INTRODUCTION :: Some of the earliest American colonies began as havens for religious believers. Religious institutions operated nearly the entire educational system in eighteenth-century America. The first liberty mentioned in the Bill of Rights is religious freedom. During the eighteenth century, Congress consistently permitted the performance of invocations and religious services in the United States Capitol.
Absolutely no historical evidence suggests that the framers of the First Amendment intended religion to be treated the same as any secular institution or activity. Yet, under the neutrality doctrine currently employed in religion cases, that is exactly how the courts are interpreting the First Amendment. Neutrality has become the preferred approach for dealing with cases involving the Establishment Clause. Given the confusion and contradictions of previous Establishment Clause doctrines, neutrality seems like a long-overdue solution. Yet, while neutrality carries the appeal of simplicity, it does not express the intended spirit of the First Amendment.
Though still a fairly recent doctrine, neutrality has already begun to create a morass of complicated rules. Ensuring that religious groups are not treated differently than secular groups, despite their obvious differences, is no easy task. Contrary to the neutrality doctrine, which seeks to prevent the government from showing any favoritism at all to religion in general, the Establishment Clause model presented in this Article does not forbid the government from conferring special aid or benefits upon religion in general, as long as the aid or benefits are given without preference to any religious denominations. As history demonstrates, the Establishment Clause aims to keep the government from singling out certain religious sects for preferential treatment, but it does not prevent the government from showing favoritism to religion in general. Furthermore, this nonpreferential aid model will not only better fulfill the spirit of the First Amendment, but also will avoid all the complicated and formalistic rules required by the neutrality doctrine.
November 2014, Vol. 66, No. 6
Lily Kahng, The Taxation of Intellectual Capital