What Counts as Neutrality? The Religion and Race Cases Compared

Abstract

This Article explores the impact of neutral principles in constitutional adjudication involving race and religion. It questions the various justifications used to decide Establishment Clause cases by treating the decision in Zelman v. Simmons-Harris as a focal point. The policy question that it poses is this: Given the intersection of the history of race and religion and the Court's jurisprudence, is it problematic in terms of the First Amendment that those of us who are less economically, socially, and educationally free might also be less religiously free due to the disparate effects of neutrality at the intersection between religion and race?