The U. S. Supreme Court has repeatedly declared state neutrality toward religion to be the goal of the Religion Clauses of the First Amendment. In Everson v. Board of Education, for example, the Court held that the First Amendment "requires the state to be neutral in its relations with groups of religious believers and non-believers."1 This obligation to be neutral forbids government from passing "laws which aid one religion, aid all religions, or prefer one religion over another." (Everson, 15) At the same time, this neutrality also forbids government from becoming an "adversary" of religion or from depriving citizens of "the benefits of public welfare legislation" because "of their faith, or lack of it." (Everson, 18, 16, italics omitted) We can express the neutrality principle that the Court finds in the First Amendment as follows: government must not pass laws that either favor or burden a particular religion, religion in general, or non-religion in general. For the sake of brevity, I will refer to this principle as commanding neutrality simply toward "religion," but the reader should bear in mind that I take state neutrality toward religion to include both neutrality among religions and neutrality between religion and non-religion.

We can relate the principle of state neutrality to the two Religion Clauses by reading the Establishment Clause ("Congress shall make no law respecting an establishment of religion…") to limit government’s ability to advance or promote religion, and the Free Exercise Clause ("…or prohibiting the free exercise thereof") to limit government’s ability to burden or inhibit religion. This essay is an inquiry into how we should understand the principle of state neutrality under the Establishment Clause. In the first section, I relate the issue of state neutrality to the current debate over the ideal of public reason. In the second section, I take up the substantive question of how the Court should interpret state neutrality by considering two competing interpretations of the Establishment Clause.

I. State Neutrality and Public Reason

The ideal of a state that is neutral toward religion is not self-explaining or self-justifying; it presupposes a philosophical basis that is more "primitive" than neutrality and provides the explanation and justification for it. A number of commentators have argued that the goal of state neutrality is "to minimize the extent to which [the state] either encourages or discourages religious belief or disbelief, practice or nonpractice, observance or non-observance" so that religion is left "as wholly to private choice as anything can be."2 Underlying the desire to minimize state influence on religious choices is the idea that the free choice of religion (or non-religion) is an important good to be protected by the liberal state. The idea of free religious choice has its counterpart in liberal political philosophy in the idea that each individual should be free to choose his or her own religious or non-religious conception of the good.

State neutrality, then, is justified by reference to the underlying idea of individual religious freedom. We can say initially that the Establishment Clause prohibits the state from passing laws that favor or promote a particular religious or non-religious conception of the good (or set of such conceptions). However, the notion of laws that "favor" or "promote" religion is ambiguous and can be given more precise meaning in at least two different ways. These two different ways draw upon the distinction between the reasons or purposes for which a law is passed and the effects of that law. The requirement that a law be passed only for reasons or purposes that are neutral toward religion expresses a notion of neutrality that John Rawls has called "neutrality of aim."3 Although Rawls voices some reservations about using the term "neutrality," he claims that it is possible for a state to pursue neutrality of aim. He sharply distinguishes neutrality of aim from a second meaning of neutrality that he calls "neutrality of effect or influence." Neutrality of effect requires the state to "cancel" or "compensate" for any effects its institutions and policies have on which conceptions of the good its citizens adopt. (Rawls (1993), 193) Rawls is right to reject neutrality of effect (so conceived) because it is impossible to identify and control the myriad ways in which the basic contours of a liberal polity influence the religious convictions of its citizens. But the idea that state neutrality can be explained without some notion of effects that are impermissibly harmful or beneficial to religion is mistaken. For if we cannot entirely prevent the state from affecting its citizens’ religious beliefs and practices, then state neutrality requires us to determine which of these effects are consistent with respecting each citizen’s religious freedom and which ones are not.

