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Assumptions underlying the arguments

             While, plainly, a more thorough presentation of these positions is beyond the scope of this paper, even these brief summaries reveal differences in perspective that range beyond the specific constellations of fact or the particular legal questions at issue in each case. Rather, they signal assumptions about the ways in which a pluralistic society should (or should not) accommodate both majority and minority viewpoints, and about the efficacy of the social mechanisms that exist to resolve disputes arising from these divergent views. As Minow's discussion of difference suggests, it may the degree to which these assumptions are acknowledged and considered, more than the merits of any prevalent argument, that will inform the prospect of arriving at an equitable, mutually inclusive resolution. When "we make audible the struggles over which version of reality will secure power," Minow reasons, "we disrupt the silence of one perspective, imposed as if universal."[42]

             Approached from this vantage, the Court's neutrality doctrine, and the arguments that support and refute it, variously unveil the judiciary's collective premises regarding neutrality as a concept--its meaning, its viability, and its intrinsic consequences. Specifically, the doctrine reflects the judiciary's widely (though not universally) shared belief that courts and judges can be neutral--that they are able to interpret issues objectively and without any particular perspective, that judgments separate from one's singular matrix of experiences, inclinations, and constructions of reality are possible. As Minow argues, however, such impartiality is less a description than an aspiration: even the "ideal of objectivity itself" may mislead, to the extent that it "suppresses the coincidence between the viewpoints of the majority and what is commonly understood to be objective or unbiased."[43]

             The legal system may be uniquely vulnerable to such a superimposition of viewpoints, given the system's historical grounding in Western philosophical and cultural practices and traditions. To revisit the Court's own observation in Zorach, our national institutions--including, presumably, the courts--"presuppose a Supreme Being." According to Minow, "[j]udges may be particularly disabled from perceiving the state's message about a dominant religious practice because judges are themselves often members of the dominant group and therefore have the luxury of seeing their perspectives mirrored and reinforced in major social and political institutions...."[44]

             To overlook the inevitable partiality of the observer, Minow warns, risks "conceal[ing] its impact on our perception of the world."[45] Consequently, the status quo remains untouched. Left unresolved are the questions and consequences of unequal social power between those who hold predominant versus minority views--hence the continued need for religious minorities either to accept or to seek legal remedies regarding practices they find invasive (e.g., Christmas-season creche displays by municipalities; the hiring of chaplains by state legislatures; the presence of religious references on currency and in civic ceremonies). At times the courts have refused to end such practices, choosing to characterize them as institutionalized traditions, too deeply entrenched to alter (see, e.g., Marsh v. Chambers, 1983).[46] This pragmatic interpretation may neglect historical as well as minority perspectives: for example, Bronowski and Mazlish note that John Locke, a significant influence upon the framers, "rejected mere tradition as a justification of the exercise of power."[47]

             Opponents of the Supreme Court's rulings on prayer and Bible reading of course maintain that, far from affirming predominant perspectives, these decisions have neglected, even flouted, mainstream views. The Court also leaves unresolved the questions and consequences of whether secular public schools promote particular world views that undermine religious beliefs or whether their assimilationist functions are authentically inclusive. Meanwhile, its critics argue, the neutrality doctrine actively acknowledges--if not favors--the concerns of its most vocal supporters: atheists, agnostics, non-Christians, civil-rights groups.

             From the majority's vantage, then, these positions might be employed to frame several further assumptions. For example, the Court takes for granted that removing religious exercises from the schools does not weaken religious institutions or parents' efforts to inculcate religiously based beliefs and values in their children, that exposure to these principles at home and at church, temple, or synagogue is enough. According to Nielsen, "[t]he question is whether religious institutions can mediate their heritage completely isolated from the larger experience in education.... A cultural tradition cannot be transmitted by the religious community alone."[48] Yet the Court simultaneously presumes that the public schools are a proper social institution for instilling in children some set of common values (at least those common values needed for effective citizenship), that government is the appropriate institution for identifying these values, and that such values are, when particular religious practices are omitted or particular religious perspectives "objectively" framed, fairly and meaningfully presented.

