And I Don’t Care What It Is: Religious Neutrality in American Law

Abstract

Many aspects of present American law in this area are puzzling. Some kinds of official religion are clearly impermissible, such as official prayers and Bible reading in public schools. Laws such as a ban on the teaching of evolution are struck down because they lack a secular purpose. Yet at the same time, “In God We Trust” appears on the currency, legislative sessions begin with prayers, judicial proceedings begin with “God save the United States and this Honorable Court,” Christmas is an official holiday, and, of course, the words “under God” appear in the Pledge of Allegiance. Old manifestations of official religion are tolerated, while new ones are enjoined by the courts: the Supreme Court held in 2005 that an official Ten Commandments display is unconstitutional if it was erected recently, but not if it has been around for decades. There is confusion about faith-based social services, public financing of religious schools, and the teaching of “intelligent design.”

All this, I will argue, makes sense. The key is understanding the precise level of abstraction at which American law is neutral toward religion.