Saturday, January 09, 2021

"A Single Ideal of Neutrality"

The very first two paragraphs of the casebook's introduction to Religion and the Constitution (p.1763) says that the Free Exercise and Establishment Clauses call for "a single ideal of government neutrality in matters of religion." It then goes on to pose a "common example" of a state university permitting a wide range of student groups to meet on campus for the purpose of speaking on political or social issues.

Thus, young republicans, young democrats, feminist groups, LGBT groups, the ACLU group, environmental groups, and others are all allowed to meet on campus to express their views. What does neutrality require when a religious group, say, Campus Crusade For Christ or a Muslim student group, wishes to participate in the student group forum on campus?

If religious groups are excluded, "does this constitute discrimination against religion in violation of the free exercise clause?" If religious groups are allowed access, "is the state subsidizing religious worship in violation of the establishment clause?" Does it make sense to understand the EC to forbid what the FEC requires? Does the First Amendment contain one religion clause or two? If one, is it at war with itself? If two, are they mutually inconsistent?

If the two clauses taken together require "a single ideal of government neutrality in matters of religion," then what does neutrality require? If neutrality towards religion is the goal of both clauses, is there any conflict between the Free Exercise and the Establishment Clause here? Does an "equal access" rule subsidize religion? Or does it subsidize free speech in a neutral marketplace of ideas open to all? If religious groups are excluded, is anyone's liberty burdened? If religious groups are permitted equal access with all other student groups, is anyone's religious liberty burdened?

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