'Neutrality' has become the slogan that the Supreme Court uses for judging all claims of freedom of religion whether under the Establishment Clause or the Free Exercise Clause. However, the word 'neutrality' conceals the Court's inconsistent use of the concept. Thus, in Rosenberger v. Rectors of the University of Virginia, the recent debate about funding for religious publications, both the majority and the dissent asserted that only their approach was truly neutral.
This inconsistency in the meaning of neutrality in the religion clauses is merely part of a general inconsistency in the Court's treatment of the religion clauses. Some of these conflicts are between the Establishment and Free Exercise Clauses. The Court's Establishment Clause cases evince a concept of neutrality that prohibits laws with non-neutral effects, while the Court's Free Exercise Clause cases allow non-neutral effects. Taxpayers may challenge the use of the government's money to support religion; however, they may not challenge the government's donation of a 77-acre tract of land and buildings to the Valley Forge Christian College. The Court even says that the Free Exercise Clause itself conflicts with the Establishment Clause.
These inconsistencies are not confined to differences between establishment and free exercise. There are also inconsistencies between those clauses and closely related constitutional provisions. The Court's intent-based test under the Free Exercise Clause allows exemptions; the Equal Protection cases on which the Court's Employment Division v. Smith opinion relied for the intent test do not. The Court relies on Jefferson's and Madison's support for freedom of religion in free speech cases. The author of the most recent of these opinions has argued that Jefferson's and Madison's support for freedom of religion is irrelevant in freedom of religion cases. Coercion is not an element of a free speech case; [coercion] is an element of a free exercise case.
These inconsistencies demonstrate not only the ambiguity of the word 'neutrality,' but also the lack of any agreement on the appropriate techniques for interpreting the word. This Article seeks to supply the omission by arguing that the Court should interpret the idea of 'neutrality' in the Free Exercise and Establishment Clauses according to the Framers' and ratifiers' understanding of the federal Constitution as a social contract. According to this social contract theory, the government was created to protect pre-existing rights and acquired its powers by succeeding to some of the rights of the people that formed it. [excerpt]
Greg Sergienko, Social Contract Neutrality and the Religion Clauses of the Federal Constitution, 57 Ohio St. L.J. 1263, 1326 (1996).