1. Jeremy Waldron defines “perfectionism” as “the view that legislators and officials may consider what is good and valuable in life and what is ignoble and depraved when drafting the laws and setting the framework for social and political relationships” (Waldron, , “Autonomy and Perfectionism in Raz's The Morality of Freedom,” Southern Cailifornia Law Review 62 [1989]: 1102)Google Scholar. Waldron's definition is useful but overbroad, since it is abstract enough to encompass Benthamite utilitarianism, which relies on a notoriously crude and subjectivist view of what is good and valuable. (Thanks to John Deigh for pointing this out.) George Sher has defined the term with more precision, as any theory that denies that all value is traceable either to people's actual preferences or to the preferences they would exhibit under (more) ideal conditions. Sher's definition “coincides roughly” with the conjuction of views that “equate the good with the advanced development, or perfection, of certain characteristically human capacities,” and views that hold that “some traits, activities, or forms of life are intrinsically better (or more ‘perfect’) than others” (Sher, , Beyond Neutrality: Perfectionism and Politics [Cambridge: Cambridge University Press, 1997], pp. 8–10)CrossRefGoogle Scholar. Sher's definition is also incomplete, since one could accept these propositions about value while denying that the state appropriately can make them the basis of its acts. A precise definition would conjoin Waldron with Sher: perfectionism is the view that some ways of life are intrinsically better than others, and that the state may appropriately act to promote these better ways of life. This is what I mean whenever I use the term “perfectionism” in this paper. “Antiperfectionism” refers to the rejection of perfectionism.

2. Rawls, John, A Theory of Justice (Cambridge, MA: Belknap Press of Harvard University, 1971, p. 94)Google Scholar; for similar claims, see Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 33, 312Google Scholar; Ackerman, Bruce, Social Justice in the Liberal State (New Haven: Yale University Press, 1980), p. 11Google Scholar; Dworkin, Ronald, “Liberalism,” in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), p. 191Google Scholar; Larmore, Charles E., Patterns of Moral Complexity (Cambridge: Cambridge University Press, 1987), p. 44CrossRefGoogle Scholar. Rawls has more recently expressly endorsed the idea of neutrality, citing with approval writings of Dworkin and Larmore. See Rawls, , Political Liberalism (New York: Columbia University Press, 1993), pp. 190–95Google Scholar. At the same time, however, Rawls evidently does not endorse it in as strong a sense as these writers do. See Rawls, , Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2001), p. 91 n. 13Google Scholar (arguing that basing all legislative decisions solely on purely political values is “neither attainable nor desirable”). See generally Sheppard, Steve, “The Perfectionisms of John Rawls,” Canadian Journal of Law and Jurisprudence 11 (1998): 383–415CrossRefGoogle Scholar.

3. See Rawls, , Theory of Justice, p. 206 n., 220Google Scholar; Ackerman, Bruce, Reconstructing American Law (Cambridge, MA: Harvard University Press, 1984), p. 99Google Scholar; Larmore, Charles, The Morals of Modernity (Cambridge: Cambridge University Press, 1996), p. 144CrossRefGoogle Scholar.

4. See, e.g., Everson v. Bd. Of Educ, 330 U.S. 1, 24 (1947) (Jackson, J., dissenting)Google Scholar; Abington School Dist. v. Schempp, 374 U.S. 203, 222, 226 (1963)Google Scholar; Walz, v. Tax Comm'n, 397 U.S. 664, 676 (1970)Google Scholar; and Jaffree, Wallace v., 472 U.S. 38, 60 (1985)Google Scholar.

5. Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom (New York: Oxford University Press, 1995), p. 77Google Scholar.

6. See Hunter, James Davison, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991)Google Scholar.

7. See, e.g., Galston, William A., Liberal Purposes: Goods, Virtues, and Diversity in the Liberal State (Cambridge: Cambridge University Press, 1991), pp. 92–94CrossRefGoogle Scholar.

8. See, e.g., Aguillard, Edwards v., 482 U.S. 578, 616–18 (1987) (Scalia, J., dissenting)Google Scholar; McConnell, Michael W., “Religious Freedom at a Crossroads,” University of Chicago Law Review 59 (1992): 131CrossRefGoogle Scholar.

9. Notable exceptions are Ackerman, Bruce, “Neutralities,” in Liberalism and the Good, ed. Douglass, R. Bruce et al. (New York: Routledge, 1990), p. 29–43Google Scholar; Ackerman, Bruce, “Why Dialogue?” Journal of Philosophy 86 (1989): 5–22CrossRefGoogle Scholar; and Larmore, , Morals of Modernity, pp. 121–74Google Scholar. None of these is a fully developed response to the emerging critique, a critique that has recently been sharpened in Sher, Beyond Neutrality. The present paper offers reasons for rejecting the strong neutrality propounded by the antiperfectionists, but does not address every argument made by them. I incorporate by reference Sher's exhaustive critique. On the other hand, I argue here that neutrality has a persistent appeal that Sher's objections cannot dispel.

