THE PARTIALITY OF NEUTRALITY.

• Author: Curtis, Kelsey

The doctrines of neutrality in Establishment Clause and Free Exercise Clause jurisprudence are manipulable standards used more for rhetoric than rigorous legal analysis. The Supreme Court has interpreted the Establishment Clause to require government neutrality "between religion and religion, and between religion and nonreligion." (1) Yet the Court's rulings are not neutral towards religion. They instead embrace the secular. The Free Exercise Clause jurisprudence that has developed after Employment Division v. Smith (2) also eschews neutrality. Though the test in Smith purports to require courts to apply strict scrutiny to any law that is not neutral, courts often implicitly assume the neutrality of the challenged laws. In fact, those laws make inherent moral judgments, instantiate particular philosophies, and often verge on imposing secularism. The uncritical assumption of neutrality in Free Exercise Clause jurisprudence combined with the Court's embrace of secularism as neutral in Establishment Clause jurisprudence has created confusion in the approach to and definition of neutrality.

This Note will assess the concept of neutrality in contemporary Establishment Clause and Free Exercise Clause jurisprudence, argue that the supposed neutrality requirements (as applied) do not achieve neutrality, and then suggest drawing on other areas of law to form a more coherent doctrine of neutrality for the religion clauses. Part I will explain how contemporary Establishment Clause jurisprudence has led courts to embrace the secular in the name of neutrality, how that embrace is not neutral, and how some current applications of the neutrality analysis are at odds with other current Supreme Court precedent. Part II will begin by explaining the Smith standard, its effect on Free Exercise Clause jurisprudence, and the role of neutrality within that jurisprudence. Next, it will discuss the tension Smith created within Free Exercise Clause jurisprudence, (3) both generally and specifically in regards to the poorly defined neutrality analysis. Part II concludes by describing the two ways that contemporary courts fallaciously assume neutrality. Part III explores the ways that discrimination jurisprudence and Free Speech Clause jurisprudence assess neutrality and suggests that Free Exercise Clause jurisprudence incorporate some of those more developed tests into its neutrality analysis.

1. NEUTRALITY AND THE ESTABLISHMENT CLAUSE

   At the center of the Court's Establishment Clause jurisprudence is the call for government neutrality. Although "neutrality" in the Establishment Clause context is "not self-defining," (4) "recent cases have invested it with specific content: the State may not favor or endorse either religion generally over nonreligion or one religion over others." (5) The nominal basis of Establishment Clause jurisprudence emerged in Lemon v. Kurtzman. (6) That case announced a three-prong test for determining whether a statute lacked neutrality and thus violated the Establishment Clause: "First, the Statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion." (7)

   The Lemon test (8) is still held out as the primary Establishment Clause test that "embodies the supposed principle of neutrality between religion and irreligion," (9) yet it is "a boundless, and boundlessly manipulable, test." (10) Its application is neither consistent nor compulsory, (11) and by 1994 five justices had repudiated it. (12) Justice Scalia described the Lemon test as a "ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried." (13) He continued:

   Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman conspicuously avoided using the supposed "test" but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it, when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts." Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him. (14) Though the Lemon test is of dubious strength in the Court's contemporary jurisprudence, the "endorsement test" has emerged from it and "has become the foundation of Establishment Clause jurisprudence." (15)

   The Court officially adopted the endorsement test, which was first proposed by Justice O'Connor in her Lynch v. Donnelly (16) concurrence, in County of Allegheny v. ACLU. (17) Allegheny--an Establishment Clause challenge to a government-sponsored holiday display that included religious symbols--the Court extensively discussed Justice O'Connor's Lynch concurrence and adopted that reasoning. The Court explained that the four Lynch dissenters agreed with Justice O'Connor's analysis and only disagreed on how that endorsement test applied to the facts of the instant case. (18) The endorsement test draws on principles from both the first and second prongs of the Lemon test. Under Allegheny the question is no longer only whether the government's actual purpose is endorsement of religion, but also whether a reasonable observer could interpret it as an endorsement of religion. (19) Thus "for purposes of the Establishment Clause, the city's overall display must be understood as conveying the city's secular recognition of different traditions for celebrating the winter-holiday season." (20) Under the newly accepted endorsement test, the government must do more than just refrain from any actions that can be perceived as endorsing religion; it must also actively convey secular messages--all in the name of neutrality.

   Adhering to only the secular, however, does not equal neutrality. Secular and secularism have many different meanings, (21) none of which can be equated with neutrality. Professor Rex Ahdar (22) defines the terms by breaking the political philosophy of secularism into two distinct strains: benevolent secularism and hostile secularism. (23) Benevolent secularism is "a philosophy obliging the state to refrain from adopting and imposing any established beliefs," and it does not disparage religious beliefs or strive to keep them out of political discourse. (24) Benevolent secularism is also known as "negative" secularism because it is "a freedom 'from' establishmentarian imposition." (25) Hostile secularism, on the other hand, is a belief that a "state should actively pursue a policy of established unbelief." (26) Although the American government has never explicitly endorsed a policy of established unbelief, many opinionated leaders do espouse tenets of hostile secularism. Such tenets include beliefs like "religious reasons and arguments must be excluded from shaping public policy; ... religious symbols and practices are relics of a bygone era that continue to exert coercive power and must be vanquished;" and "funding of faith-based entities is divisive," and should thus not be allowed. 27 Secularism, whether hostile or benevolent, is thus a philosophy with its own set of truth claims. (28) And although "[a] secular baseline is commonly admired by many liberals as a neutral, impartial one ... that depends entirely upon one's viewpoint." (29) Advocates of secularism argue that the "secular" is neutral because it is what remains once one takes away religion. (30) Yet two points counter that argument.

   First, the determination that the absence of religion is neutral is itself a normatively laden, and thus not neutral, judgment. Black's Law Dictionary defines "neutral" in the context of "policy, interpretation, language, etc." as "not inherently favoring any particular faction or point of view; couched so as not to express a predisposition or preference." (31) But embracing the secular and rejecting the religious does "express a predisposition or preference." (32) As Paul Horowitz explains in his book The Agnostic Age, "Prevailing approaches to law and religion that purport to be neutral, or to hold religious and non-religious beliefs alike in equal regard, routinely fail to do anything of the sort. The perspective they ultimately offer tilts clearly, if (sometimes) unconsciously, in favor of the secular." (33) The legal "insistence upon neutrality ... border[s] upon religious hostility," 34 which is unsurprising given "how elusive is the line which enforces the Amendment's injunction of strict neutrality, while manifesting no official hostility toward religion." (35) By tilting towards the secular and removing religion, legal actors favor one worldview and set of truth claims over another. They are thus not acting neutrally. (36) Instead, they are creeping closer to imposing hostile secularism.

   The courts have also begun embracing a more hostile form of secularism. In his dissent in Locke v. Davey, (37) Justice Scalia commented:

   One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional. (38) He then warned that the Court's reasoning could lead to far-reaching...