A Two-Track Theory of the Establishment Clause

Abstract

The Establishment Clause has long been thought to protect two mutually antagonistic values, the separation of church and state, and government neutrality with respect to religion. Separation requires that the government sometimes treat religion worse, and sometimes better, than comparable secular activities. An Establishment Clause doctrine informed by separation presupposes that the involvement of government in matters of religious belief and practice threatens liberty in ways that government involvement in secular matters does not. Separationist doctrine thus subjects relationships between religion and government to special scrutiny, which may result in religion's being subjected to legal and regulatory burdens not imposed on secular activities, or relieved from burdens that are generally imposed on such activities. By contrast, government satisfies neutrality when it treats religious beliefs and practices no better, but also no worse, than comparable secular activities. Under an Establishment Clause doctrine informed by neutrality, religious belief and activity are not thought to be unique, and religion is treated as simply one among many possible activities in which citizens might choose to involve themselves. The vitality of both separation and neutrality in Establishment Clause jurisprudence makes articulation of a coherent theory of that Clause difficult because the competing values often point towards opposing resolutions. The puzzle of antagonistic values that neutrality and separation pose for Establishment Clause doctrine mirrors Speech Clause doctrine, which has operated for decades with such a value conflict under the so-called "two-track" theory of freedom of speech. The two "tracks" of Speech Clause doctrine are content-based and content-neutral analysis, which correspond to contrasting values of social order and the free flow of ideas and information. This paper compares Establishment Clause doctrine and the two-track Speech Clause in the hope of illuminating how neutrality and separation might coexist under the Establishment Clause. I will argue that, just as Speech Clause doctrine provides an absolute minimum of protection for freedom of expression against even content-neutral regulation, so also Establishment Clause doctrine provides a minimum level of church-state separation against even religiously neutral government actions. In other words, not only has the separation of church and state not been eclipsed by religious neutrality, but separation is actually the more fundamental Establishment Clause value. As such, separation remains a necessary check on interactions between religion and government that pass muster under neutrality analysis.