             Exacerbating this tension further, for these critics, is the Court's apparent supposition that it is possible to teach without teaching values, that course content can be rendered ethically neutral. Of course, this critique itself assumes that values must be religiously based, that reason, empathy, and secular philosophies, e.g., the ethics of civic virtue or citizenship, in themselves provide inadequate girding for the development and preservation of ethical principles. It presumes, in essence, that only religiously based values are legitimate values. The more limited implication that religious values provide a necessary or presumptive framework for effective citizenship education faces similar conceptual difficulties, as well as significant legal obstacles in light of even narrowly read First Amendment proscriptions. (Pfeffer argues that similar reasoning could be employed to justify widespread tax support of religion and religious education in the schools--even government endorsement of, and aid to, particular religions, if these are deemed more conducive to the promotion of good citizenship. These possibilities, he says, have been "rejected even by those who hold that the Amendment goes no further than forbidding government from preferring some religions over others.")[49] As clearly, claims that the Court rulings "favor" religious minorities or that they efface local opinion ignore the Court's proper role in adjudicating such disputes: shielding the fundamental rights of minorities against the contrary will and greater social power of the majority.

              Neuhaus and others have argued more generally that democratic States must affirm a particular source or system of ultimate meaning, one embodying prevalent beliefs, as a legitimating and mediating force. In the absence of foundational and superseding religious values, Neuhaus posits, the only possible course is elision into a morally vacant, atomized relativism leading to the generation and maintenance of new, compensatory values by the State, and a consequent shift from democracy to totalitarianism.[50] However, the lived experiences of many people, who have regarded themselves and who have been regarded by others as authentically ethical and principled--as individuals and as citizens--but who have not drawn their ethics or principles from any (or any single, externally supplied) religious or political framework, materially contradict this position. Government and religion are not the necessary sources of a meaningful or moral civic ethos. Neuhaus similarly assumes the viability of divorcing an abstract, conceptual reification of particular religious views by government from the more concrete expression of those beliefs in forms of political or hegemonic control. But this argument is also logically inconsistent. The designation of particular beliefs as the presumable or officially approved social norm is incompatible with the Constitutionally protected freedom to believe differently. Historical and present-day counterexamples--the many past instances of intolerance toward religious minorities in the United States (and elsewhere), and the extent to which such majority/minority, inclusive/exclusive dynamics remain at play in contemporary American society--point empirically to this contradiction. He likewise distinguishes between his social vision and the creation of a theocracy, but fails to recognize that even his more "moderate" approach, rooted in the affirmation of predominant religious views by the State, can only be termed theocratic. As such, it insulates the status quo from critical reevaluation, or dissent.

             Indeed, such arguments reveal more fundamental assumptions often made by opponents of neutrality regarding the worth or status of minority perspectives. These assumptions are explicitly manifested in the claims that prayer and Bible reading should remain in the public schools because they reflect a "common" cultural heritage, or that they embody "our" society's values--in other words, that there is, or there should be, a history and a core of spiritual beliefs that are shared universally by all individuals within the culture. From Minow's vantage, however, these claims may stem from the hidden assumption that "other perspectives are irrelevant,"[51] that the perspectives of those who do not share predominant beliefs are unimportant. Because mainstream beliefs are represented by certain religious practices, their unquestioned inclusion and reification in the schools (and in civic life generally) is justified. The effective exclusion of those who believe differently is therefore irrelevant to considerations of their individual rights, because they have consciously "chosen" not to "fit in."

             Similarly foreclosing our ability to recognize and consider issues of difference, Minow contends, is the assumption that the status quo is "natural, uncoerced, and good:" because existing social arrangements are seen as "good, natural, and freely chosen,"[52] they do not warrant reevaluation. Those injured by these arrangements are themselves to blame because they have made "neutral" choices presumably unaffected by particular personal or historical contexts, by social constraints, or by contrasting conceptions of culture and society--choices that led inevitably (given the "unalterable" nature of the status quo) to foreseeable, if unwanted, consequences. But Minow offers another possible perspective, that the fault lies not in the "different" person but rather in the "dominant institutional arrangements that were designed without that trait in mind--designed according to an unstated norm reconfirmed by the view that alternative perspectives are irrelevant or have already been taken into account."[53] Assertions that the First Amendment was intended only to bar establishment of a State church or favoritism among Christian sects, but not the State's support and promotion of (Protestant) Christian beliefs and values, thus dismiss the perspective of the religious minority. As Shapiro comments, it is a view possible only when "the power of the state is in the hands of Protestants."[54]

              Another, complementary possibility is that minority views have not been so much deliberately ignored or diminished in these arguments as they have been unseen and unheard. As Minow observes, "[a minority] perspective may go unstated because it is so unknown to those in charge that they do not recognize it as a perspective.... [Conversely, a dominant] perspective may go unstated because it is so powerful and pervasive that it may be presumed without defense."[55] This dynamic finds expression in the view that, rather than be neutral, government should aid "all religions" actively and equally; but it is more likely that supporters of this cooperationist position assume "all" to include only “mainline” religions (a term incorporating, at least within this context, both Christianity and Judaism, i.e., faiths which, in Shapiro's terms, "have been around long enough to have enough followers to have assumed 'respectable' positions" in American society)[56]--and, of course, the perspectives of atheists and agnostics go unrecognized.

