Neutrality

Gedicks again, on the claim that the Establishment Clause requires the government to remain neutral between “religion and irreligion” and between “belief and unbelief”:

“This dictum, present at the birth of contemporary Establishment Clause doctrine inthe Everson case in 1947, is my personal candidate for the most frequently invoked incoherent constitutional rule. I mean, really, what sense can one possibly make ofa rule that requires the government to remain neutral between a proposition and its negation? One may agree or disagree about what it could mean to be ‘neutral’ between various religions, but it is at least possible to have a sensible conversation about this. By contrast, there has always been something decidedly weird about the requirement that the government be neutral between religion and nonreligion, or belief and unbelief. Indeed, the requirement seems to constitute empirical proof that even the dumbest things can start to make sense if they’re repeated often enough.”

He elaborates, at length and amusingly:

“Consider then what government neutrality might mean in the context of professiona lbaseball. It is, of course, completely sensible to require that Congress be neutral between the Red Sox and the Yankees, or that the California Legislature be neutralbetween the A’s, the Angels, the Dodgers, the Giants, and the Padres, or, indeed,that Congress and all of the state legislatures be neutral with respect to all thirty major league baseball teams. But what could it possibly mean for Congress and the statesto be neutral as between baseball and ‘not-baseball’?

“For starters, I suppose, this would mean that baseball could not be treated any differently than not-baseball. So, Congress could not grant an exemption from the antitrust laws to baseball unless not-baseball got one, too. It would, therefore, be crucialto ascertain the referent of not-baseball. Would it be the National Basketball Association? Well, it is clearly not-baseball. The American Ballet Theatre? Also not-baseball. Fly-fishing? Watching public television? Cutting my lawn? All not-baseball. The Southern Cal defensive team against Vince Young in the 2006 Rose Bowl? Still not-baseball (and also not-defense).

“Logically, ‘not-baseball’ encompasses everything except ‘baseball.’ Accordingly, neutrality between baseball and not-baseball requires that every activity in the United States be exempted, like baseball, from the anti-trust laws and more generally, that every activity in the United States be treated the same as baseball. Not only is this nonsensical from a policy standpoint, it is nonsensical from any standpoint.”