Before we further investigate the possible meanings of neutrality by turning to the founding discourses and subsequent political and social developments in Chapter 6, the role of history in constitutional interpretation more generally, and in analyzing religion–state relations specifically, deserves some thought. As evidenced by the courts’ own language seen in the previous chapter, historical arguments on the original understanding, original intent, or originally considered policy goals play an important role in the decisions of the US Supreme Court. This chapter demonstrates that the role of history appears to be considerably less controversial in German constitutional law than in the United States. In the United States, different uses of history must be distinguished; while historical arguments feature prominently in the discussions surrounding originalist methods of interpretation, they are also used by nonoriginalists in some contexts. Indeed, the Establishment Clause in particular has long been the subject of competing historical accounts.

History in German constitutional interpretation

Constitutional interpretation in Germany generally employs the canons of statutory interpretation. Historical inquiry only plays a subordinate role in German constitutional interpretation; it is generally used to reinforce a result found by employing the other canons of interpretation: textual, systematic, and teleological. Donald Kommers summarizes the approaches as follows:

The interpretory emphasis is placed on identifying the “objective” meaning; in the process of interpretation “the text itself, its legal context, and, especially, teleological arguments based on contemporaneous notions of rule-specific or overarching legal values, may legitimately be considered in order to affirm, broaden, or narrow the historical understanding of the reach of the provision.”

Chapter 1 concluded that comparison can be beneficial; Chapter 2 surveyed the larger societal context in which to place the comparison; this chapter establishes the parameters of the comparison itself. Before proceeding in the analysis of neutrality in religion–state relations, the mode of inquiry deserves some thought. The scope of what follows is deliberately limited: the following analysis will focus on only two countries, Germany and the United States, and only one concept, state neutrality, used in only one context, namely to describe the relationship between religion and the state in constitutional terms. The goal of limiting this study in such a manner is to capitalize on the characteristics recognized in social science as the “particular properties” of qualitative research, “depth, richness, and process tracing.”

It seems that the real challenges of the comparative constitutional endeavor have largely been obscured in the current debate over whether to engage in comparison at all. The majority of political objections outlined in Chapter 1 can be refuted, but the justified legal concerns must be addressed by careful comparative analysis. The question that remains after a survey of the current debate is: where does the comparative endeavor go from here? If the goal of comparative constitutional law is “to explain, rather than merely describe,” those engaging in constitutional comparison can learn something from the social sciences, where “validation or refutation of propositions about the world is common to all core quantitative and qualitative, ‘large-N’ and ‘small-N’, behavioralist and historical-interpretive approaches to social inquiry used in disciplines such as sociology and political science, let alone in generally more positivist disciplines such as social psychology and economics.” What follows, in short, is a small-N study of what two constitutional courts mean when they interpret the respective constitutional frameworks of religion–state relations to prescribe a posture of “neutrality.” The hypothesis may be framed as follows: “neutrality” as employed by the US Supreme Court means “less distance” between religion and state, whereas “neutrality” as employed by the German Federal Constitutional Court means “more distance” between religion and state. Starting from opposite ends of the church–state spectrum it appears that both courts are moving toward neutrality in their interpretory practice. “More” and “less” distance is measured in historical perspective against the previously established distance between religion and state in each country’s constitutional jurisprudence. Thus, there appears to be a trend of convergence while the trajectories of development underlying this trend point in the opposite direction.

The year 2005 marked a milestone in the history of the US Supreme Court. With the death of Chief Justice William H. Rehnquist, an era in Court chronology that had lasted since 1986 – the Rehnquist Court – ended, and with the appointment of Chief Justice John G. Roberts, Jr., a new one began. Another momentous change occurred that same year. In the summer of 2005, Justice Sandra Day O’Connor, the first ever woman to serve on the Court, announced her retirement from the bench. Though Chief Justice Roberts had initially been nominated for Justice O’Connor’s seat, the unexpected passing of Chief Justice Rehnquist led to a change in plans. Instead, Justice Samuel A. Alito succeeded Justice O’Connor.

Justice O’Connor had long been considered a particularly important voice on the Court in the area of religion clause jurisprudence, and in 2005, just prior to her retirement, two landmark decisions involving displays of the Ten Commandments on public property were handed down. Indicative of the disagreement on Establishment Clause issues, the two cases spawned a total of ten opinions from the nine justices, resulting in what one observer called “a dizzying array of widely divergent interpretations of the Establishment Clause.” In one of those two cases, Justice O’Connor made the above-quoted connection between religion–state relations and comparative constitutional law.

The development outlined thus far leaves us with one final task: the search for the meaning of state neutrality. But, as many have noted before me, neutrality is an elusive concept. Different, at times even competing, ideas of religion–state relations bear the neutrality label. In light of the previously examined circumstances, how can neutrality be best approximated in comparative perspective? Several common themes are discussed in the United States and Germany, and this chapter addresses them in turn. Elucidating these themes in comparative perspective can advance our understanding of the substantive content, and possible utility, of the concept of state neutrality in the constitutional law of religion–state relations.

First, various concepts of neutrality can be identified. In the scholarship of both countries, a generally positive and a generally (comparatively more) negative alternative of neutrality are discussed. These headings already indicate that sometimes, scholarship in the two countries uses the same or similar terminology to describe different legal phenomena; sometimes it discusses parallel substantive issues under the same, sometimes under different, headings. In light of the discussion of comparative constitutional law in Chapter 1, this should not be surprising. The inquiry into the meaning of neutrality that follows shows how similar the application is despite the differences in the underlying constitutional framework.