In Pursuit of a PhantomSteven D. Smith July/August 1998 Since Everson 1many have asserted that the First Amendment's religion clauses require government to be neutral toward religion. This requirement is not merely peripheral; "neutrality" has been a dominant theme of religious freedom. Berkeley law professor Phillip Johnson exaggerates only slightly when he asserts: "That in some sense the federal government and the states ought to be 'neutral' in religious matters is undisputed."2
Of course, justices and commentators also recognize that maintaining neutrality is not easy, in part because neutrality means so many things to so many people, a "coat of many colors" 3 in the words of Justice John Marshall Harlan.
But Harlan's concession vastly understates the difficulty. The problem with neutrality is not just that people disagree about what kind or how much is needed, or that neutrality is a lofty aspiration--like complete saintliness, or full employment--that can never be fully achieved. Rather, the very idea of a government neutral toward religion is an incoherent and illusory notion.
"The word 'neutral' denotes a myth," stated an article in this publication. "What it wants to say doesn't exist; it's inherently self-contradictory and therefore can't mean what it purports to.... Something can no more be 'neutral' than a triangle can have four sides." 4
Consequently, the bulk of modern thinking about religious freedom has been devoted to the pursuit of a phantom.
The Impossibility of a Neutral Position
As an illustration of the futility of neutrality, consider a hypothetical community in which beliefs about religion fall into three categories. One group of citizens--the Baal worshipers--fervently believe that Baal is the only true god and that he demands public worship. They believe too that unless he is recognized and worshiped by the community, he will smite the earth with a curse. A second group believes that Athena is the true god, though, unlike Baal, Athena desires only private and fully voluntary adoration; open public worship resulting from social pressure or legal coercion would be offensive to her. Finally, some are atheists; they believe that no god exists, and that religion is a form of wish fulfillment for people too insecure to deal with reality.
Suppose now that a controversy arises over whether a prayer should be offered at the public high school's graduation ceremony. What would be the "neutral" course? A public prayer would obviously be offensive to both the Athena worshipers and the atheists. But a refusal to offer any public prayer would contradict the beliefs and commitments of the Baal worshipers, who would not only condemn such a refusal but would sincerely fear the wrath of Baal as a consequence. In short, whatever choice the community makes, some group's sincere beliefs will have been rejected.
Now, the community has to do something. Suppose it decides against a public graduation prayer, while emphasizing that any individual is free to offer a silent prayer to any deity he or she chooses. However prudent a course, is it "neutral"? It might seem so to the Athena worshipers and the agnostics. After all, they might say among themselves, some of us are religious and some of us aren't, but we can agree on the "voluntary private prayer" position. And if someone reminds these groups about the Baal faith, they might respond: "What's their problem? They're perfectly free to pray if they want to--in their hearts or in their homes, of course." But this response overlooks the fact that public prayer is a central tenet of the Baal faith, and that the "private prayer" position flatly contradicts this tenet.
Of course, the Athena worshipers and the atheists might think that the Baal faith, or at least this aspect of it, is "unreasonable," a slightly less direct way of saying it's wrong. But saying a religion's central tenets can be disregarded because they are "unreasonable" or wrong is not being neutral toward that religion. On the contrary, it is making a comparative judgment about the relative truth or value of competing religious faiths--just what a commitment to religious neutrality was supposed to avoid.
In short, the characterization of the "private prayer" position as "neutral" is possible only if one kind of faith is either ignored or misrepresented, and that's hardly a position of "neutrality."
Neutrality in the Real World
American political and religious culture is, of course, much more complex than this hypothetical example; nonetheless, any controversy about religious freedom presents this same basic problem. Consequently, claims about what "neutrality" requires will inevitably entail the same ignoring or misrepresenting of one or more religious faiths.
Consider Epperson v. Arkansas, 5 which involved a challenge to an old and practically defunct Arkansas statute prohibiting the promulgation of evolution in public schools. In a decision invalidating the statute, the Supreme Court majority repeatedly emphasized the requirement of neutrality, and asserted that "the State may not adopt programs or practices in its public schools or colleges which 'aid or oppose' any religion. This prohibition is absolute." 6 Because the majority was also convinced that the statute had been enacted to insulate fundamentalist religious convictions from evolution, the Court declared the law invalid.
Viewed one way, the Court's argument had the compelling quality of a syllogism:
1. The requirement of religious neutrality means that the state can neither aid nor oppose religion in the public schools.
2. The antievolution statute aids (fundamentalist) religion.
3. Therefore, the antievolution statute violates the requirement of religious neutrality.
The problem, as Justice Hugo Black suggested in a separate opinion, was that the Court's own assertions equally supported a syllogism favoring the opposite conclusion:
1. The requirement of religious neutrality means that the state can neither aid nor oppose religion in the public schools.
2. Teaching evolution in the public schools contradicts and thus opposes (fundamentalist) religion.
3. Therefore, teaching evolution in the public schools violates the requirement of religious neutrality.
These contrary syllogisms create a conundrum much like that of the Baal-Athena-atheist example. On the Court's statement of the facts and ruling principle, Arkansas would deviate from neutrality either by teaching evolution or by prohibiting the teaching of it. The Epperson Court presented its position as "neutral," but it did so by focusing only on the "aiding religion" part of the neutrality principle while ignoring the "opposing religion" part.
Secularism as "Neutrality"?
