LETTERS II: ON DAVEY'S DEGREE

In reaction to these posts, Matthew Cowper wrote to defend neutrality as a valid free exercise approach:

[C]oncern[ing] "religious contentiousness" [as a justification for] the exclusion of funding for pastoral training, I'd say that just as religious viewpoints articulated by ministers, priests, etc. can be socially contentious, so too are the secular viewpoints of say, Harvard-educated deconstructionists, Berkeley-educated english profs and so forth; not that these views are invalid, but I do not think you can attribute social contention solely to the religious sphere. It's perhaps a difficult phraseology, but the secular priesthood is no less contentious than the religious priesthood. . . .

Underlying all this . . . would be my view that, in a democracy, strict neutrality ought to be demanded of the government's actions; but not of its words.

For more pro-neutrality arguments, see Owen at Southern Appeal here, Ken Masugi here (who had a brief exchange with Prof. West, most recently, here), and see also the essay at NRO by lawyer Susanna Dokupil, here.

On the contentiousness part: let me just say that whatever we academics would like to believe, my bet would be that our views are less interesting to most people than the views of their religious leaders. I'm not just being modest.

On the appeal of neutrality: let's remember something that Justice Scalia said in 1998, in the case of NEA v. Finley, in which he wrote separately to argue that the NEA can constitutionally engage in viewpoint discrimination in handing out federal arts funding:

Section 954(d)(1) is no more discriminatory, and no less constitutional, than virtually every other piece of funding legislation enacted by Congress. "The Government can, without violating the Constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program . . . ." Rust v. Sullivan, 500 U.S. 173, 193 (1991). As we noted in Rust, when Congress chose to establish the National Endowment for Democracy it was not constitutionally required to fund programs encouraging competing philosophies of government -- an example of funding discrimination that cuts much closer than this one to the core of political speech which is the primary concern of the First Amendment. See id., at 194. It takes a particularly high degree of chutzpah for the NEA to contradict this proposition, since the agency itself discriminates -- and is required by law to discriminate -- in favor of artistic (as opposed to scientific, or political, or theological) expression. Not all the common folk, or even all great minds, for that matter, think that is a good idea. In 1800, when John Marshall told John Adams that a recent immigration of Frenchmen would include talented artists, "Adams denounced all Frenchmen, but most especially 'schoolmasters, painters, poets, &C.' He warned Marshall that the fine arts were like germs that infected healthy constitutions." J. Ellis, After the Revolution: Profiles of Early American Culture 36 (1979). Surely the NEA itself is nothing less than an institutionalized discrimination against that point of view. Nonetheless it is constitutional, as is the congressional determination to favor decency and respect for beliefs and values over the opposite. Because such favoritism does not "abridge" anyone's freedom of speech.

Given Washington state's constitution, given the concerns about religious funding that permeate the establishment clause context, and given the fact that in other contexts, government may engage in viewpoint discrimination when it hands out funds, I think that Scalia has overreached in emphasizing the supposed requirement of neutrality in the area of free exercise. Neutrality is a judicial standard, developed in large part by Thomas, Scalia and Rehnquist to deal with both establishment clause and free exercise cases, in a way that allows for that court to dismantle the vestiges of the "high wall of separation" built by the Court after WWII in establishment cases as well as the respect for minority religions developed in free exercise cases. Neutrality is but one approach to religion cases, then, and it has a particular polemical aim. It also has the predictable effect of creating rights to government funding of religious activities. At the end of the day, however, I don't see why the idea of "neutrality" should swallow up all other concerns.