Let us now turn to neutrality of aim. In order to understand neutrality of aim, we must first make sense of a "neutral reason or purpose." Current debates utilize "the ideal of public reason" in order to explicate neutrality of aim.4 A fundamental assumption of the ideal of public reason is that reasons for political action that proceed directly from an individual’s religious or non-religious conception of the good are not publicly accessible, either in the sense of being unintelligible to those who do not share them, or in the sense of being non-authoritative as reasons for political action (even if intelligible) to those who do not share them. The non-public nature of such reasons stands in contrast to reasons that proceed directly from a liberal conception of justice. According to Rawls, a conception of justice can be "worked up" from certain fundamental political ideas that are "implicit in the public political culture of a democratic society" without invoking the non-public reasons of any particular religious or non-religious conception of the good. (Rawls (1993), 13) The resulting conception of justice is "neutral" in the sense that one can accept it without accepting any particular religious or non-religious conception of the good.

A liberal conception of justice—or as Rawls now puts it, the family of such conceptions (since more than one is possible: Rawls (1997), 773-774)—provides citizens with publicly intelligible and authoritative reasons and values with which to deliberate about and justify political decisions. These reasons and values constitute a society’s "public reason." When one speaks of adhering to the ideal of public reason, one means abiding by the requirement to justify one’s political decisions using the reasons and values of public reason, as opposed to relying exclusively on reasons peculiar to one’s religious or non-religious conception of the good. On this account, we can say that neutrality of aim consists in the existence of a justification in terms of public reason for any piece of legislation. Neutrality of aim requires only that a law possess a justification in terms of public reason, not that the legislators who pass the law actually give that justification. This is because the limitations imposed by the ideal of public reason express a "duty of civility" that is not legally enforceable. (Rawls (1993), 217)

The ideal of public reason enables us to distinguish between those cases where state action benefits religion consistently with state neutrality, and those cases where state action benefits religion in violation of state neutrality. When state action benefits religion as the unintended result of pursuing some publicly justifiable purpose, then that benefit cannot be seen as the expression of a state preference for any particular religion. Therefore, that action is consistent with state neutrality toward religion. On the other hand, when state action benefits religion without a purely public justification, then that action can only be justified in terms of the "sectarian" beliefs or values of some particular religious or non-religious conception of the good. In this case, the state acts in ways that are likely to influence citizens’ religious convictions and decisions out of the belief that one particular religious or non-religious conception of the good is superior to other such conceptions. This kind of state action is inconsistent with state neutrality toward religion.

While it has much to recommend it, I do not think that the public reason conception of state neutrality is correct as it stands. As Gerald F. Gaus has recently pointed out, we may be able to say that certain liberal principles, such as that all citizens should enjoy the protection of the basic rights and liberties, are publicly justifiable among all reasonable citizens, but these principles only gain universal acceptance when they are specified at an abstract level.5 Publicly justified principles are "underdeterminate": they may rule out some political proposals as unreasonable, but they do not determine which from among a range of reasonable interpretations of these principles is the correct one.6 When it comes to applying these principles to actual political questions, citizens must descend from the level of abstraction and defend concrete interpretations that are subject to reasonable disagreement. Moreover, the abstractness and underdeterminacy of these principles will often force citizens to invoke controversial moral and metaphysical beliefs that derive from their conceptions of the good in order to reach determinate resolutions of pressing political questions. The disputes over abortion and same-sex marriage illustrate this point. In the case of abortion, it is impossible for the state to avoid taking a religiously controversial position on the moral and metaphysical status of the fetus. In the case of same-sex marriage, it is impossible for the state to avoid taking a religiously controversial position on the ethical value of same-sex relationships.

The upshot of this criticism is that where many political controversies are concerned, there will be no purely public justification for state action. Rather, the justification of state action in these cases will be a mixed one: it will offer an interpretation of publicly justified principles that appeals to religiously controversial beliefs and values. If this is correct, then we cannot take the existence of a purely public justification to be a necessary condition of state neutrality toward religion. We need some other way of distinguishing between state actions that benefit religion consistently with the commitment to state neutrality, and those that do not.