If a host of conflicting religious beliefs and commitments makes the impossibility of devising a neutral position obvious, why have so many judges and scholars convinced themselves that neu-trality is a viable and even mandatory ideal? However complex, the answer, in part, is the supposition that the state can be neutral toward religion by remaining resolutely "secular" in its purposes and programs.
Consequently, a secularism requirement has been the core of the Supreme Court's establishment clause doctrine for decades. 7
But because many religious groups and believers regard "secularism," or "secular humanism," as the antithesis of everything religious, how can a scrupulously "secular" government be "neutral" toward this sort of religious faith? Viewed from a perspective that sees "religious" and "secular" as hostile categories, the claim that a secular government is neutral toward religion looks like something from Lewis Carroll. It is as if the president of a corporation announced: "This company is going to be strictly nonpartisan, and therefore from now on we will hire only Republicans."
Proponents of secular government see beliefs and values as falling into three categories: (1) religious, (2) antireligious, and (3) merely nonreligious--that is, neither religious nor antireligious. The third category, which they typically label "secular," seems comfortably "neutral" toward religion.
This three-category view was clearly expressed by federal appellate Judge William Canby in Grove v. Mead School District, 8 in which plaintiffs argued that a particular book, The Learning Tree, was hostile to religion and hence should be excluded from the public school curriculum. Judge Canby acknowledged the "sincerity of the plaintiff's religious objections" and conceded that the book was "antithetical to the particular Christian beliefs espoused by plaintiffs." But the plaintiffs' perspective was flawed, Canby argued, because it "tends to divide the universe of value-laden thought into only two categories--the religious and the antireligious." Canby then proceeded to reject this dichotomy, insisting that "distinctions must be drawn to recognize not simply 'religious' and 'antireligious,' but 'nonreligious' governmental activity as well." The Learning Tree, he argued, fell into this nonreligious category because its themes and questions were "not incompatible with Christian theism." Canby cited several Christian theologians, including Paul Tillich, Hans Kung, Karl Barth, and Harvey Cox, to buttress his position.
Judge Canby was no doubt correct: the contents of The Learning Tree are not inconsistent with the beliefs of many Christians, perhaps including the particular theologians he invoked. But that observation does nothing to negate the incompatibility between the book and the particular kind of Christian faith held by the plaintiffs. Consequently, Canby's argument seems simply beside the point.
Suppose, for example, a Quaker or a Jehovah's Witness raises a religious objection to a military conscription law or a flag salute policy. Should a judge cite a Catholic theologian to show that these objections are not compelled by "Christian theism"? Or if an Orthodox Jew objects to a dietary or dress requirement, would a judge invoke a Reformed Jewish thinker to show that the requirement is not at odds with "Judaism"?
Clearly, theologians such as Tillich do not speak for fundamentalist Christians. On the contrary, Tillich was contemptuous of Christian Fundamentalism,9 while Fundamentalists may regard Christians such as Tillich as apostates. Consequently, Canby's invocation of theologians such as Tillich did nothing to vindicate the "neutrality" of the school curriculum.
More generally, the three-category approach to values is in itself incompatible with some religious perspectives. For instance, Malcolm Muggeridge described "the human drama" as an "obvious dichotomy" shaped by two opposing forces: "One is the Devil and the other God." 10 Moreover, this either/or framework has a venerable pedigree; it was Jesus who repeatedly insisted: "He who is not with me is against me."11
It does not follow, of course, that this more binary religious perspective should determine the school curriculum or dictate public policy in general. The flaws in the three-category approach merely reinforce the point that government cannot be neutral in matters of religion. On the contrary, the very occurrence of religious conflict in the public domain strongly indicates that a "neutral" position does not exist. And the depiction of some position or solution as the "neutral" one will inevitably depend on tacitly pushing one or more faiths out of the picture.
Getting Over Neutrality
The urge to discover a position of governmental neutrality is understandable. It would be wonderful if government could somehow simply remain uninvolved, impartially detached, above the fray. Once it's realized, however, that neutrality is impossible--that government will constantly and necessarily be making decisions that coincide with and support some religious and secular positions but conflict with and reject competing religious and secular positions --then perhaps Americans will acknowledge the need to approach issues of religious conflict and religious freedom in some other, more honest and responsible way than in pursuit of this phantom dubbed "neutrality."
Stephen Smith is the Byron R. White Professor of Law at the University of Colorado.
Sidebar: "As Square a Circle as Possible"
1 330 U.S. 1 (1947).
2 Phillip E. Johnson, "Concepts and Compromise in First Amendment Doctrine," Cal. L. Rev. 72 (1984): 817, 818.
3 Board of Education v. Allen, 392 U.S. 236, 249 (1968) (J. Harlan concurring).
4 Clifford Goldstein, "Shipwrecked?" Liberty, September/October 1997, p. 11. The central contention in Goldstein's article is that any political community needs a moral base which, in the absence of social consensus, cannot be "neutral." By contrast, this essay focuses more on the question of "neutrality" in religion per se.
5 393 U.S. 97 (1968).
6 393 U.S. 97, 106 (1968). (Italics supplied; citation omitted.)
7 See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); Abington School District v. Schempp, 374 U.S. 203 (1963).
8 753 F.2d 1528, 1535 (9th Cir. 1985) (J. Canby concurring).
9 A Fundamentalist, according to Tillich, is someone who makes "a theological dogma out of his ignorance." Paul Tillich, A History of Christian Thought (1967), p. 310.
10 Malcolm Muggeridge, Jesus Rediscovered (1969), pp. 100-105.
11 See Matthew 12:30; Luke 11:23.