The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality. This book defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.

Two factions dominate contemporary discussion of these issues in American law. One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good—flawed because it is satisfied with something...

What is neutrality? In this chapter, I will clarify the concept, and show that it is susceptible to many specifications. Then I will examine the particular kind of neutrality that has come to prevail in American law.

One of the many ways that government can go wrong is to take a position on some question that it should abstain from deciding. The classic example is the question of which (if any) religion is true. The idea of neutrality holds that government ought to avoid this pathology. Claims for neutrality will always be claims that the state ought to abstain from...

Has American neutrality any deeper point than political compromise and accommodation? Do the state’s efforts to minimize religious remainders, to avoid taking sides on any live theological controversy, show any aspiration that is not hostage to shifting patterns of political power?

This chapter will show that there is such an aspiration—one that antedates the founding, that animated the framers of the First Amendment, and that has had a powerful influence on the Supreme Court when it laid the foundations of contemporary doctrine. This is the idea that religion can be corrupted and degraded by state control. It entails that...

Is the corruption argument an appropriate basis for legal doctrine? It may be that Americans had good reasons for conceptualizing religious liberty in the way that they did. But courts are supposed to make their decisions on the basis of the law, not the full range of reasons that any human being might have for acting. Why is it legitimate for courts to try to minimize the remainder of religious outliers and avoid the corruption of religion?

The religion clauses do not state a rule. Neither “establishment of religion” nor “free exercise” is self-defining. Many constitutional rules are like this....

American law treats religion, specified very vaguely, as a good thing. Should it? Some argue, with Christopher Hitchens, that “religion poisons everything.”¹ If this is right, then American law is perverse, treating as a good something that is malign.

Our question is not whether religion, generically, is good. That question is profoundly unanswerable. In societies in which religious understanding and practice are implicated in most if not all of social life, such as ancient Sumerians or modern Brooklyn Hasidim, there is no secular world that stands apart from the transcendent cosmic order.² For those who live in such a framework,...

American religious neutrality is one of the world’s most successful legal strategies for coping with the fact of religious diversity. In the United States, a growing proliferation of remarkably different religious factions live together in peace and even some harmony. It is a spectacular achievement. Those on both the left and right who aim to dismantle this regime and replace it with a different one have a heavy burden of persuasion.

This is an academic book, primarily directed at scholars of law and political philosophy. The approach to religious diversity that it endorses, however, is not just for scholars. It...