Viewpoint Neutrality and Its Rationales

Abstract

The notion of “viewpoint neutrality” may partly owe its impact to the popularity of the notion of “neutrality” in other contexts of liberal political and legal theory. For example, in the context of the relationship between state and religion, the notion of state neutrality towards religion has often been thought to be the best interpretation of the complex set of rules governing the relationship between law and religion in liberal-democratic states. As Sidney Hook wrote some years ago, “a genuinely democratic state, especially one which contains a plurality of religious faiths, should be neutral in matters of religion, and regard it as essentially a private matter”.1 In the United States, the Supreme Court has repeatedly asserted its commitment to “a scrupulous neutrality by the State, as among religions, and also between religious and other activities”.2 To be sure, this ideal of state neutrality towards religion is far from being uncontroversial. In a 1985 decision, the then Justice Rehnquist opined that “nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion”.3 Nevertheless, it is certainly a well entrenched idiom within this strand of doctrinal and judicial opinions which emphasize the need to maintain as strict a separation as possible between the secular state and religious beliefs and institutions, and which demand that the law should be prevented “from entering the purely private domain of religious expression and belief”.4