I propose the following substitute for the requirement of a purely public justification. We can distinguish between state actions that are justified by appeal to religiously controversial interpretations of publicly justified principles, and state actions that are justified by appeal to the view that all citizens should adopt a particular religious or non-religious conception of the good. Neutrality of aim should only prohibit state actions of this second kind. A state action for which the only plausible interpretation is that it has been motivated and justified by the view that citizens should adopt a particular religious conception of the good because it is "superior along one or another dimension of value than one or more other religions or than no religion at all" (Perry (1997), 15), violates neutrality of aim, and hence, state neutrality toward religion. Kent Greenawalt has described state actions of this kind as justified by "imposition reasons."7 The contrast class for state actions justified by imposition reasons are cases where we can plausibly interpret state action as motivated and justified by a religious interpretation of some publicly justified liberal principle. If it is true that the underdeterminacy of public reasons forces citizens and public officials in at least some cases to resolve political disputes by appeal to religiously controversial beliefs, then state neutrality cannot plausibly be interpreted as prohibiting them from doing so, and we should condemn as non-neutral only those state actions that are justified by imposition reasons.

II. Separationism and Neutralism

Let us now consider how the Supreme Court should go about answering the substantive question of what constitutes state neutrality toward religion under the Establishment Clause. There are two main ways of interpreting the Establishment Clause, which I will call "separationism" and "neutralism."

Separationists advocate a "no-aid" theory of the Establishment Clause. According to the no-aid theory, the Establishment Clause mandates the establishment of a "secular public order" that "forbids government to put its imprimatur of approval on religion through any official action."8 The legislature violates state neutrality whenever its laws channel public money to institutions that "teach or practice religion" such as churches, synagogues, and private religious schools. The no-aid theory also prohibits the state from mustering its symbolic or discursive resources in support of religion by, for example, displaying religious symbols on government property or by requiring prayer in the public schools. All direct support for religious institutions, doctrines, and symbols must come from the voluntary exertions of the faithful; any benefits that religion derives from the state must be the incidental result of neutral measures designed to benefit the public at large. However, even incidental benefits must fall short of "direct public funding" of the "core sectarian activities" of a religious group.9

For separationists, the proper baseline from which to measure departures from neutrality toward religion is the baseline of government inaction.10 In other words, government is neutral toward religion to the extent that it does nothing to promote religious belief and practice. Religious choices are free only to the extent that government does nothing to skew individual choices in favor of one religion or religion in general by endorsing or advancing religious beliefs and activities. State support for religion can only be motivated by the view that a particular religious conception of the good or religion in general is worthy of adoption or pursuit, which amounts to an imposition of religion. On the other hand, the state faces no such disability where secular beliefs and organizations are concerned and can support them freely.

We should pause to determine exactly what the term ‘secular’ means in the context of the separationist approach. ‘Secular’ can refer to beliefs and activities that are neutral between all religions in the sense that they do not depend for their validity or importance on the truth of any particular religion. Alternatively, ‘secular’ can refer to beliefs and activities that are neutral between all religions and between religious and non-religious conceptions of the good. In this second sense, ‘secular’ is equivalent to the Rawlsian term ‘public’—secular beliefs and activities are ones whose validity and importance can be recognized by all citizens regardless of which religious or non-religious conception of the good they hold. In which of these senses do separationists use the term? It seems to me that if separationists are offering an interpretation of state neutrality toward religion, which includes neutrality between "groups of religious believers and non-believers"(Everson, 18), then they must be using the term in the second sense. If this is right, then they must also believe that the secular beliefs and organizations that are entitled to state support are genuinely religiously neutral in the sense that they do not explicitly or implicitly favor or advance any non-religious conceptions of the good. I will return to this point below.

