Neutrality vs. neutrality
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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
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
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
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
4. The idea of formal neutrality sets up a constitutional
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.