10. Smith, , Foreordained Failure, p. 96Google Scholar.

11. Hurka, Thomas, Book Review: Sher, Beyond Neutrality, Ethics 109 (1998): 190Google Scholar.

12. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 220Google Scholar. Raz does not make the same point about neutrality, instead arguing that neutrality, in the form in which antiperfectionists have advocated it, is not an attractive political ideal. See pp. 110–62. He implicitly acknowledges that more modest forms of neutrality may sometimes be appropriate, see pp. 120–22, but his attention is focused elsewhere.

13. Westen, Peter, “The Empty Idea of Equality,” Harvard Law Review 95 (1982): 547CrossRefGoogle Scholar. Other scholars have noted that Westen's deconstruction of “equality” also applies to the “neutrality” that is frequently invoked in religious freedom disputes. Laycock, Douglas, “Formal, Substantive, and Disaggregated Neutrality Toward Religion,” DePaul Law Review 39 (1990): 995Google Scholar; Smith, , Foreordained Failure, pp. 151–52Google Scholar; see also Valauri, John T., “The Concept of Neutrality in Establishment Clause Doctrine,” University of Pittsburgh Law Review 48 (1986): 83–151Google Scholar (not relying on Westen, but making a similar objection to neutrality).

14. Westen made this claim at several points in his 1982 article. See “The Empty Idea of Equality,” pp. 537, 542, 596Google Scholar. It was not repeated in his later book, but he did say there that his thesis would deprive equality of much of its rhetorical force. See Westen, Peter, Speaking of Equality (Princeton: Princeton University Press, 1990), pp. 287–88CrossRefGoogle Scholar.

15. See Karst, Kenneth, “Why Equality Matters,” Georgia Law Review 17 (1983): 248Google Scholar.

16. See generally Koppelman, Andrew, Antidiscrimination Law and Social Equality (New Haven: Yale University Press, 1996)Google Scholar.

17. The defense of neutrality and equality offered here applies with equal force to the idea of fairness, which, Stanley Fish has recently pointed out, is also so vague that it may appear empty. Fish makes a point analogous to Weston's by arguing that fairness “will have different meanings in relation to different assumptions and background conditions.” Fish, Stanley, “Introduction: ‘That's Not Fair,’” in There's No Such Thing as Free Speech and It's a Good Thing, Too (New York: Oxford University Press, 1994), p. 4Google Scholar; see also Fish, Stanley, “Mission Impossible: Settling the Just Bounds Between Church and State,” Columbia Law Review 97 (1997): 2255–2333CrossRefGoogle Scholar. Fish is correct that it is impossible for any system of distribution to avoid some unfairness, and that absolute fairness is analytically impossible. It does not follow that the idea of fairness should be abandoned, or that claims of unfairness should be given no weight.

18. The dictionary definition of “fluid” applies here: “A substance that exists, or is regarded as existing, as a continuum characterized by low resistance to flow and the tendency to assume the shape of the container.” American Heritage Dictionary of the English Language (1976), p. 505Google Scholar. By using this term, I do not however mean to imply that the version of neutrality that you adopt ought to shift over time. To the extent that your normative commitments and empirical beliefs remain stable, your neutrality will remain stable. Thus, for example, the concluding pages of this paper offer an account of neutrality toward religion that is intended to remain stable.

19. See Galston, , Liberal Purposes, pp. 100–101Google Scholar.

20. Berlin, Isaiah, “Two Concepts of Liberty,” in Four Essays on Liberty (New York: Oxford University Press, 1969), p. 168Google Scholar.

21. With each of these arguments, it is possible that the strength of the argument for neutrality may be greater for procedure than for aim, or vice versa. Thus, for example, a moral pluralist might think that sound deliberation requires neutrality of procedure, but that, because a little political hypocrisy is sometimes useful (say, professing a piety one does not feel), violations of neutrality of aim are less troubling.

22. Locke, John, A Letter Concerning Toleration, trans. Popple, William (New York: Library of Liberal Arts, 1950), p. 31Google Scholar.

23. Story, Joseph, Commentaries on the Constitution, §1871 at 728, §1868 at 726 (1833)Google Scholar.

24. The same point could be made about the Catholic natural law theorists who are among the most persistent critics of antiperfectionism. John Finnis, for instance, thinks that natural law theory “neither asserts nor entails that the members of a community must all have the same values or objectives,” nor that “man is made to flourish in only one way or for only one purpose,” nor that “only one reasonable life-plan or determinable set of reasonable life-plans” exist. Finnis, John M., Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), pp. 156, 113, 155Google Scholar. He recognizes that no one can possibly realize all the human goods in a single life. See, e.g., p. 93. Similarly, Robert P. George writes that “Isaiah Berlin is probably correct to criticize the tradition [of Aristotle and Aquinas] for failing to understand the diversity of basic forms of good and the range of valid pluralism” (George, , Making Men Moral: Civil Liberties and Public Morality [Oxford: Clarendon Press, 1993], p. 38)Google Scholar. Because of the plurality of human goods, legislators “can legitimately proscribe only the fairly small number of acts and practices that are incompatible with any morally good life.” Id. at 40. These positions do not prevent these authors from concluding, for example, that homosexual conduct is wrong and should be discouraged by the law. Their position is unpersuasive, see Koppelman, Andrew, The Gay Rights Question in Contemporary American Law (Chicago: University of Chicago Press, 2002), pp. 72–93CrossRefGoogle Scholar; Koppelman, Andrew, “Is Marriage Inherently Heterosexual?” American Journal of Jurisprudence 42 (1997): 51–95, but it is not inconsistentCrossRefGoogle Scholar.