             The failure to see different spiritual perspectives is mirrored even more distinctly in the specific context of school religious exercises. Those who endorse a generic, "nondenominational" prayer to an Almighty Power make invisible the perspectives of atheists, of agnostics, of religions that do not acknowledge the existence of one supreme being (or that do not conceive of an anthropomorphized deity that attends to human worship and petitions), and of those who regard religious exercises as the sole province of family and church. Similarly, claims that the Bible is universal to "all" faiths, or that it may be used for nonsectarian "moral inspiration," overlook the perspectives of those who do not believe in any religious texts, of believers who subscribe to a version of the Bible other than that formerly prescribed (or that may be prescribed) by the schools, and of religions that employ other sacred texts.

             Even approaches that acknowledge and attempt to "accommodate" the rights of religious minorities mistake the consequences that would follow from the State's alignment with any religious belief. Most critically, the argument that school religious exercises are acceptable as long as objecting students are allowed to opt out misses the central issue: that these practices confer, in the Supreme Court's phrase, "the imprimatur of government approval" on some belief systems but not upon others, and that this symbolic endorsement may be experienced both as invasive and as potentially harmful, in terms of social repercussions, by those it excludes. It thereby neglects the social reality of the schools, that students who would like to absent themselves from religious activities would be marked as "different," and that the consequent informal pressures to conform and to avoid peer ostracism may make the option of nonparticipation effectively meaningless. In the same sense, this interpretation denies the reality of socialization, that, in the predominant culture, children are encouraged largely to accept the judgments and authority of their teachers and the school. If prayer or Bible reading are part of the school's daily routine, it is doubtful that many students would have sufficient perspective to perceive a qualitative distinction between such practices and the teacher's presentations of secular, academic content. They would likely interpret religious exercises less as a private or voluntary matter, discrete from the public sphere, than as further sets of facts or "truths" to be learned. With or without exemptions, the exercises would function as a form of indoctrination. Consequently, the possibilities for real dissent would be radically endangered. Even a generic "moment of silence" begs the question, "For what?" Though the Court might regard the practice as acceptably inclusive, its only evident function is to make room for prayer in the curriculum, regardless of whether the time has been explicitly labeled for that purpose.

             Finally, more general contentions that the Court decisions embody and accelerate an increasing secularization of American society often do not differentiate sufficiently between conceptions of society in general and of government and governmental institutions, such as the public schools, in particular. As Pfeffer argues,

...the secularization of the state does not mean the secularization of society. Only by accepting a totalitarian philosophy, either in religion or politics or both, can the state be equated with society.... Our democratic state must be secular, for it does not purport or seek to preempt all of social life. Similarly the public school need not and should not be the totality of the educative process.[57]

Some critiques of civic neutrality suggest, perhaps rightly, that the distinction between government and society becomes murkier in the schools, where the public and private spheres meet and where the question of indoctrination arises, on all sides. At the same time, we must critically question Glenn's atomistic version of religious individualism, which makes problematic the very prospect of creating or sustaining a truly common educational experience, one adequate to support a shared, coherent, and still vigorous public life.

             In reviewing the more specific claims of the ultra-fundamentalists, Provenzo believes their objections to a more secular or humanist society and their advocacy of prayer in the schools stem less from a concern over particular philosophies or practices than from a more global response to a changing society--and, specifically, to their perceived loss of status within the social structure:

...[A]lthough the Social Revolution of the 1960s empowered many individuals, it also diminished the influence and authority of those whose cultural and social values had predominated up until that time. Institutions such as the mass media, public education and the Supreme Court clearly supported alternative visions of culture and society--ones that often conflicted with groups such as the ultra-fundamentalists....

[W]hat is at play are competing value systems and the status and recognition afforded to individuals in the culture.... The public educational system in the United States, with its diverse curriculum and relativistic point of view, threatens the ultra-fundamentalists' assumption that there are Absolute Truths and, ultimately, the status that they have held in American society. Controversies such as whether or not creationism should be taught in the schools and whether or not prayer and Bible reading should be allowed reflect a direct attempt on the part of the ultra-fundamentalists to gain equal status for their view of the world.[58]

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