The idea of neutrality is central to many Establishment Clause and Free Exercise Clause cases (Religion Clause cases). A number of these Religion Clause cases do not refer explicitly to neutrality but instead refer to closely related ideas. These neutrality-related ideas include non-sectarianism, nondenominationalism, broad inclusivity, broad ecumenism, non-indoctrination, non-proselytization, non-divisiveness and even, in language suggestive of equal protection, non-discrimination. This Article explores both neutrality and those related ideas, which share the problems associated with the underlying idea of religious neutrality.
This Article concludes that neutrality and related ideas are not generally used in a coherent, workable, and reasonably persuasive way in Religion Clause cases. Examining seven alternative uses, functions, and interpretations of religious neutrality provides a better understanding why Religion Clause neutrality retains its prominence. But in the end, considering all the alternative approaches, alone or in combination, there is no genuinely workable, coherent, and reasonably attractive view of neutrality. Ultimately, one or more separate goals, standards, or criteria must be invoked to replace neutrality if our Religion Clause jurisprudence is to be as legitimate as possible. Religious neutrality is not an achievable goal.
R. George Wright, Can We Make Sense of Neutrality in the Religion Clause Cases: Seven Rescue Attempts and a Viable Alternative, 65 SMU L. Rev. 877 (2012)