Beyond neutrality

Christian Century, Oct 11, 2000 by Stephen L. Carter

Why state power grows and religious freedom recedes

Over the years, the Supreme Court has had trouble deciding between two competing theories on how the courts should interpret the religion clause of the First Amendment. One strand, which survives in popular discourse and in the courts but is in serious danger of vanishing from the academy, is the view that the state must be neutral, neither choosing among religions nor choosing between religion and nonreligion. Unsurprisingly, this is known in the literature as neutrality. The second strand, thriving in academic discourse but remarkably difficult to express in popular discourse, is that the state must take steps to accommodate religious believers whose practices are burdened by otherwise neutral state laws. This strand, predictably, is know as accommodationism.

I confess that I have somewhat oversimplified a vast and often intricate literature. There are any number of carefully nuanced middle positions. Yet, in the end, nearly all theorists lean toward one of these two positions, simply because legal theory (unlike, say, literary theory) must finally guide the decisions by actual judges of actual cases. Consequently, legal theorists quite understandably feel impelled to tell us in the end how the cases should come out. And, in the end, just about everybody who presents a theory--no matter what the theory is called--winds up favoring something that looks an awful lot like either neutrality or accommodationism.

The problem is this: Neutrality is a theory about freedom of religion in a world that does not and cannot actually exist, whereas accommodationism, although a theory about the real world, is not really a theory about freedom of religion. Accommodationism is certainly to be preferred, at least if one takes religion seriously. But one must also be careful. Although a theory of religious freedom is plainly necessary to the proper function of the state (because its courts must decide actual cases), a theory of religious freedom may be unnecessary to, and might even prove dangerous to, religion itself.

Why do I say that neutrality is a theory about a world that does not and cannot exist? Because neutrality supposes that it is possible for the state to act without taking any account of religion generally, or of the specific religious beliefs of constituent groups. No religion is to be favored over any other; nor is religion generally to be favored over nonreligion. The metaphorical wall of separation of church and state (which is only a metaphor, although we sometimes pretend is a part of our constitutional law) seeks to capture this idea: there is the sphere of religion and the sphere of the state, and a mighty wall protecting each from the other.

But none of this is possible.

In the first place, what we are bold to call neutrality means in practice that big religions win and small religions lose. When the Supreme Court decreed in 1988 in Lyng v. Northwest Indian Cemetery Protective Association that three Indian tribes in California could not prevent the Forest Service from allowing roadbuilding and logging on their sacred lands, the justices believed, I suppose, that they were acting neutrally: the tribes had no more right than anybody else to protect the lands. But from the point of view of the tribes, whose religious tradition, as the justices admitted, would be "devastated" by the government's action, there was nothing neutral about the destruction of the forest. With the forest gone, their religion also would be gone: a neutral result without any remotely neutral consequences.

A more powerful religion would not suffer so from neutrality. To take what might seem a painfully obvious example, nobody proposes to build a road through the Cathedral of St. John the Divine in Manhattan. My own Episcopal Church, although our numbers are dwindling, remains sufficiently powerful that nobody would even dream of so absurd a notion. (And, lest you object that the federal government "owns" the national forests, and not the cathedral, let me add that nobody would dare try to take the cathedral through eminent domain either.) To be sure, neutrality governs this result: the cathedral is not safe because it is a religious building; it is safe because it is a building valued by a politically powerful constituent group. But that only illustrates the point. Neutrality is a blueprint for the accidental destruction of religions that lack power.

The reason neutrality fails is that it imagines an impossible world. No true wall of separation is possible. Religion and the state, the two great sources of control all through human history, will never be fully separate from each other. Each will always shade into the other's sphere. Schoolchildren learn this truth in their science classes: All containers leak. The only interesting question is how fast. In the case of religion and state, the leakage is rapid, and constant. How could matters be otherwise? Religion, by focusing the attention of the believer on the idea of transcendent truth, necessarily changes the person the believer is; which in turn changes the way the believer interacts with the world; which in turn changes political outcomes. Although there have been some clever moves in political philosophy to explain why the religious voice should not be a part of our public debates, such theories wind up describing debates from which deeply religious people are simply absent.