Until yesterday I was under the impression that most respectable legal scholars held to the Jeffersonian “wall of separation” between church and state, and that the only real alternative advanced was in the sort of material that begins, “As you can see from the following quotes, the United States was founded as a Christian nation, on Biblical principles…”
I ran into some material from two different sources, both of which I consider reliable: The Oxford Dictionary of the Supreme Court and Corwin, that lead me to understand that there’s another view with some respectable support – one that holds the First Amendment guarantee to restrict government to a simple neutrality as between beliefs or between beliefs and no belief. Apparently Justice Story was an exponent of this view, Cooley (19th Century scholar of Constitutional law) held it, and even Wm. O. Douglas seems to have endorsed it. And that this is the basis for Justice Sandra Day O’Connor’s opinions with relation to church and state.
I’d be interested in what the learned Constitutional lawyers of this board have to say about it – what precisely it entails, what are the implications vis-a-vis the sorts of court cases involving religion that get argued here regularly, and so on. I start this here because I’m confident it will quickly become a GD, even if the answer is just a GQ.
The COnstitution is vague on that. Doesn’t really say either way. I don’t care so long as the government does not unduly support one religion over another.
Jefferson was not, after all, the only voice on the issue, nor was he by neccessity correct.
I’m not sure I understand the difference, Polycarp. It seems to me that maintaining neutrality leads to a Wall of Separation. Without the wall, the government isn’t neutral.
I agree with homebrew. Though there is a different rhetorical emphasis, the idea is basically the same. The key Lockian insight is that the government cannot really be given the authority to legislate over people’s beliefs in the first place, and so attempting to do so leads only to pointless strife. Jefferson’s “Wall” is a metaphor developed directly out of this idea.
I’m not sure that I understand the difference either, Homebrew, but there does seem to be some significant difference of understanding of where government power stops and where personal rights begin under the two theories, and it was for a clarification of that question that I began this thread. I’m hoping that Sua or Minty or Bricker or Dewey will wander by and elucidate.
Allow me to chime in that I also fail to see the difference. Maintaining a wall of separation is being neutral. Let’s look at prayer in school, for example. The “Wall” says it’s a no-no. Keeping neutral would also have to say it’s a no-no because you cannot favor one religion over another, or over none.
I don’t know…I’m by no means a constitutional lawyer, but I think I may see the difference the OP is refering to.
A wall implies that there is some fixed point, some definite boundary which the government is not allowed to cross, whereas neutrality seems to allow for a little more “wiggle-room.”
IOW, a wall says This is OK|_This is not.
This neutrality, at least to me, seems to mean:
_This is OK.,.‘xXxXxXxXxXx’.,.,_This is not.
There is an area which government can work in and legislate, but no exact, defined limit.
I’m with Homebrew too. Justice O’Connor’s “neutrality” position, so far as I’ve ever been able to tell, ends up in pretty much the same place you’d be as if you were thinking of things in terms of a wall. She lets a few things slide in that I personally oppose (particularly vouchers in the recent Cleveland case, which are in practical effect and quite likely intent not “neutral” at all between religion and non-religion), but that’s more a result of temperment, not nomenclature.
Where O’Connor’s position is new is that it modifies (to the extent that the other justices go along with her, which changes from case to case) the old Lemon three-part test for when the state violates the Establishment Clause. That’s a very complicated subject in itself, though you can read up on it in a fairly straightforward way here.
Well, I opened this thread because it seemed evident to Corwin that there was more of a difference than a alternative metaphor, but, unlike his typical expositions, it was not at all clear to me what difference it was that he saw. I was hoping that it was merely my blindness to the distinguishing features he saw, and that one of you Constitutional scholars could clarify it for me.
I think there’s a great degree of difference between seperation and neutrality.
Take something like prayer in schools. That would mean that the school should consider a request for prayer just as it would any other request for time, and may decide whether it is in the best interests of that school’s population or not. It would not be proscribed simply because it was religious.
On the issue of vouchers it would mean that the parochial nature of a school is moot.
I agree with what your saying – I just don’t like the ‘request for time’ analogy since it seems to leave out half of the standard. While we are all talking about one “time” in the analogy there are ‘various religions’ in the real world problem. Government has to remain neutral among the various religions. The “neutral” aspect means that the government will not involve itself among the existing established religions in a way that advances one religion over another. The “wall of separation” means that government will not involve itself directly a religion, that is, will not sponsor a religion. The Supreme Court doesn’t allow government lead prayer in school because it is government action which favors one religion over another. Hence, this is a neutral approach.
The Supreme Court has held that it does not violate the ‘establishment clause’ where religious symbols have been displayed on government property in a neutral setting. In this instance there was a nativity scene together with a menorah and symbols of other religions.