In contrast to separationists, neutralists embrace a non-discrimination theory of the Establishment Clause. Neutralists argue that with rise of the modern welfare state, there is a substantial overlap in the function of many religious and secular agencies in the provision of education, health care, and welfare services. They hold that whenever religious and secular organizations perform the same public functions, they are entitled to public support on the same terms. Government violates the Establishment Clause when it funds a religious organization without adequate public justification or when it awards benefits to an individual or organization solely on the basis of religious affiliation. The criteria for inclusion in any public program must be non-religious and those criteria must be justified by their relevance to achieving the aims of the program. Otherwise, the state is guilty of a religious imposition. The Establishment Clause is also violated whenever the state puts its symbolic or discursive resources exclusively behind the beliefs, symbols, and practices of a single religious or non-religious group (or subset of such groups). But state neutrality is not violated when government opens public fora to the expression of religious views on an equal basis with non-religious ones.

Neutralists argue that the proper baseline for judging whether a religious organization is entitled to public support is the "government’s treatment of analogous secular activities." (Laycock (1997), 48) The analogous secular activity baseline rules out direct public support for religious organizations that are not engaged in some publicly justifiable activity, but it ensures that religious organizations receive public support on the same basis as similarly situated non-religious organizations. If a religious organization meets the criteria for inclusion in some scheme of public aid, then it should be included on the same terms as its non-religious counterparts. To deny access to public funds or facilities only to religious organizations, or to condition access on the "secularization" of an organization’s activities, creates incentives for religious individuals and organizations to deny their religious commitments. Therefore, denying public aid to religious organizations on a non-discriminatory basis skews individual choices away from religion, which violates the goal of state neutrality.

A number of considerations support choosing neutralism over separationism as the more adequate theory. The "core application" of separationism has been to prohibit public aid from flowing to "pervasively sectarian" institutions, a term that is virtually synonymous with religious primary and secondary schools. (Laycock (1997), 54) But the Supreme Court has allowed public aid to religiously affiliated colleges and social service agencies on the grounds that they are not pervasively sectarian.11 The Court has also upheld public aid to parochial schools when it is possible to distinguish between the religious and secular activities of the school and to guarantee that public aid only supports the latter (without requiring the state to engage in intrusive monitoring). Separationism thus allows public aid to religious organizations if "religious indoctrination" is not their primary function or if the aid only supports their secular activities.

However, serious problems plague the attempt to distinguish clearly between pervasively sectarian and non-sectarian institutions and between their secular and religious functions. The Court’s distinction between parochial schools and religious colleges underestimates the secular nature of much parochial school instruction and ignores the pervasive religious presence on the campuses of many religiously affiliated colleges.12 More importantly, the separationist goal of supporting only the secular activities of religious organizations without simultaneously advancing their religious interests is fundamentally misconceived. Any public aid flowing to a religious organization has the effect of supporting its religious mission because it frees up other funds that can be used for explicitly religious purposes. The Court’s official commitment to the no-aid theory forces it to deny this fact by making dubious and hairsplitting distinctions between forms of aid that do and forms of aid that do not advance religion.13

Neutralism avoids these problems by requiring only that religious organizations receiving public aid perform some legitimate public function. Neutralism allows the state to support religious schools, hospitals, and social service agencies on equal terms with their secular counterparts. The state does not support these institutions because they are religious but because of the important public functions that they perform. Neutralism also holds that such organizations should be subject to public regulation as a condition of receiving public support. The purpose of public regulations is to ensure that religious organizations meet public standards of safety, accountability, and effectiveness, not to keep religious organizations from infusing their public activities with a religious perspective. Within the constraints that these regulations impose, organizations receiving state funds are free to be as religious as they want to be.

A second and deeper flaw with separationism lies in its claim that an "entirely secular public order" is consistent with state neutrality toward religion. In Section I, I argued that a state is neutral toward religion as long as it acts for the sake of publicly justifiable principles—even if those principles must sometimes be interpreted in religiously controversial ways. Separationists take this requirement one step further and argue that only secular agencies and perspectives should be included in public programs. As I noted above, the exclusion of religious organizations and perspectives from public programs is consistent with state neutrality only if secular agencies can remain neutral between all religious and non-religious conceptions of the good in their operation.

