Of (UN) Equal Jurisprudential Pedigree: Rectifying The Imbalance Between Neutrality and Separationism

Abstract

The Supreme Court's recent Establishment Clause decisions have framed neutrality and separationistn as competing principles. A plurality of the Court views evenhanded neutrality as the superior principle over separationism and the controlling model for Religion Clause adjudication generally. A bare majority insists that the two principles are of equal jurisprudential pedigree. So framed, neutrality and separationism have been placed on an apparent collision course, forcing Supreme Court justices as well as church-state scholars to choose between one principle or the other. This Article proposes an alternative view of the relationship between separationism and neutrality. When viewed within its proper role and function, neutrality serves as an adjunct to separationist'', and can only contribute a value consistent with the history and purpose of the religion clauses by existing as a subordinate principle.