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Abstract

Ultimately, because true neutrality is not possible, nearly all government interaction with religion is to some degree friendly or hostile. One could argue, therefore, that government interaction with religion is inherently friendly or hostile in nature. As a consequence, establishing neutrality as the ideal misses the mark and has produced a swinging pendulum in the Supreme Court’s jurisprudence. At one end of its arc the pendulum produces hostility towards religion and at the other end of the arc it produces friendliness towards religion. This is reflected in case law and in both early and modern government practices. Ultimately, the pendulum phenomenon must be brought to an end as it undermines uniformity, judicial economy, and societal stability. Because government interaction with religion is generally friendly or hostile in nature, the question then becomes whether to adopt a friendly or hostile approach. Of the two, for a myriad of reasons, it is better to adopt a friendly approach. Nonpreferentialism represents the ideal friendly approach. This is true for four reasons. First, nonpreferentialism does not require neutrality between religion and irreligion, which is more alighted with the original understanding of the Religious Clauses. Second, it is more consistent with the text of the Religion Clauses as the clauses themselves do not mandate government neutrality towards religion. Third, it would allow for nonpreferential aid to religious institutions, which perform many important social services. Finally, as Alexis de Tocqueville indicates, religion encourages morality. It is prudent to adopt a friendly approach, therefore, because such encouragement is key in producing government stability and longevity.

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