The future of neutrality in comparative perspective

This comparative analysis of the constitutional law of religion–state relations in the United States and Germany, focusing on the principle of state neutrality, has demonstrated how comparative constitutional inquiry may inform domestic constitutional deliberations. Neutrality, a notoriously ambiguous concept, is a shared feature of the constitutional law of religion–state relations in both constitutional systems. Both share as key features a roughly similar set of constitutional provisions: one set of provisions concerning religious free exercise and one set of provisions concerning nonestablishment. Having identified a common general direction toward neutrality, sufficient room for the individual interpretation of neutrality remains. Thus, neutrality does not mean the same in both instances, but useful insights can be gained by inquiring into the substantive content of the neutrality principle elsewhere.

As demonstrated, the discussion of state neutrality in religion–state relations breaks down into largely parallel themes. The starting points might be identified as polar opposites: a strong notion of separation in the United States, and an extensive system of cooperation in Germany. In the United States, neutrality as it is used today means “less distance” between church and state while in Germany, conversely, neutrality means “more distance” between church and state.