June 28, 2002

The Refining of Religious Neutrality


SANTA FE, N.M. — Yesterday the Supreme Court played a calming role in the culture wars by declaring that the era of strict separation between church and state is over. In a welcome decision, the court upheld a public program in Cleveland that financed vouchers that could be used in religious or secular, public or private schools. In doing so, it embraced a healthy vision of religious neutrality. But a day earlier, the old-line strict separationists had what may be their last hurrah. A decision by the Court of Appeals for the Ninth Circuit found that the Pledge of Allegiance, in its reference to one nation "under God," violated the First Amendment.

The Supreme Court's vision of neutrality — which holds that a government program enacted for a valid secular purpose is not unconstitutional if that program incidentally benefits religious organizations — represents a moderate and appealing vision for addressing church-state issues, one that can accommodate the concerns of liberals and conservatives. By contrast, the appellate court's strict separationism — one that banishes all religious expression from the public arena — is a polarizing vision. Although liberals may oppose the Supreme Court's decision, in truth the foundational principle of neutrality set forth in the ruling will make it harder for religious conservatives (including those on the court) to argue for the constitutionality of school prayer and other state-sponsored support of religion.

Since the 1980's, three visions of the relationship between church and state have competed on the Supreme Court. On the left, there are the separationists, who want to prohibit any traces of religion in public life, from voluntary Bible study after school to religious opinions in student newspapers. On the right, there are the religious supremacists, who believe government can provide direct aid to religion and can sponsor prayers in the classroom as long as the prayers are nondenominational.

And in the shifting center there are advocates of religious neutrality, who argue that religious institutions may compete for government funds on equal terms with secular institutions as long as the private choices of individuals, rather than the policies of government, determine the ultimate destination of the funds.

In the vouchers case, the principle of religious neutrality was unequivocally embraced by five justices. Writing for the majority, Chief Justice William Rehnquist declared that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, the program does not violate the First Amendment's prohibition against the establishment of religion. It didn't matter that 96 percent of the children enrolled in the Cleveland voucher program were enrolled in religiously affiliated schools. Any benefit to the religious schools was the result of the choices of parents rather than of the government.

This is not a victory for the religious right. School prayer was not at issue in the voucher case. But the neutrality principle will constrain arguments for the resurrection of school prayer in the future. Prayer, by definition, is not neutral between religion and nonreligion. And constraining the conservatives is important, because at least three justices — Clarence Thomas, Antonin Scalia, and Justice Rehnquist — have intimated in past cases that while they support religious neutrality, they also support an interpretation of the Establishment Clause that would allow promotion of nondenominational religion by the state. In a remarkable concurring opinion in the vouchers case, Justice Thomas wrote that states should be freer than the federal government to experiment with involvement in religion, including sponsoring prayers and passing laws that touch on religious matters, as long as the prayers don't discriminate among religions.

Reverting to strict separationism will not defeat conservative efforts to put the government on a religious mission. Indeed, the outrage expressed by politicians of all stripes toward the Pledge of Allegiance decision shows that separationism is more likely to induce a backlash against more moderate interpretations of the Establishment Clause. The principle of government neutrality, however, offers a way for moderates to resist Justice Thomas's extreme view.

At the same time, this principle will also constrain secularists from trying to remove references to religion in the public square. The federal appellate judges who struck down the Pledge of Allegiance were not, of course, making up law out of thin air. They applied various strands of past Supreme Court decisions on the Establishment Clause to hold that the addition of the phrase "under God" in 1954 lacked a secular purpose, since its goal was to promote religion.

But Supreme Court justices, including the most liberal ones, have also recognized over the years that the reference to God in the Pledge of Allegiance probably does not offend the Constitution since it has such a minimal religious effect. The pledge, taken as a whole, was not intended to be a coercive prayer, but was designed to promote patriotism, and as such is consistent with the neutrality principle.

The emotional reaction to the Pledge of Allegiance decision shows how polarized America can become over the issues of church and state. That ruling will almost certainly galvanize Republicans to push for the appointment of conservative judges who will seek to place religion in the center of public life. Embracing the Supreme Court's moderate compromise — requiring that the state neither encourage nor discourage religion in any way — can check the extremists on both sides. The voucher decision shows that at least for now, the center holds.

Jeffrey Rosen is an associate professor at George Washington University Law School and the legal affairs editor of The New Republic.

Copyright 2002 The New York Times Company