If It Looks Like A Duck…?

Thanks so much, Mark, for the warm welcome! I want to use my time here to write about some comparative issues in law & religion.

A growing body of literature in comparative constitutional law discusses themes of constitutional convergence. Do constitutional provisions converge across legal regimes? Do international human rights norms cause them to do so? These and related questions are enormously rich and thought-provoking, and the literature is expanding and getting increasingly sophisticated. But another question is perhaps as interesting as the question of textual convergence: interpretive convergence. Imagine two courts charged with interpreting a functionally similar, yet textually different constitutional provision using the same term as their analytical basis. Does that indicate convergence?

Here is the context in which I have addressed this question. The German Federal Constitutional Court and the U.S. Supreme Court both use the language of “neutrality” in their respective interpretations of constitutional provisions concerning religion-state relations. It’s interesting that we have two constitutional regimes, with constitutional provisions that say “Congress shall make no law respecting an establishment of religion” and “there shall be no state church” respectively—neither of which, incidentally, mentions the word “neutrality”—and two courts interpreting these provisions and finding an underlying requirement of state neutrality.

Two examples: the U.S. Supreme Court in McCreary County (quoting Epperson) has this to say about neutrality: “The touchstone of Establishment Clause jurisprudence is the requirement of governmental neutrality between religion and religion, and between religion and nonreligion.” In the Classroom Crucifix Case, the German Federal Constitutional Court found that “[t]he state, in which adherents of different or even opposing religious and ideological convictions live together, can guarantee peaceful coexistence only if it itself maintains neutrality in matters of faith.”

From a comparative perspective, it might be tempting to assume that the courts say the same thing about the relationship between church and state, because they are both using the term neutrality.  But we have to look beneath the surface. The meaning of neutrality evolved contextually, separately in each system. If we take the language of neutrality at face value, without regard to history and context, we fall into the convergence trap: we see one thing that looks just like the other thing, and we assume they’re substantively the same.

On a wide-angle view, starting from opposite sides of the religion-state relationship spectrum—a historically strong notion of separationism on the U.S. side and close cooperation on the German side—it seems that while the degree of separation may be declining in the United States, it is increasing in Germany. And the language of neutrality tracks those developments. But sufficient room for the individual interpretation of neutrality remains in both systems.

A more detailed view, however, might focus on the diverging meanings of the term. The substantive content of neutrality in both constitutional systems is characterized by significant underlying indeterminacy. Neutrality is notoriously ambiguous in both systems; it seems almost impossible to define an abstract, universally applicable, single meaning. This indeterminacy has led some scholars to argue that we should simply do away with the concept of neutrality in religion-state relations. But while I am not going that far, we should not expect too much from the neutrality principle in terms of resolving individual disputes.

To some extent, we are also dealing with a moving target. Take for example parity between the Catholic and Lutheran churches in Germany. Equal treatment of the two would have arguably satisfied the neutrality requirement in the past, but given the changing composition of the population that is likely not the case anymore. Similarly, the growing number of nonbelievers in the United States poses a challenge. So the doctrinal framework must be squared with changing societal realities.

Ultimately, the point is that what initially seems to be the same in fact is not. The underlying trajectory is different in that the starting points might be identified as polar opposites: a strong notion of separation in the United States, and an extensive system of cooperation in Germany. However, we can observe a narrowing gap between the two systems that is reflected in the use of the language of neutrality. In the United States, neutrality as it is used today means “less distance” between religion and state. In Germany, conversely, neutrality means “more distance” between religion and state.

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