Neutrality Between Church and State: Mission Impossible?

Abstract

As I sat at my desk in Connecticut to consider what I could contribute to this volume as a cultural historian of American law, I recalled a remarkable visit I took recently to Cincinnati, Ohio. My wife and I had visited Cincinnati immediately following a three-week stay in Germany, and because I hope it will shed light on how many Americans understand the relation between church and state, I wish to begin this essay by describing why I was in Ohio and painting a picture of some of the men and women I met there — a kind of American portrait in thick description. Before I do, however, I wish at the outset to state my basic view of the subject of religion and state neutrality. My view is that state neutrality toward religion can and should remain a guiding aspiration of American constitutionalism, but that the ideal has been complicated in practice by an old and continuing American tradition — one that I believe contrasts with socio-legal life in post-war Germany and, perhaps, Israel, in which universalistic liberal ideals and institutions are grounded in and viewed as inseparable from particularistic religious commitments. The U.S. Supreme Court, furthermore, has played an important institutional role in coping with the cultural tension to which this popular belief system has given rise, using the concept of neutrality as a tool of constitutional cultural management for a society that is at once highly religious, liberal, and increasingly pluralistic.