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By Phillip Johnson

Foreordained Failure

"Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom," by Steven D. Smith. Oxford University Press, 192 pp.; $32.50

Mere Creatures of the State? Education, Religion, and the Courts, by William Bentley Ball. Crisis Books, 132 pp.; $13.95, paper

Steven D. Smith is a University of Colorado law professor who deals with abstract intellectual issues; William Bentley Ball is a practicing lawyer who represents religious groups and individuals seeking freedom from dominance by government entities committed to secularism. Both men have valuable insights into a revolution that is currently under way in the interpretation of constitutional law regarding freedom of religion and religious establishment.

This revolution involves a changing understanding of what it means for the government to be "neutral" on religious questions, neither favoring nor opposing either particular religions or religion in general. For at least the last 25 years, the dominant principle (occasionally ignored in practice) has been that neutrality means "no aid" to religion. The competing principle, which now seems to have five votes on the Supreme Court, is that neutrality means giving "equal treatment" to religious and nonreligious entities alike.

In a context where the government is giving substantial subsidies or benefits to nonreligious entities--such as secular educational institutions or student activities--the two principles have radically different consequences. Under the "no aid" principle, it is unconstitutional (as an establishment of religion in violation of the First Amendment) for the government to broaden the subsidy to include religious schools or groups; under the "equal treatment" principle, it is unconstitutional for the government to discriminate against those same religious entities by not broadening the subsidy.

The latest statement by the Supreme Court on the question is a 5-to-4 decision in Rosenberger v. Rector in June of this year. The case involved the ...

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