Gedicks again, on the claim that the Establishment Clause requires the government to remain neutral between “religion and irreligion” and between “belief and unbelief”:

“This dictum,  present at the birth  of contemporary  Establishment Clause  doctrine inthe Everson case in  1947, is my personal candidate for the most frequently invoked incoherent constitutional  rule.  I mean,  really,  what sense  can one possibly make ofa rule that requires  the government to remain  neutral  between a  proposition and its negation?  One may agree or disagree about what it could mean to be ‘neutral’ between various  religions, but it is at least possible to have a sensible conversation  about this.  By contrast, there has always been something  decidedly weird about the requirement that the government be neutral between religion and nonreligion,  or belief and unbelief.  Indeed, the requirement seems to constitute empirical proof that even the dumbest things  can start to make  sense if they’re  repeated  often enough.”

He elaborates, at length and amusingly:

“Consider then what government  neutrality might mean in the context of professiona lbaseball.  It is, of course, completely sensible to require that Congress  be neutral  between  the  Red Sox  and  the  Yankees,  or that  the California  Legislature  be  neutralbetween  the A’s, the  Angels,  the Dodgers,  the  Giants,  and the  Padres,  or, indeed,that Congress and all of the state legislatures be neutral with respect to all thirty major league baseball teams.  But what could it possibly  mean for Congress and the  statesto be neutral  as between  baseball  and ‘not-baseball’?

“For starters, I suppose, this would mean that baseball could not be treated any differently than not-baseball.  So, Congress could not grant an exemption  from the antitrust laws to baseball unless not-baseball  got one, too.  It would, therefore,  be crucialto ascertain the referent of not-baseball.  Would it be the National Basketball  Association?  Well, it is clearly not-baseball.  The American  Ballet Theatre?  Also not-baseball. Fly-fishing?  Watching  public television?  Cutting my lawn?  All not-baseball.  The Southern  Cal  defensive  team  against  Vince  Young in the  2006  Rose Bowl?  Still not-baseball  (and also  not-defense).

“Logically, ‘not-baseball’ encompasses everything  except  ’baseball.’  Accordingly, neutrality between baseball  and not-baseball requires that every activity in the United States be exempted, like baseball, from the anti-trust laws and more generally, that every activity in the United States be treated  the same  as baseball.  Not only is this nonsensical  from a policy  standpoint, it is nonsensical  from any standpoint.”