Religion Clauses in Interaction
RELIGION CLAUSES IN INTERACTION
There has been a long-term tension between the first amendment's two religion clauses, one forbidding government to promote or "establish" religion, the other forbidding government to abridge the "free exercise" of religion. On the one hand, under the much-criticized (but still formally governing) lemon test, any government action whose purpose or primary effect is to aid religion violates the establishment clause. On the other hand, under the Sherbert–Yoder test (the rule for a quarter century prior to 1990), the free exercise clause periodically required the state to accommodate religion.
Unfortunately, the Supreme Court's few direct confrontations with the problem before the mid-1980s had been unsatisfying. It was not until Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987) that the Court addressed the issue at any length. In upholding Congress's exemption of religious groups from a general statutory ban on religious discrimination in employment, the Court simply announced that "under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." This conclusory analysis prompted Justice sandra day o'connor, who concurred separately, to accurately observe:
On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an "accommodation" of free exercise rights.
Several major developments during the past decade have produced some thoughtful approaches to resolving the conflict between the clauses. First, the highly controversial ruling in employment division, department of human resources of oregon v. smith (1990) held that the free exercise clause affords no right to a religious exemption from a neutral law (i.e., one of general applicability) even though it imposes a substantial burden on religious practice. Abandoning the Sherbert–Yoder test—which had required exemptions from generally applicable regulations that substantially burdened religious exercise, unless there was a "compelling interest" for not doing so and the law was the "least restrictive means" for accomplishing that interest—the free exercise clause was reduced to prohibiting only those government actions that single out one or all religions for adverse treatment. By no longer demanding special treatment for religion, the free exercise clause's incompatibility with the establishment clause's "no aid" edict was largely eliminated. Still, the question remains: If government voluntarily exempts religion from generally burdensome regulations does this violate the establishment clause?
The other important efforts have involved the Court's implicit renunciation of the Lemon test under the establishment clause in favor of competing approaches, all of which speak to the interaction between the religion clauses. Some Justices have emphasized neutrality (which prevailed for the free exercise clause in Smith), urging that general policies that happen to benefit religion should not violate the establishment clause. But a majority of the Court has not unqualifiedly accepted that result for all state programs, and even the neutrality advocates have been unwilling to completely adhere to this view, seemingly approving (in Smith) gratuitous state exceptions for religion from burdensome laws.
The test that appears to have the widest support (although not yet formally adopted as a replacement for Lemon) finds that establishment clause violations should depend on whether a "reasonable" (or "objective") observer would perceive the challenged government action as an endorsement of religion. This seeks to ensure equal standing within the political community for adherents of all (or no) religious faiths. Specifically on the question of the conflict between the religion clauses, O'Connor, the endorsement test's creator, has explained that in determining whether special government immunities for religion convey a message of endorsement, "courts should assume that the 'objective observer' is acquainted with the Free Exercise Clause and the values it promotes. Thus individual perceptions, or resentment that a religious observer is exempted from a particular government requirement, would be entitled to little weight if the Free Exercise Clause strongly supported the exemption."
All church–state problems should be resolved by recourse to a broad principle that accounts for the major function of both religion clauses: protection of religious liberty. The standard to replace the Lemon test that was most promising in achieving this goal was Justice anthony m. kennedy's "coercion" test. Threats to religious freedom may arise in a number of ways—by coercing religious beliefs either directly or indirectly, or by strongly influencing religious choice—and an important illustration of coercion is government compelled financial support, that is, use of tax-raised funds for religious activities.
Jesse H. Choper
Choper, Jesse H. 1995 Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: University of Chicago Press.
Lupu, Ira C. 1991 Reconstructing the Establishment Clause: The Case Against Discretionary Accommodation of Religion. University of Pennsylvania Law Review 140:555–612.
Mc Connell, Michael W. 1992 Accommodation of Religion: An Update and a Response to the Critics. George Washington Law Review 60:685–742.