A Funny Thing Happened on the Way to Neutrality: Broad Principles, Formalism, and the Establishment Clause

Abstract

In recent years the landscape of Establishment Clause jurisprudence has changed dramatically. Landmark decisions, such as Zelman v. Simmons-Harris, have placed significant emphasis on the concept of neutrality, specifically formal neutrality. Yet claims of neutrality cannot be proven. There is no independent neutral truth or baseline to which they can be tethered.

This article addresses the inherent problems with the principle of neutrality in Establishment Clause cases. The principle sounds good in theory, but since there is no neutral baseline from which we can gauge claims of neutrality, it is an empty concept. Yet, the Court has been increasingly gravitating toward neutrality, specifically formal neutrality, as the centerpiece of its Establishment Clause doctrine. While this shift has not taken place in every context to which the Establishment Clause can be applied, it has become dominant in government aid and equal access cases. This move is dangerous not because of its results, but because the Court has gone from using neutrality as a broad and vague principle that needs other principles such as separation or accommodation in order to function, to both the means and ends of Establishment Clause analysis.

As an alternative to neutrality (and other broad principles), this article recommends looking beneath broad principles to narrower ones, which may be applied separately or in tandem to issues under the Establishment Clause. Relying on Douglas Laycock's concept of substantive neutrality, divorced from any claim to neutrality, the article proposes a test that is focused upon whether government activity facilitates or discourages religion. The test is not formalistic like the current Court's formal neutrality approach, but it is better able to address the highly complex and contextually bound issues that arise under the Establishment Clause.