As Square a Circle as PossibleSteven D. Smith July/August 1998 This is an appealing, and at first glance a plausible, suggestion. If the analysis of this and the preceding chapter is correct, however, then the proposal to treat neutrality as a matter of degree is seriously misleading. Much of the foregoing discussion has tried to show, in essence, that the ideal of religious neutrality is simply not coherent. And if the ideal of neutrality is not coherent, then it makes no sense to urge government to be "as neutral as possible." As an illustration, suppose that a teacher tells a student to draw a straight line, and the student says, "I can't seem to do it." The teacher might sensibly respond, "I know you can't draw a perfectly straight line, but draw as straight a line as possible." But if the teacher says to draw a square circle and the student says, "It can't be done," it would be quite senseless for the teacher to answer, "I know you can't do it perfectly, but draw as square a circle as possible."
In a similar way, the foregoing analysis suggests that at bottom religious neutrality is not a coherent ideal. The notion of neutrality holds that government should be impartial toward, and should treat equally, all religious beliefs, neither privileging nor disfavoring any set of beliefs. Consequently, the demand for neutrality calls for the relationship between government and religion to be determined without privileging or adopting any of the competing religious and secular positions within the culture. But this aspiration is not merely unrealistic or difficult to attain in practice; upon reflection, the aspiration is scarcely intelligible. How could a regime or theory regulating the relations between government and religion be elaborated on and defended except on the basis of the beliefs and values of one or more of the competing religious and secular positions within the culture?
Still, it at least seems plausible to say that some positions are "more neutral" than others. This appearance, however, may be deceitful; it may reflect, implicitly but inevitably, a tacit assumption that some persons, groups, or belief systems "count," or are entitled to full consideration and equal treatment by the state, and that other persons, groups, or belief systems do not "count" in this sense.
As an illustration, imagine a society (much like Colonial America) in which nearly everyone is a Protestant of one denomination or another, while Catholics, Jews, Muslims, and other kinds of believers are few and, as far as the mainstream society is concerned, almost invisible. In this kind of society no one would think to describe a proposal favoring one Protestant sect over the others as "neutral." But it might seem quite natural-for Protestants, at least-to describe as religiously "neutral" a proposal benefiting all Protestant denominations and founded in assumptions common to Protestantism generally. The proposal treats equally all the groups that figure in the prevalent understanding of groups that must be taken account of.
In this vein, proponents of a "no preference" version of religious freedom still sometimes characterize as nonpreferential or nondiscriminatory programs that benefited or subsidized Christianity generally but not other religions during the founding era. These characterizations benignly neglect to notice that there were also Jews living in the country at that time. The Jews, it seems, somehow disappear from view in such descriptions; they do not "count."
Suppose now that someone points out this omission. Someone points out, in other words, that although a particular measure is compatible with and beneficial to the various groups of Protestants, it implicitly rejects the beliefs and slights the interests of a perhaps inconspicuous but nonetheless real minority-Catholics, Jews, Muslims, and others. How could proponents of the measure respond? They might simply drop the rhetoric of "neutrality" and defend the measure on straightforward majoritarian grounds. But this defense would encounter the common objections that majority rule should not be unlimited and that religious freedom especially should not be limited even to satisfy the desires of a powerful majority.
Taken from Steven D. Smith, Foreordained Failure (New York: Oxford University Press, 1995), pp. 93-95.