Professor McConnell on religious liberty in the modern Welfare-Regulatory State

The modern welfare-regulatory state wields three forms of power that potentially threaten religious pluralism: the power to regulate religious institutions and conduct, the power to discriminate in distributing state resources, and control over institutions of culture and education. Each of these powers can, and frequently does, promote homogeneity of all kinds, and especially with regard to religion. Too often, however, the Court has interpreted the Establishment Clause to oppose pluralism rather than to foster it by treating as unconstitutional (1) efforts by the political branches to reduce the degree to which the regulatory power of the state interferes with the practice of religion, (2) decisions to include religious individuals and institutions within public programs on an equal and nondiscriminatory basis, and (3) manifestations of religion within the publicly-controlled cultural and educational sector, even in contexts where competitive secular ideologies are given an equal place. Thus, instead of protecting religious freedom from the incursions of the welfare-regulatory state, the Establishment Clause all too often was interpreted to exacerbate the problem.

If the goal of the enterprise of the First Amendment is to treat religion and nonreligion neutrally (neither advance nor inhibit, neither endorse a message of approval or disapproval), how should the burdens and benefits of government be distributed to citizens of the Welfare-Regulatory State? Is the baseline of secular benefits and secular public culture one that is neutral between religion and nonreligion? What would authentic neutrality look like?