Disparate Conceptions of ‘Theological Neutrality’: A Critical Analysis

In the landmark case of Abington Township, Pennsylvania v. Schempp (1963), the Court ultimately held that public schools cannot sponsor daily Bible readings or morning prayer recitations on the grounds that these two activities violate the Establishment Clause — even if student participation is entirely optional. In doing so, the Court’s majority rejected the notion that these two morning activities could be justified on the basis of serving legitimate secular or "theologically neutral” purposes: such as “the teaching of fundamental literature” or “promotion of moral values.” Instead, writing for the Court’s majority, Justice Clark overviews prior Court holdings that advocate for a “complete and unequivocal” separation of church and state requiring the “permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.” Then, Justice Clark applies his subjective interpretation of “theological neutrality” to the facts of this case by reasoning that these activities violate both the Free Exercise Clause and Establishment Clause because encouraging (or allowing the school to recognize) Judaeo-Christianity constitutes “indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion” since “the power, prestige and financial support of government” is placed behind the activities in question. Justice Clark goes further to suggest that this albeit “minor” entanglement “tends to destroy government and to degrade religion." For this reason, quoting James Madison, he contends that: “it is proper to take alarm at [this] first experiment on our liberties.” Justice Clark goes on to generalize about the broader role of religion within society and seems to explicitly appeal to Locke’s ‘belief-action distinction’ which revolves around “the inner persuasion of the mind.” He concludes his opinion by boldly asserting that: "The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church, and the inviolable citadel of the individual heart and mind.” This quote encapsulates Justice Clark’s contestable conception of what “state neutrality toward religion” means because it clarifies his support for an entirely secularized public life. This conception of his is only further substantiated by his statement that the state cannot legitimately pass any laws which effectively “aid one religion, aid all religions, or prefer one over another.” This view of the role that religion ought to play within society, implies that religious exercise and symbolism should be almost exclusively relegated to the private sphere, because this best mitigates the risks associated with church and state entanglement: such as sectarian divisiveness within our county, the corruption of religious institutions, and the rise of tyranny. 

Town of Greece v. Galloway (2014) shares many similar facts and constitutional questions with Schempp. In this occasion, however, the Court held that the context and early history surrounding the First Amendment suggested that the Establishment Clause was never meant to prohibit legislative prayer or similar “benign acknowledgement[s] of religion's role in society.” Such holding relied on the Marsh precedent. Writing for the majority, Justice Kennedy explained that the prayers need not be secularized (or made “theologically neutral”) because such a requirement would effectively "place the government in the forbidden position of policing prayer and religious speech.” Contextualizing this activity, Justice Kennedy maintained that: “The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the [local] institutions they represent rather than to exclude or coerce nonbelievers.” Interestingly, Justice Kennedy is careful to note that the prayer in this case was primarily meant for the legislators, and therefore — the prayers cannot plausibly coerce any voluntary attendees into religious observance. Even so, this public religious expression also falls far short of “coercing” legislators according to Justice Kennedy (and Justice Thomas in concurrence) because there has always been a significant difference between exposing constituents to prayers “they would rather not hear and in which they need not participate” and “legal coercion backed by threat of penalty.” Most astutely, Justice Kennedy concludes by condemning the utter hypocrisy of establishing an admittedly vague or hallowed-out religion for the sole purpose of avoiding the establishment of a more particular religion, when he exclaims that: “Government may not mandate a civic religion that stifles any but the most generic reference to the sacred, any more than it may prescribe a religious orthodoxy.” Justice Kennedy is also careful to include in this opinion that an “untutored devotion to the concept of neutrality” must not lead to “a brooding and pervasive devotion to the secular.”

Notice how, unlike Justice Clark, Justice Kennedy expresses a predisposition to permit public prayer on the legal basis that it respects law-abiding citizens’ First Amendment rights to freely exercise their faith without incurring actual ‘establishment’ or ‘coercion.’ This judicial stance of his indicates that he interprets “theological neutrality” similarly to how Chief Justice Rehnquist did: as a doctrine not meant to purge the public sphere of all semblances of traditional religiosity. Instead, we might refer to Justice Kennedy’s approach in this case as that of a ‘majority-favoring accommodationist’ since the town of Greece is predominantly Christian, and he was aware of this fact. Such interpretation of ‘neutrality’ is only ‘neutral’ insofar as it doesn’t privilege any particular denomination of religion, because it simultaneously indicates an affinity for public theism over public secularity. 

Despite the disparate interpretations of ‘theological neutrality’ characterized by these two conflicting holdings, it seems that these jurists may agree upon more than meets the eye upon deeper analysis. Consider the following two commonalities. For one, both justices express a desire to avoid unnecessary entanglement between church and state for fear that it will corrode both institutions. They also both sincerely fear the establishment of a religion as a state-mandated orthodoxy. Therefore, the difference between them seems to revolve around what constitutes a ‘real’ religion? For Justice Clark, the suggestion that purging public schools of optional prayer ushers in a secular orthodoxy is almost silly. On the other hand, Justice Kennedy seems to genuinely consider the imposition of secularism as a de facto establishment of the very sort of ‘religious’ orthodoxy that the establishment clause was meant to prevent against. In this sense, there appears to be genuine and ‘good faith’ (no-pun intended) disagreement because reasonable people can disagree upon how broadly or narrowly we ought to define “religion.” Secondly, there seems to be another fundamental disagreement regarding what constitutes legitimate coercion? Again, this is not an easy question. On one hand, Justice Clark appeals to the aforementioned idea of “indirect coercive pressure” that appears tantamount to what most people would refer to as “peer pressure.” On the other hand, Justice Kennedy has a significantly higher threshold for what qualifies as true coercion, as he requires a threat of punishment (such as a fine or even jail time). 

Lastly, American Legion v. American Humanist Association (2019) presents several familiar lines of argumentation. Ultimately, the Court held that a presumption of constitutionality applies under the establishment clause to longstanding memorials with historically secular purposes and traditions, even if they contain religious features. In this instance, the debate was over a WWI cross on public land that honored fallen soldiers. Writing for the Court’s majority, Justice Alito explained that: “[The cross] has become a prominent community landmark, and its removal or radical alteration at this date would be seen by many not as a neutral act but as the manifestation of ‘a hostility toward religion that has no place in our Establishment Clause traditions.’” Interestingly, Justice Alito’s functional notion of theological neutrality in this case is one that is largely deferential to the history and ‘cultural rootedness’ of the religious symbol under review. Alternatively, Justice Ginsberg reveals that she uses different criteria for determining theological neutrality because she is unwilling to allow a symbol’s ‘cultural rootedness’ or ‘acceptedness’ to dictate her judgment of whether it is theologically neutral today. She ends up concluding that the character of the cross has not changed over time, that it remains emblematic of Christianity, and that it prospectively does a disservice to fallen soldiers who aren’t Christian. This unresolved micro-dispute over how to properly assess a public symbol’s ‘theological neutrality’ in light of its history, only further testifies to this particular legal term’s ongoing vulnerability to judicial bias. 

Tom Bickel is a senior concentrating in Political Science and Philosophy at Brown University. He serves as a staff writer for the BULR Blog, and can be reached at thomas_bickel@brown.edu.