Posted on by Mark Movsesian

Chicago-Kent Law Review to Publish Symposium on Neutrality

The Chicago-Kent Law Review will publish a symposium, “The Future of the Establishment Clause: Neutrality, Religion, or Avoidance?”, next month. Edited by Bruce Ledewitz (Duquesne), the symposium will discuss

the future of the Establishment Clause, confronting three interrelated questions: 1) If the Court is to reaffirm government neutrality toward religion, can such neutrality coexist with resurgent popular religious belief at the same time that it serves the needs of a growing national secularism?; 2) Conversely, if the Court is to permit government embrace of religion, can it do so without alienating the large numbers of  nontheistic believers and nonbelievers?; and 3) How far can the Court take the turn to standing before it undermines noneconomic approaches to injury-in-fact in all of constitutional law and before it renders even classic violations of the Establishment Clause essentially unchallengeable?

Contributors include Richard Albert (Boston College), Christopher Lund (Wayne State), Samuel Levine (Touro), Zachary Calo (Valparaiso), and Mark Rahdert (Temple). For more information, please contact Editor in Chief Maggie Master at the Chicago-Kent Law Review.

Posted on by Marc O. DeGirolami

Bronx Household of Faith Obtains TRO on Free Exercise Grounds

CLR Forum’s educated readership knows that the Free Exercise Clause was interpreted in Employment Division v. Smith to mean that neutral laws of general application which do not specifically target religion for discriminatory treatment are constitutional.  Of course, the majority of the Court in Smith, unlike some of Smith’s most ardent academic supporters, was quite friendly to legislative accommodations for religion.  Smith was about what the Constitution mandated, not what it permitted.

Yet in the fabric of Smith was an important exception — or, perhaps it’s not even right to call it an exception, as it seems to follow from the very rule that Smith announced.  Where a law is not neutral, or not of general application, it warrants the strict scrutiny that applied in the Court’s pre-Smith free exercise jurisprudence. 

And that seems to be the reason for Judge Loretta Preska’s decision to issue a temporary restraining order enjoining New York City’s Board of Education from barring Bronx Household of Faith and all other religious organizations from using public school buildings for religious worship services.  Readers will remember that the Second Circuit, in an opinion by Judge Pierre Leval, held that the municipality could exclude “worship” even though (under Good News Club v. Milford Central School), it could not exclude “religious expression.”  And the Supreme Court, regrettably, denied cert.  But the Second Circuit’s decision did not involve a free exercise claim, and Bronx Household of Faith had preserved that claim. 

If one looks at the memorandum in support of Bronx Household’s motion for the TRO, the free exercise claims involve allegations of non-neutrality (the policy of exclusion specifically targets religious worship, and even more specifically targets Judeo-Christian religions which engage in organized worship) and the lack of general application: the policy is “substantially underinclusive” — it allows “prayer, singing hymns, and religious teaching,” while at the same time excluding worship.  The district court also agreed with the plaintiff’s Establishment Clause claim as a reason to grant the order.

Posted on by Marc O. DeGirolami

Haupt, “Religion-State Relations in the United States and Germany”

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 conceptions in this country, there is now emerging very interesting scholarship on the comparative study of neutrality.  My colleague, Mark, is doing some excellent work in this regard.  And I just was made aware of this very interesting comparative study by Claudia E. Haupt (George Washington), Religion-State Relations in the United States and Germany: The Quest for Neutrality (Cambridge UP 2012).  The publisher’s description follows.

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.

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Lobeira on Neutrality in European Public Schools.

Pablo Cristóbal Jiménez Lobeira (Centre for European Studies (ANU); Centre for Applied Philosophy & Public Ethics (CSU)) has posted Public Schools and Crucifixes: What Kind of Neutrality? – Reflexions on the Principle of Secularism in a Plural Europe. The abstract follows.

Lautsi v Italy attracted widespread attention in Europe and beyond. At stake were different conceptions of neutrality of the modern secular state. Though the contention was about a Christian symbol, the European Court’s ruling has consequences for other religions and worldviews present in Europe today. This paper will review different ways in which neutrality can be understood according to the “immanent frame” (Taylor). It will analyze secularism as statecraft and as worldview (Casanova). It will explore the role of religion in the European public sphere in a “post-secular age” (Habermas). Furthermore, it will study the concept of tolerance as inclusion of plurality in the context of Europe’s constitutional traditions than as indifference about, or even hostility towards religion (Weiler). Finally, I will propose an understanding of neutrality in the public sphere that enables interculturalism among the European citizens, and arguably the success of the European Union as an analogical polity.

Posted on by Marc O. DeGirolami · 3 Comments

Christmas Wars Kicked Off… and a Thought About “Neutrality”

The embattled governor of Wisconsin, Scott Walker, has announced that the tree decorated with baubles of various sorts for the upcoming winter season and located on capitol grounds is, in fact, a Christmas tree and not a holiday tree.  Naturally, the move has elicited consternation from some persons (the Freedom From Religion Foundation spokeswoman, for example), who are reported to have complained that the governor’s declaration amounts to a “discourtesy” and a “snub to non-Christians.  Otherwise he wouldn’t do it.”

Apart from the notion that there may well be other reasons to call a pipe a pipe than to injure the feelings of others, this exchange got me thinking about the arguments from religious “neutrality” that are sometimes made to justify the endorsement test in establishment disputes.  The FFRF spokeswoman says that the reason the name of the tree was changed from “Christmas” to “holiday” is “to avoid this connotation that the governor chooses one religion over another.”  That is a standard move in neutrality argumentation: we change the name to avoid even the hint of the suggestion that government is non-neutral when it comes to religion.

