Neutrality vs. neutrality
J. Brent Walker

REPORT from the CAPITAL, June 28, 1994

Copyright (c) 1994 by the Baptist Joint Committee on Public Affairs
Used by the Council on Spiritual Practices with permission.

Most everyone believes that government should be "neutral" toward religion, but there are at least two ways of shooting for neutrality. There is "formal neutrality." This view sees religious liberty simply as an "equality" right. Religion will not be singled out for discriminatory treatment or targeted for special burdens. This view of neutrality is held by Justice Antonin Scalia and a slim majority on the Supreme Court, as expressed in Employment Division v. Smith (the so-called Native American Peyote case).

Another view is called "substantive neutrality." It sees free exercise not in terms of facial equality, but as a "substantive liberty." This kind of neutrality sometimes requires religion to be treated differently and given exemptions from governmental regulation. Churches that oppose the ordination of women should be exempt from the gender provisions of Title VII, and Jews should be allowed to hire rabbis, not Baptist preachers, to serve their synagogues.

The courts must exempt religion from substantial governmental burdens unless a compelling state interest can be shown. On the political side, legislators should exempt religion when either the Constitution or good public policy demands it, so long as it does not run afoul of the Establishment Clause.

This is the traditional view of the Supreme Court - at least from Sherbert v. Verner (1963) up to Employment Division v. Smith (1990), the view of the Baptist Joint Committee and the view that is embodied in the Religious Freedom Restoration Act of 1993 (RFRA).

The idea of religious liberty as a substantive liberty, not an equality right, is the proper way to view the operation of the Free Exercise Clause. Here's why:

1. The language of the First Amendment itself requires it. Religion is specially mentioned and protected as a fundamental liberty in the panoply of preferred rights. It is not phrased in terms of equal treatment.

2. History reports that religious exemptions were practiced and regarded as desirable during the late 18th century. Although the record is not uniform, language in the free exercise provisions of state constitutions parallels the concept of compelling state interest. And, legislative exemptions for such things like oath-taking and military conscription, show that exemptions were thought to be beneficial, if not constitutionally mandated.

3. Even if exemptions were foreign to the Framer's thinking, the world has changed dramatically in the last two centuries. The modern welfare state has the power to molest religion in ways that were unimagined by Jefferson and Madison, and the pervasive pluralism of our contemporary religious landscape calls all the more for increased sensitivity by government in the form of religious accommodation.

4. The idea of formal neutrality sets up a constitutional redundancy. Equality is already available under the Equal Protection Clause of the 14th Amendment. This view effectively guts the Free Exercise Clause of any meaning in its own right.

5. Formal neutrality imports a certain statism and majoritarianism into an essentially anti-statist, counter-majoritarian Bill of Rights.Indeed, Justice Scalia recognized as much when he wrote:

"It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in."

6. Substantive neutrality simply works better to protect religious liberty. It is true that during the high water years of free exercise the record of success was not all that good. But under a weaker standard it would have been even worse. Indeed, a comparison of the cases decided between Smith and RFRA's passage with those after RFRA prove the point.

7. Finally, formal neutrality results in inconsistencies on the Establishment Clause side of the First Amendment. Just as religion sometimes needs to be treated differently under the Free Exercise Clause to achieve true neutrality, so too must it be treated differently under the Establishment Clause. A strict view of formal neutrality when applied to the establishment clause would water down that clause as much as it does the Free exercise Clause.

So when you hear someone talk about the government "neutrality," be sure you understand which kind they are talking about. Only one fully protects religious liberty.