It is doubtful that they can. Many publicly funded organizations and institutions must deal with issues that lie beyond the scope of secular (or publicly justifiable) beliefs and values or in relation to which these beliefs and values are underdeterminate. For example, hospitals must answer questions about when human life begins and ends, schools must address questions about the best way to conduct sex education, and social service agencies must address questions about how best to rehabilitate drug addicts. What are the secular (religiously neutral) answers to these questions—answers that are publicly justifiable to all reasonable citizens in a religiously diverse society? It would seem that truly secular answers to these questions, if they exist, would be similar to the publicly justifiable principles discussed in the first section of this essay: they would be abstract and underdeterminate and therein would lie their appeal for the adherents of diverse religious perspectives. However, since it does not make much sense to say that the state should promote only abstract and underdeterminate responses to such questions, it is more likely that what will pass for secular answers to these questions will actually incorporate moral and metaphysical beliefs deriving from one or more non-religious conceptions of the good. In this case, "secular" organizations cease being neutral between religion and non-religion, and begin more or less directly to promote non-religious approaches to serious moral issues.

Neutralism avoids this slide into unacknowledged non-neutrality by allowing the state to fund schools, hospitals, and social service agencies that incorporate a variety of religious and non-religious perspectives. The operative principle behind the neutralist approach is that the state is neutral (or more nearly so) when it supports organizations with a wide variety of philosophical and religious orientations and then allows citizens to choose which ones they will use. The state serves as the default provider in cases where a diversity of organizations is lacking or where a citizen lacks access to one expressing her religious commitments. In institutional settings where the state controls an individual’s "total environment" for long periods of time (such as public schools, the military, and prisons), neutralism avoids promoting non-religion by providing individuals with opportunities to engage in voluntary religious exercises.

By allowing the state to fund a diversity of non-governmental organizations and by ensuring that public institutions are compatible with voluntary participation in religious exercises, neutralism is able to eliminate the incentives to reject religious perspectives that would be created by an entirely "secular" public order. It is thus the preferable alternative when it comes to interpreting state neutrality toward religion under the Establishment Clause.

Notes

1. 330 U.S. 1 (1947), 18.

2. See, for example, Douglas Laycock, "Formal, Substantive, and Disaggregated Neutrality Toward Religion," Depaul Law Review 39 (1990): 1002.

3. Rawls, Political Liberalism (New York: Columbia University Press, 1993), 192.

4. See Rawls (1993), Lecture VI, and "The Idea of Public Reason Revisited," The University of Chicago Law Review 64 (1997): 765-807.

5. Gerald F. Gaus, Justificatory Liberalism: An Essay on Epistemology and Political Theory (New York: Oxford University Press, 1996), 165.

6. Michael J. Perry, Religion in Politics: Constitutional and Moral Perspectives (New York: Oxford University Press, 1997), 57.

7. Kent Greenawalt, Private Consciences and Public Reasons (New York: Oxford University Press, 1995), 57-61.

8. Kathleen M. Sullivan, "Religion and Liberal Democracy," The University of Chicago Law Review 59 (1992): 205.

9. Rosenberger v. Rector, 115 S.Ct. 2510 (1995), 2540 (Justice Souter dissenting).

10. Douglas Laycock, "The Underlying Unity of Separation and Neutrality," Emory Law Journal 46 (1997): 48, 70.

11. Frederick Mark Gedicks, "Religion," in The Oxford Companion to the Supreme Court (New York: Oxford University Press, 1992), 720.

12. Frederick Mark Gedicks, The Rhetoric of Church and State: A Critical Analysis of Religion Clause Jurisprudence (Durham: Duke University Press, 1995), 85-88.