The Dis-integration of Neutrality

Neutrality has been the central theme in the modern jurisprudence and literature of religious freedom.  Government is supposed to be religiously neutral, neither favoring nor opposing (coercively, materially, or expressively) any particular religion or religion in general.

The ideal has also been subjected to severe criticism.  One criticism asserts that neutrality is impossible: governments will inevitably adopt some religious (or anti-religious) positions and reject others.  Indeed, since religious views differ as to the acceptability of governmental neutrality, the very endorsement of neutrality is already a departure from neutrality.

One response to this sort of criticism is to “spread out”– or to multiply versions of neutrality.  Like the sorcerer’s hapless apprentice, the critic applies the hatchet to what he takes to be the mischievous broom of neutrality only to find that, far from having dispatched the mischief, he is now faced with two– or several, or many– more vigorous instantiations.

Thus, in a recent illuminating article called “Crosses and Culture” (I would provide a link if I knew how), Mark Movsesian discerns in American jurisprudence three versions of neutrality, which he calls “neutrality as non-proselytism,” “neutrality as non-sectarianism,” and “absolutist” neutrality.  These are not just different dimensions or complementary implications of a unitary constraint, it seems: what is impermissible under one version may be authorized by another.  And all of these versions are sometimes used by the courts.  In European jurisprudence, Mark perceives still a different version– he calls it “neutrality as non-indoctrination”– which permits things that the American versions would not.

In a similar vein, Andy Koppelman has written about “the fluidity of neutrality”– the ideal can mean lots of different things, he thinks, depending on context– and Andy develops this theme in an important book, forthcoming from Harvard University Press.  Still other theorists distinguish between “neutrality of effect,” “neutrality of aim,” and “neutrality of justification.”

In one sense there is nothing surprising about this proliferation of neutralities.  We all understand the difference between “concepts” and “conceptions,” don’t we?  (Actually, I don’t, but let that pass: everyone else seems to.)  Why would anyone expect an ideal as important and pervasive as neutrality to come in only one shape and size, or only one “conception”?

In other ways, though, the disintegration of neutrality is unfortunate, and frustrating.  The conceptual sprawl can make things difficult for litigants, or potential litigants, or litigant don’t-wannabes– actors who would like to avoid trouble by knowing what the law is and conforming to it.  Public entities are supposed to be religiously neutral.  But who can tell what sort of neutrality a court may choose to apply?  The multiplication of neutralities also conduces to confusion, and equivocation.  People may think they are talking about a common subject and in fact be talking past each other.

Which prompts a pretty obvious question: why do judges and theorists insist on dragging a host of different notions or principles into the contorted tent of “neutrality”?  The confusion generated by neutrality-talk begins to seem gratuitous, because the “neutrality” term seems superfluous.  If we think the real constitutional principle is one forbidding indoctrination, for example, or sectarian expression, or whatever, why not just say that?  Why not talk about “non-sectarianism,” if that’s what we want, rather than “neutrality” (leaving scholars like Mark to figure out that in this context what we actually mean is “neutrality as non-sectarianism”)?

But I suspect I know at least part of the answer to these questions.  What I’ve been treating as a shortcoming– namely, a tendency to promote confusion– is in fact an attraction.  If we were forced to be more precise, the verdict would probably go like this: Most of so-called neutralities (non-sectarianism, for example) are upon examination not really versions of neutrality: at least they do not fit the official specifications or deliver what “neutrality” was supposed to deliver.  And, alas, the only version of neutrality that seems on its face truly neutral– what Mark calls “absolutist” neutrality– is impossible and self-negating, as critics argue.  It is only through obfuscation and equivocation that we manage to avoid this distressing verdict, and to persist in professing an ideal that we are not prepared to relinquish.  So if multiplying versions of neutrality conduces to obfuscation, so much the better.

But why does “neutrality” have such a powerful spell over us?  A principal reason, I suspect, is because to admit that neutrality is impossible and that governments are not, never have been, and never could be religiously neutral might imply that we ought candidly to explain why our governments in fact favor some religious (or anti-religious) positions and reject others.  And as things stand, “we” as a society are constitutionally unprepared to do that.  So although we cannot have the reality of neutrality, we also cannot do without the rhetoric.  The upshot is that neutrality will likely continue to dis-integrate: for every version that is cogently criticized, another one (or more) will spring up to take its place.

– Steve Smith

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