Helms (2000).

Nussbaum celebrates the progress represented by the Agostini ruling, observing that while

“Analytical conflicts have not been utterly removed… the Court is closer to analytical consensus

than it has been at any recent time, and perhaps not since Everson, when the split between

neutrality and separation was already marked.”27

Yet she appears to hesitate at the Rubicon.

While noting that “the idea of the public schools as linchpins of a common culture has already

conscience of Christians and non-Christians alike. Some states originally did not perceive the

contradiction between state protection of religious free exercise and a state established church;

yet full disestablishment, achieved in half of the states at the Founding, was embraced by every

state by the 1830s. 26

Nussbaum, Liberty of Conscience, p.284. 27

Ibid, p.298.

18

been very much undermined,”28

she does not wholeheartedly embrace the position adopted by

the Court in Zelman v. Simmons-Harris in 2002 regarding the Cleveland school voucher scheme.

In contrast to her enthusiasm for the Agostini opinion, Nussbaum paraphrases O’Connor’s

important concurrence in Zelman to a spare “If the program used genuinely neutral criteria and

provided genuine choice, then it should not be judged unconstitutional on account of its

effects.”29

Nussbaum feared that the tradition of equal liberty of conscience, came under renewed threat

during the presidency of George W. Bush. She was particularly perturbed by his support for the

teaching of “Intelligent Design” as part of the public school science curriculum, and by his

permission for religious discrimination in the use of federal funds by faith-based social service

organizations.30

Her hope is that a broad political consensus will support the analytical

framework refined by Justices Black and O’Connor. Liberty of Conscience was published as the

2008 Democratic and Republican presidential campaigns refreshed their understanding of faith

issues. It offered a timely contribution to the political debate, stressing the limited yet important

role of the legal tradition, of fallible courts and legislatures, slowly and unevenly, recognizing

the principles necessary for the equal liberty of conscience.

Tentative Conclusions Regarding the Recent Application of the Religious Neutrality

Principle in the United States

The 2002 Zelman and 2007 Carhart decisions in the United States offer a potential way

forward: upholding legislation favored by religiously-motivated political conservatives when that

legislation can be justified in secular rational terms and subject to continuing strict scrutiny for

potential violation of equal protection standards. I disagree with Nussbaum’s hesitancy in

embracing O’Connor’s Zelman concurrence; the 2002 Zelman decision correctly placed

emphasis on neutral funding of private choice, allowing the replacement of bureaucratic

allocation with individual citizen decision in matters that, while not bereft of proper public

concern (the fight against illiteracy and intellectual disenfranchisement) nonetheless intrude

significantly into the sphere of private moral determination. The 2007 Carhart decision points to

the proper ruling that ought to have been reached in the earlier equivalent state law case

28

Ibid. 29

Ibid, p.301. 30

Ibid, pp.5-6.

19

(Stenberg v. Carhart, 2000); neither the Nebraska nor the federal legislation prohibited late term

(post-point-of-fetal-viability) abortion but restricted the use of one particularly gruesome

procedure for all but maternal-life-saving abortions; where the 2007 decision erred was in

sustaining federal regulation of a matter properly regulated by the states, but this aspect was left

unaddressed by the Court’s liberals and the Court’s conservatives (other than a brief aside by

Thomas). I reject Feldman’s accommodation of religious symbolism on government buildings

or state-maintained public spaces but consider the Van Orden accommodation of a four-decade

old contextually neutral display to be appropriate, at least pragmatic; I argue that the 2005 Van

Orden & McCreary decisions, despite their apparent inconsistency, struck the right balance

regarding officially-sponsored religious displays. Finally, I argue that the U.S. Supreme Court

majority mishandled the Newdow and Hein cases, misconstruing the Flast standard; the claims

advanced in those cases, respectively by Mr. Newdow and by the Freedom from Religion

Foundation, were deserving of standing under the Court’s ruling in Flast v. Cohen.

(A final grouping of sections, examining European navigation of the religious neutrality

principle, has yet to be developed)