Conceptions of neutrality in church-state relations are increasingly important these days. But a very interesting feature of the neutrality debates has been the plural and oftentimes incompatible conceptions of neutrality that have emerged. Formal neutrality, for example, is quite different from (and sometimes hostile to) what preeminent church-state scholar Douglas Laycock has called “substantive neutrality.”
Alongside the splintering of the concept of neutrality into plural
This comparative analysis of the constitutional law of religion-state relations in the United States and Germany focuses on the principle of state neutrality. A strong emphasis on state neutrality, a notoriously ambiguous concept, is a shared feature in the constitutional jurisprudence of the US Supreme Court and the German Federal Constitutional Court, but neutrality does not have the same meaning in both systems. In Germany neutrality tends to indicate more distance between church and state, whereas the opposite is the case in the United States. Neutrality also has other meanings in both systems, making straightforward comparison more difficult than it might seem. Although the underlying trajectory of neutrality is different in both countries, the discussion of neutrality breaks down into largely parallel themes. By examining those themes in a comparative perspective, the meaning of state neutrality in religion-state relations can be delineated.