The troublesome religious roots of religious neutrality.

• Author: Koppelman, Andrew
• Position: Symposium: The Supreme Court's Hands-Off Approach To Religious Doctrine

The Supreme Court has repeatedly said that neither it nor any other branch of the state can decide matters that relate to the interpretation of religious practice or belief. The state may not attempt to determine the "truth or falsity" of religious claims, (1) courts may not try to resolve "controversies over religious doctrine and practice," (2) may not undertake "interpretation of particular church doctrines and the importance of those doctrines to the religion," (3) may make "'no inquiry into religious doctrine,'" (4) and may give "no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith." (5)

This has meant most concretely that, for cases involving disputes within religious organizations, the Court has had to craft special rules, distinct from those governing other controversies. At English common law, if issues of religious doctrine arose in disputes over contract obligations, tort claims, criminal fraud charges, or the administration of a trust, the courts would resolve those issues. (6) Most notably, property contributed to a religious body by a member would bear an implied trust in favor of the fundamental doctrines of that religious body, and in a dispute would be awarded to the group most faithful to those doctrines. (7) The Supreme Court has repudiated that approach. So the Court gives more deference to the decisions of church tribunals than it would give to similarly situated secular bodies. (8)

This doctrine has elicited objections:

(1) The rule is incoherent as applied to actual practice, since government in fact constantly makes religious judgments, notably when deciding who is entitled to a religious accommodation, or who the relevant religious tribunal is. (9) The rule is even self-contradictory, because it requires courts to decide which controversies are religious and thus beyond the state's cognizance. Because the rule can't be applied consistently, it in fact is applied inconsistently and arbitrarily. (10)

(2) "In reality, virtually every action taken by government at least tacitly teaches, if not the truth, then the falsity of some religious beliefs." (11) Thus, for example, teaching Darwin in the public schools implicitly contradicts the views of biblical literalists and creationists. Even the laws against murder contradict the religious beliefs of Aztecs. (12)

(3) Sometimes the state has a legitimate need to explicitly contradict, and attempt to change, the religious beliefs of some people. (13) Thus, for example, many American political leaders have noted the importance of encouraging the "ascendancy of a ... version of Islam that is ... friendly to pluralism, [free] markets, and secularism." (14)

To evaluate these claims, we must consider why the challenged rule exists--why it is regarded as appropriate for government to keep its hands off religious doctrine. The government should be neutral with respect to religious doctrine just insofar as neutrality is entailed by these reasons.

Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous, irrational dogmatism into politics and make democratic compromise more difficult. (15)

Here I want to emphasize one consideration that is often overlooked: the idea that religion can be damaged and degraded by state involvement with it. The neglect is apparent, for example, in Frederick Gedicks' (in many ways excellent and insightful) analysis of the Supreme Court's treatment of religion. Gedicks thinks that the Court is nominally committed to principles of secular individualism, which are suspicious of and hostile toward religion, (16) while much of the country is devoted to a very different ethic, "religious communitarianism," which permits the community to define itself and its goals in expressly religious terms, and which exerts a gravitational pressure of its own on constitutional interpretation. (17) Contemporary doctrine, Gedicks thinks, is an incoherent congeries of these incompatible elements. (18) His work articulates widely shared assumptions about the character of contemporary controversies. (19) However, he omits an important middle view, one that is friendly to religion but, precisely for that reason, is determined to keep the state away from religion. It is associated with the most prominent early proponents of toleration and disestablishment. (20)

The omission of this view makes the controversy over the meaning of the Establishment Clause (21) more polarizing than it needs to be. If any interpretive question simply turns on a choice between secular individualism and religious communitarianism, then in any Establishment Clause controversy, the state is taking sides between the forces of progressivism and religious traditionalism--in other words, it is adjudicating the bitterest issues of theological controversy that divide American religion (22) and thus doing precisely what the hands-off rule seeks to disable the state from doing. There is no middle ground between the two views, and compromise is impossible.

The degradation argument is important, because it offers a way to reframe the rhetoric of the Establishment Clause in a way that could moderate these tensions and make it possible to find common ground. The stakes are high.

If the religion-protective argument for disestablishment is to be useful today, however, it cannot be adopted in the form in which it was understood in the 17th and 18th centuries, because in that form it is loaded with assumptions rooted in a particular variety of Protestant Christianity. Nonetheless, suitably revised, it provides a powerful reason for government, as a general matter, to keep its hands off religious doctrine.

Part I of this Essay examines the way in which the Supreme Court has deployed the degradation argument and further explores the way in which the corruption argument depends on a claim that religion is, in some way, a good thing. Part II describes the classic formulations of the claim by the founding generation, with special attention to the way James Madison synthesized the very different religious views of the coalition against the Anglican establishment that he built in Virginia. Part III proposes a revision of the idea of corruption that separates it from its Protestant roots. Part IV responds to objections to the hands-off rule.

1. THE PARADOX OF "CORRUPTION"

   Federal law and the law of every state sometimes grant exemptions from laws, laws that presumably serve some valid purpose, when the laws place a burden on the free exercise of religion. (23) The accommodation of religion gives rise to a puzzle in First Amendment theory: how to reconcile free exercise with establishment principles. The Court has declared that "[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." (24) The Establishment Clause "mandates governmental neutrality between religion and religion, and between religion and nonreligion." (25) But the Court has also acknowledged that "the Free Exercise Clause, ... by its terms, gives special protection to the exercise of religion." (26) It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some Justices and many commentators have therefore regarded the First Amendment as in tension with itself. (27) Call this the free exercise/establishment dilemma.

   The solution to the dilemma, I have argued in earlier writings, is that the government is permitted to treat religion as a valuable thing, but only if "religion" is understood at such a high level of abstraction that the state is forbidden from endorsing any theological proposition, even the existence of God. (28) Accommodation is permissible so long as government does not discriminate, in its accommodations, between theistic and nontheistic religions. I will discuss this argument in more detail in Part III. This Essay will argue that the classic justification for the hands-off rule is further evidence that my account is correct.

   The corruption argument, I have already noted, rests on a core assumption that religion is valuable and that neutrality exists in order to protect it. This is apparent in the Court's most extensive statement of the corruption argument. In a decision invalidating a state's imposition of a nonsectarian, state-composed prayer to be read in public schools, the Court explained:

   [The] first and most immediate purpose [of the Establishment Clause] rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. (29) The Court makes two arguments here. The first is a contingent sociological claim, that establishment tends to produce negative attitudes toward the "particular form" of religion that is established. The second runs much deeper. In the final sentence, the Court claims that there is something fundamentally impious about establishment. It breaches the "sacred" and the "holy." It is remarkable to find such prophetic language in the U.S. Reports.

   The...