Of course Scylla, if you’re a constitutional lawyer, I submit to your expertise since I have none. Otherwise, I’m looking forward to posts by the lawyers on this subject. I’m no lawyer ---- yet –
I suppose one could see it as a philosophical distinction, in the sense that a “wall of separation” could be construed as active hostility between church and state. I don’t personally see it that way, however, and I doubt those justices who have taken the “wall” position would see it that way either.
Sorry I couldn’t be more helpful on this one, Poly.
Scylla:
No, I don’t think it would make any difference there. Even under a “neutrality” paradigm, what the school there is doing is simply not neutral. You can’t determine whether the religious content of speech is in the “best interests” of the students without deciding to endorse or reject the religion. That “endorsement” is O’Connor’s very own test for alleged Establishment violations. Check out last year’s prayer-before-football case for a good example.
As it would also be under the “wall” paradigm. Quite a few pre-O’Connor cases from the 60s-80s made the point that government cannot discriminate against parochial schools when handing out funding and other goodies to private schools. The central question in the Cleveland voucher case from this spring was whether government was promoting or endorsing religion when it established a program where it knew that the great majority of the funds would end up going to religious organizations. The Court decided that there was no such endorsement, citing the very same cases that say you can’t discriminate against religious schools in such matters, and that it was the private choices of individual citizens that determined where the money goes.
(To which I respond that there is no meaningful choice when your only options are a failing public school or a private religious school, but that’s a different thread altogether.)
How is allowing a moment of prayer an endorsement?
It seems to me that if you don’t allow it than that is an endorsement of atheism.
If a kid has an interest in fencing, and he gets a teacher involved and they organize a fencing team, has the school endorsed fencing, or has it simply been neutral on the process and allowed the students to explore their interests?
Another example might be a petition. If three quarters of the students sign a petition saying they want a prayer at the start of school, is it neutral to deny them?
Depends on what you mean by this. If it’s (A) a brief period of time during which religious students may choose to pray, then IMHO it’s not an establishment. (Strong separationist advocates might see it as such; I’ll let them make their argument) If it’s (B) a period of time during which a school official, paid with tax dollars, uses school equipment to lead a voluntary prayer, then it darn well IS an endorsement.
It’s neutral, and constitutional, to deny their request for “a prayer at the start of school,” in the sense defined in B in my previous response, for the precise reason that individual rights matter in this country. If three-fourths of the students want to pray, there is nothing preventing them from doing so; it’s their constitutional right to do so. But whether one student is a Christian or all-but-one students are, or whether one student is an atheist or all-but-one students are, or any other combination you choose to put in there, including a Wiccan-majority student populace, they have no right to inflict their religious preference as a mandate on their fellow students, just as no Christian and no atheist has the right to demand you practice his belief structure, or fail to practice your own in order to meet his views.
I see, but put it in terms of my fencing analogy. A teacher might get paid for their acytivities in starting a fencing team, and it might use school resources, and the results and the activities might be announced over the school loudspeaker.
Hypothetically this all might happen simply because kids got interested in fencing.
Other kids, that aren’t interested in fencing are going to have to sit there and listen to the announcements about the stupid fencing team. They’ll see resources taken up that are no longer available for other purposes.
So, if a paid teacher can help with school time and resources the fencing team, why wouldn’t he be able to lead a prayer under a neutrality interpretation?
It’s not necessarily. Depends on how it’s implemented, and why. Government cannot take any action with the intention of promoting religion–that’s the principle that shot down the Louisiana creationism law in the late 80s/early 90s. Basically, even though the state said it was just being neutral and giving all sides the opportunity to air the “facts,” there was plenty of evidence that the leguislature really enacted the law to promote a religious agenda and/or counter the atheism they saw inherent in science. Pretty much the same thing in the Santeria case, where the city of Hialeah went out of its way to ban the slaughter of animals as a pretext to harrass the city’s Santeria minority. Anyway, the point is that if the school adopts a “moment of silence” with the intention of encouraging prayer, that’s automatically an Establishment violation. Same thing (only more obviously so) if the school officials (state actors) leads the students in prayer or use individual students as proxies to led the students in prayer (the football case).
On the other hand, if it’s just a question of “allowing a moment” for students, that would not amount to an Establishment violation. If a student wants to prayon his or her own, the student gets to pray–that’s Free Exercise, after all. All those pray-around-the-flag groups we’ve heard about in recent years are doing exactly that, and schools cannot interfere.
In between, of course, lies a whole lot of gray areas. We resolve them as best we can, and we move on.