25. Locke, , Letter Concerning Toleration, p. 18; cf. pp. 34–36Google Scholar.

26. See Cruz, David B., “Controlling Desires: Sexual Orientation Conversion and the Limits of Knowledge and Law,” Southern California Law Review 72 (1999): 1297–1400Google Scholar.

27. Locke, , Letter Concerning Toleration, p. 32Google Scholar.

28. Ackerman, , Social Justice in the Liberal State, p. 366Google Scholar.

29. Ibid., pp. 361–65.

30. Ibid., pp. 368–69.

31. See Sher, , Beyond Neutrality, pp. 140–55Google Scholar.

32. Locke, , Letter Concerning Toleration, p. 57Google Scholar.

33. Larmore, , Morals of Modernity, p. 123Google Scholar.

34. See Rawls, , Political Liberalism p.192 and n24Google Scholar.

35. See ibid., pp. xvi–xviii.

36. See Holmes, Stephen, “Gag Rules or the Politics of Omission,” in Constitutionalism and Democracy, ed. Elster, J. and Slagstad, R. (Cambridge: Cambridge University Press, 1988), p. 21Google Scholar.

37. This is the premise of Justice O'Connor's interpretation of the establishment clause, which prohibits government endorsement of religion. See, e.g., Donnelly, Lynch v., 465 U.S. 668, 687–88 (1984)Google Scholar (O'Connor J., concurring). On the limitations of O'Connor's approach, see Diamond, Shari Seidman and Koppelman, Andrew, “Measured Endorsement,” Maryland Law Review 60 (2001): 717–26Google Scholar.

38. Larmore, , Patterns of Moral Complexity, p. 67Google Scholar; see also p. 55.

39. A particularly striking failure to notice this is Bruce Ackerman's claim that humanists ought, for the sake of civil peace, to renounce public support for the arts. Ackerman, Bruce, Should Opera Be Subsidized?, 46 Dissent 89–91 (Summer 1999)Google Scholar. Most theists and most atheists might agree that the market should not be the sole arbiter of which cultural forms flourish. Justice is not the only possible object of overlapping consensus.

40. See, e.g., Dworkin, Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), pp. 272–77Google Scholar.

41. See Dworkin, Gerald, “Equal Respect and the Enforcement of Morality,” Social Philosophy and Policy 7 (1990): 180–193CrossRefGoogle Scholar.

42. See especially Sher, , Beyond NeutralityGoogle Scholar, and George, , Making Men MoralGoogle Scholar.

43. For a catalogue of the ways in which this occurs, see Sunstein, Cass R. and Thaler, Richard H., “Libertarian Paternalism Is Not an Oxymoron,” University of Chicago Law Review 70 (2003): 1159–1202CrossRefGoogle Scholar.

44. Sher, , Beyond Neutrality, p. 73Google Scholar.

45. See Korsgaard, Christine M., “Taking the Law into Our Own Hands: Kant on the Right to Revolution,” in Reclaiming the History of Ethics: Essays for John Rawls, ed. Reath, Andrews, Herman, Barbara, and Korsgaard, Christine M. (Cambridge: Cambridge University Press, 1997), pp. 297–328CrossRefGoogle Scholar and especially 319–320.

46. Laden, Anthony Simon, “The House That Jack Built: Thirty Years of Reading Rawls,” Ethics 113 (2003): 383–84CrossRefGoogle Scholar.

47. Arkansas, Epperson v., 393 U.S. 97, 104 (1968)Google Scholar.

48. My descriptive claim, that this accurately describes the level of abstraction at which the First Amendment is now understood to mandate neutrality, is obviously beyond the scope of this paper, but I have elaborated and defended it elsewhere. See Koppelman, Andrew, “Secular Purpose,” Virginia Law Review 88 (2002): 87–166CrossRefGoogle Scholar; Koppelman, Andrew, “No Expressly Religious Orthodoxy: A response to Steven D. Smith,” Chicago-Kent Law Review 78 (2003): 729–738Google Scholar.

49. See Koppelman, Andrew, “Does Obscenity Cause Moral Harm?” Columbia Law Review 105 (forthcoming 2005)Google Scholar.

50. See Wolfe, Alan, One Nation, After All (New York: Viking, 1999)Google Scholar; Fiorina, Morris et al. , Culture War? The Myth of a Polarized America (2004)Google Scholar.

51. This is noted by Smith, , Foreordained Failure, p. 78Google Scholar.