In the debate about the separation of church and state, the perspective known as nonpreferentialism is best understood as a subset of accommodationism. Like accommodationists, the non-preferentialists also oppose the recent legal trend which has emphasized stricter separation, and advocate instead a closer relationship between religious groups and the government.
Where nonpreferentialists differ from accommodationists, however, is that nonpreferentialists oppose any government “accommodation” which might tend to favor one religion or religious group over any other. They believe that the Constitution permits the government to support religion generally over non-religion and to encourage religion over non-religion, but not in a manner which would be discriminatory.
Thus, nonpreferentialists support government encouragement of prayers in public schools, but not if the prayers are sectarian in any manner. The government can only encourage prayers in principle, not in detail. Non-preferentialism also encourages government funding for religious schools — but only if all religious schools are supported equally. Nonpreferentialists also support the use of the phrase “In God We Trust” as the national motto and “under God” in the Pledge of Allegiance because, according to them, these are such general expressions that they exclude no religion.
In this manner, nonpreferentialists agree with the argument made by separationists that the government must be “neutral” with regards to religion — but they modify it by saying that it means that the government must aid religion neutrally and can be partisan when it comes to the difference between religion and irreligion. In practice, this means a “benevolent” neutrality which involves supporting religion whenever religious groups request.
Nonpreferentialism has gained ground in legal circles over the last twenty years and it has been endorsed by a number of judges across the country, including the Chief Justice of the Supreme Court, William Rehnquist. In his dissenting opinion in the 1985 school prayer case Wallace v. Jaffree, he wrote that “Nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion.”
Not all judges, however, have been swayed by the non-preferentialist position. In the Lee v. Weisman decision of 1991, Justice Souter wrote:
- In many contexts, including this one, nonpreferentialism requires some distinction between sectarian religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster. Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.
Souter's comments here fit in with the idea that separating church and state means, at its heart, separating religious from secular authority. Government bureaucrats, elected politicians, and judges simply don't have the authority to intrude on religious matters — in part because being part of the government does not confer competency on religion, theology, etc.
