As is obvious, all "neutrality" principles depend on agreement on the baseline. When I was teaching courses on the Constitution and the welfare state, I often began with the UAW food stamp case, in which the majority solemnly asserted that Congress was simply trying to "level the playing field" in depriving strikers (and their families) of food stamps, while Justice Marshall was accurately describing it as part of the vehemently anti-union program of the newly empowered Republican Party. This is, of course, the identical debate surrounding Friedrich. I think Lewis Powell must be smiling from the grave at the extent to which the Supreme Court has become rabidly anti-union; others, of course, will present a quite different analysis, no doubt adopting "neutralist" language.
It's not that I'm opposed to neutrality arguments; it is, rather, that I rarely think they will really persuade anyone who begins with a different baseline. Consider, e.g., whether the United States and the states systematically favor Christianity by adopting Sunday as the ostensible day of rest. Surely the answer is yes. One of the additions to the new edition of our casebook is consideration of the fascinating debate during the Jacksonian era about mail delivery on Sunday, and the proclamation by the Baptist senator who headed the relevant committee that separation of church and state required that the US be indifferent to the Christian Sabbath (and thus deliver mail). It was not until 1912 that Sunday delivery was finally stopped. Should that have been ruled unconstitutional then, or now, as a violation of the "neutrality" principle? What all laws do is put pressure on people to conform with the law, especially when benefits or burdens are attached. High taxes, as Ben Carson points out, makes it harder for religious individuals to tithe, as a practical matter. So what? sandy
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