The myth of government neutrality

One of the biggest myths many in our nation hold sacred is the idea that the government is neutral toward all viewpoints and worldviews. It isn’t. And the recent conflict pitting Disney against the Florida legislature demonstrates how, on some very important questions of morality, neutrality is not only impossible but also at odds with the ideals of a just political community.

It’s important to consider the claim of neutrality itself. A famous phrase from a 1943 U.S. Supreme Court decision, West Virginia v. Barnette, gets breathlessly invoked by civil libertarians as though it were American orthodoxy. In the opinion, Justice Robert Jackson wrote, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

Such a rhetorical flourish might sound impressive, but it cannot be taken to its logical conclusion without contradiction or absurdity. Any proposed neutrality of the sort just shows how nonneutral government actually is. A commitment to noncommitment is itself a commitment, and a hypothetical moral agnosticism is a commitment in its own right. But neutrality cannot be realized in an absolute sense because—thankfully—we have laws against murder and theft. No law should be seriously entertained by a government that applauded, furthered, or allowed murder or robbery under the guise of “neutrality.” The government is decidedly not neutral about murder and theft, or treason for that matter.

Government neutrality only works in those areas where neutrality is possible. Once viewpoints affect behavior and policy, neutrality is subject to competing interests. The government cannot be neutral about the foundational elements necessary for stable social order. At the level of first principles, the question at root in disputes over viewpoint diversity is whether the topic at the center of the debate is so pivotal that absolute consensus is essential.

Justice Jackson’s absolutist rhetoric does not allow for the careful drawing of distinctions. And that brings us to the situation involving Disney in Florida. Last I checked, the government is not giving special privileges to white supremacist groups to set up amusement parks. But it did for Disney, meaning there’s a distinction between the goods that Disney provides versus the evil that white supremacy purveys. Governments have to make choices. Sure, you can be a racist and not go to jail, but if you act on racist beliefs publicly, there are limits to your liberty. And that’s good, because the government has decided it cannot be neutral where human dignity is concerned.

Government is comprised of people who are assigned to make these distinctions. Government is tasked with making critical distinctions between good and evil, and that is entirely in keeping with the purpose of government as found in the Bible. Government is “to punish those who do evil and to praise those who do good” (1 Peter 2:14). It seems that Florida’s legislators think the goods that Disney offers society have changed, and their value to the common good is less legitimate—or even nefarious—depending on the company’s ideological commitments. If so, it is fair to consider whether Disney deserves special tax privileges.

Neutrality is an instrumental good only, never an ultimate good. It can only be taken so far. Government cannot be neutral on many issues. Indeed, I do not want government to be neutral about protecting children. But establishing that there are moral goods that government is designed to recognize conflicts with the so-called neutrality principle. That is expected because government is an imperfect project of balancing trade-offs weighed against competing interests. Neutrality, as pure proceduralists define it, is so utterly constraining that it leads to sanctioning moral absurdity that we know is unsustainable. Lines must be drawn.

Call me old-fashioned, but it is entirely legitimate for the government not to be neutral about insidious contagions like gender ideology. Florida is no longer rewarding Disney for providing an economic benefit because the benefit is far less clear, now that we know more about Disney’s moral agenda. Moreover, if Disney wants to wage a war of corporate power to undermine democracy and inject perversity into our children’s entertainment platforms, don’t be surprised when legislators consider other interests alongside a corporation’s freedom of speech. Disney should make cartoons, provide family fun, and stay out of politics.

Government is not a nameless, faceless enterprise. It comprises people with consciences who are elected by citizens with consciences. Telling the “government” to be neutral where it cannot not be neutral is to effectively rule out the notion that citizens would elect individuals to represent them and legislate according to their values. That is at odds with our whole concept of representative democracy.

Disney is free to express its opinions. It is free to express even deranged opinions. But it is not entitled to special tax privileges.