Obviously we are not talking about neutrality from the God’s-eye point of view, however.  We can only judge whether a practice is neutral by reference to some base line of social behavior.  Frank Ravitch and Andrew Koppelman (in a forthcoming book), among others, make and turn over these sorts of questions, but consider the following example.  In times of peace, the United States provides non-military aid to the small (and imaginary) country of Blorb.  Blorb now enters into a war with the country of Snorp, and it is very important to the US government that it remain “neutral” between the sides.  What does neutrality demand?  Presumably it would require the US not to begin granting military as well as non-military aid to Blorb (this is part of the reason that I believe neutrality is not an empty concept).  But does it also demand withdrawing non-military aid from Blorb?  Does it require keeping things the same as they were before the conflict?  Does it demand beginning to supply Snorp with non-military aid as well?  Or perhaps with non-military as well as military aid, in order to balance the former aid given to Blorb and withheld from Snorp?

Any one of these answers can be characterized as both neutral and non-neutral — or, as the FFRF rep. put it, as a “discourtesy” or as the public perception of “choosing” this over that.  Calling, as well as not calling, the Christmas tree a Christmas tree is a snub and a discourtesy.  The reason is that the historical base line from which judgments of neutrality operate admit of multiple reasonable interpretations of government action.  Does this mean that neutrality is empty?  I do not think so, as I said above.  If Governor Walker had announced that in addition to the Christmas tree, he was erecting a gigantic golden statue of Jesus right on top of the capitol building, one can quite sensibly speak of that decision as non-neutral.  But though neutrality can do a little bit of work along these lines, its conceptual resources rapidly run out in more difficult cases.  — MOD

Posted on by Mark Movsesian

Pierik and Van der Burg on Neutrality

Roland Pierik (Amsterdam) and Wibren Van der Burg (Erasmus University Rotterdam) have posted a new piece, What Is Neutrality?, on SSRN.  The abstract follows. — MLM

One of the central axioms of liberalism is that government should treat its citizens with equal respect and concern. One way to achieve that goal is that government should be neutral with respect to the variety of ideas of the good life its citizens endorse. The classic liberal interpretation of neutrality is that government should not embrace or penalize particular conceptions of the good life, but should provide a neutral framework within which the various and potentially conflicting conceptions of the good life can be pursued. Important ways of providing such a neutral framework are the employment of general laws that affect all citizens equally – or so it is assumed – and the exclusion of religious arguments and symbols from political debates and the public sphere in general.

In this paper we want to reinvestigate the question of liberal neutrality. We contend that liberal discussions have been dominated – if not hijacked – by one particular interpretation of what neutrality could imply, namely, exclusive neutrality, that aims to exclude religious and cultural expressions from the public sphere. Although we acknowledge the importance of this exclusive interpretation of neutrality in specific contexts, we will argue that that it is only one of several relevant interpretations. To substantiate our claim, we will firstly elaborate upon inclusive neutrality. To do so, we will formulate two supplementary interpretations of neutrality: proportional neutrality and compensatory neutrality. Secondly, we will argue that in most contexts inclusive proportional neutrality is more appropriate than exclusive neutrality.

Our elaboration of these different interpretations of the neutrality ideal can help to acknowledge that some political disputes should not be seen in terms of the antithesis between liberal neutrality and illiberal multiculturalism but of a clash between various valid but incompatible interpretations of what liberal neutrality can imply. In these cases there is no simple or straightforward answer to the question which interpretation of neutrality should prevail. Moreover, since neutrality is not an end in itself, it must be balanced against other liberal values, mentioned above. Philosophical analysis can only show which values are at stake in this balancing act; actual choices can only be made in specific contexts.

Posted on by Mark Movsesian · 1 Comment

Conference: The Future of the Establishment Clause in Context

As my colleague Marc notes, the proper definition of neutrality is very much an issue in Establishment Clause jurisprudence today, particularly with regard to state-sponsored religious symbols and expressions.   Neutrality will be one of the topics addressed at an interesting conference organized by Bruce Ledewitz (Duquesne), scheduled for November 3.  Participants include Christopher Lund, Zachary Calo, Samuel Levine, Richard Albert, and Mark Rahdert.  The conference announcement follows.  — MLM

The Future of the Establishment Clause in Context: Neutrality, Religion, or Avoidance?

The Establishment Clause of the Constitution prohibits Congress from making any law “respecting an establishment of religion”.  There is no agreement today on the Supreme Court, or in American law generally, as to what that command means.  This disarray has led to intractable controversies over such issues as “one Nation under God” and “In God We Trust”.  Government neutrality toward religion is now challenged by some members of a newly assertive, national religious majority.  Conversely, a growing number of nonbelievers, especially among the young, reject even generic references to God.  Disappointingly, the Supreme Court has responded to these developments by limiting standing to bring Establishment Clause challenges, rather than by a coherent reinterpretation of the text.

In conjunction with a symposium issue of The Chicago-Kent Law Review, six scholars will explore the future of the Establishment Clause in terms of this contested context at Duquesne University School of Law on November 3, 2011.  They will inquire into the possibilities set forth by the three paths open to us into the future of religion in the public square: a new government neutrality, a new relationship of government and religion and a new understanding of how the Establishment Clause is to be enforced.