Depends on how the teacher is involved, doesn’t it? Is the teacher acting as a private citizen or a representative of the school/government? Is the teacher promoting fencing to the rest of the students? Is the teacher using school resources to encourage fencing? Is the teacher talking smack about tennis? It takes a lot of information to make these determinations, and even then it isn’t always pefectly clear. I would hope, however, you’re not taking the position that because a determination might not be made perfectly, no determination should be made at all.
Last time I checked, the student body does not determine how to run the school. When I was in high school, I got half the school to sign a petition demanding the removal of our assistant principal. The bitch stayed on, of course.
Somewhat more to what I think is your point, however, is this: An establishment of religion is no less an establishment when it is endorsed by the citizens. The First Amendment acts as a limit on what a government entity may do. The three quarters of the students who want to pray may certainly do so (as long as they do not disrupt school activities), but they may not co-opt the school into making their prayers a part of the school’s own function.
First, a disclaimer. There are over 100 cases dealing with the Establishment Clause of the First Amendment. The law surrounding the interpretation of that clause has been all over the map, from interpretations that it only applies to Congress and that State’s are free to establish any religion they want, to disallowing moments of silence at school functions. The point is it’s very messy.
Second, the distinction Polycarp is describing isn’t as close as some poster seem to think, at least in my view. Since WWII, Courts have been going around and around on how to interpret the Establishment Clause, with different interpretations winning, then losing, then winning again. The Wall of Separation of Church and State seems to imply a much more strict, interpretation that The Neutrality Zone.
Under the “Wall Theory”, Congress, nor that State’s should have any dealings with religious matters. No chaplain in Congress, no references to God in the opening of the Supreme Court, no In God we Trust on coins. As Justice Rutledge was of the opinion that the Establishment Clause: “was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.” It has a very strict interpretation.
Much more forgiving, and, it appears gaining more support, is the Neutrality Zone, which holds that Congress and the State’s must remain neutral on matter of religion. This interpretation allows school vouchers, and neutral holiday displays.
I believe you can make a distinction between these two ideas, and I also believe both views have legitimate historical, precedential, and political basis for their adoption. As I said, very messy.
JFTR, Hamlet, the First Amendment does only apply to Congress (and by extension the Federal government – an establishment of a religion by the Feds, whether by Congressionally-passed statute or a rule adopted subject by an agency created under such a statute). Since 1867, however, the Fourteenth Amendment has protected all American citizens from state encroachment on their rights as such – and the First Amendment defines rights of American citizens; this is the “incorporation” theory, held by most legal scholars since 1937.
Actually, Scylla, the analogy is really on all fours – since the Second Amendment does guarantee to Americans the right to bear the arms of their choice (and by implication the right to refrain from bearing arms). For the school to mandate that all students learn to use the epee, would be a violation of their Second Amendment rights; for it to offer opportunity to learn the epee, would be an enhancement of them.
The First Amendment states in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercize thereof…” The Fourteenth Amendment is interpreted to extend this restriction to the States and their creatures (ie, school districts, etc).
I believe (correct me, please) that some or all of this language was taken from similar statements in the extant State constitutions, mostly adopted during the period of the Articles of Confederation. Thus it came to the Constitution already having a context and history of interpretation.
The “wall” vs. “separation” debate echoes in many ways the debate concerning the rights of African Americans–“integration” vs. “separate-but-equal.” It was once argued, and formerly upheld by the Supreme Court, that the due process/equal protection clause allowed differing treatment (ie, segregation) as long as the law IN AND OF ITSELF did not MANDATE an inferior result for one group or another. Putting it my way, the Court did not allow oppressive discrimination per se; it merely held that a law cannot be overturned on the basis of its real-world results as long as the words of the law do not patently require such result. Bottom line: the lawmakers get the benefit of the doubt.
This was overturned sixty years later by the Warren Court. Very roughly, the revised majority view was, and is, that laws may be assessed according to their actual or likely results. A law that is perfect in form may be overturned if it is insufficiently attentive to the possibility that it will foster unconstitutional ends.
Bottom line: the rights of individuals get the benefit of the doubt.
In this setting, the debate on the religion clause becomes clearer. The “neutrality” people are taking something like a separate-but-equal stance: as long as competing religions are NOT PROHIBITED from taking a turn at bat (eg, having the teacher lead the class in a prayer compatible with that religion), no rights have been impaired. The “wall” people retort that the religionistic atmosphere engendered by such activities in public schools is inherently oppressive of non-favored religions and the irreligious.
Another argument is whether “make no law” can be construed to cover such things as the expenditure of public funds; and if so, whether the very possibility that minor, incidental, or ancillary uses of funds will produce an unconstitutional result requires the nullification of that funding act.
It’s usually argued via the establishment clause. The issue would be clearer if it were recognized that the due process/equal protection clause is closer to the core of the matter. IMHO.
