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Abstract:
While questions concerning the constitutionality of discretionary religious accommodations are certainly important, the familiar charge that the U.S. Supreme Court's cases are confusing and even contradictory is exaggerated. Characterizations of this sort are a proxy for what is really a disagreement with the Court's case law in some fundamental respect. The Supreme Court's approach to religious accommodations can be regularized and in many respects reduced to a series of straightforward rules. This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.

It is a categorical mistake to view discretionary religious accommodations as cases about government support for religion. Rather, such accommodations are government support for religious freedom¿something permitted by the First Amendment, indeed the First Amendment is the leading example of such a law. Just as the First Amendment is pro-freedom of speech and pro-freedom of the press, it is pro-religious freedom. And that is as true of the Establishment Clause as it is of the Free Exercise Clause. To be sure, in the course of crafting a discretionary accommodation mistakes can be made. This is why this article identifies five rules in the case law with respect to how the government cannot proceed as it drafts its accommodation. But these rules are about improper means to an otherwise legitimate end. When a legislature avoids these improper means, a discretionary accommodation that seeks to enlarge religious freedom will not be found to violate the Establishment Clause.

first amendment, freedom of religion, church and state, establishment clause, religious accommodations, religion clause

Abstract:
Sixty years ago the U.S. Supreme Court handed down Everson v. Board of Education of Ewing Township, which for the first time incorporated the Establishment Clause through the Fourteenth Amendment and made it binding on state and local governments. The case marks the beginning of the Court's modern era with respect to church-state relations. In Everson, the Justices said that the restraints on federal power represented by the Establishment Clause were the same as the ideas that emerged from the disestablishment struggles in the several states, with special attention to the Virginia experience. The disestablishment effort in the states, which took place from 1776 to 1833, involved nine of the original 13 states, as well as Vermont and Maine. Despite what is commonly believed, the push for disestablishment was not at all influenced by the First Amendment. The reason is simple enough: it was widely understood that the Bill of Rights was not binding on the states, and thus the amendment was of no use against those states that were maintaining an establishment by law. Disestablishment — most importantly the cutting off of tax assessments for the Anglican Church in the South and the Congregational Church in the New England states — was the first step in the implementation of a larger idea that was then called (and spelled) voluntaryism. Voluntaryism is where religion is supported voluntarily by those in the private sector — which is to say, not by the government. While the principle of voluntaryism was increasingly being embraced in the new nation, once disestablishment was completed there remained a gap between the actual practice of voluntaryism and the larger principle when it came to government support of God language and other religious symbols and observances agreeable to the dominant Protestants. That is where matters stood, more or less, until the Everson Court in 1947 uncovered a near dormant Establishment Clause, and put it to the task of social clearing in the interest of a government that is to be neutral with respect to religion. With the decision in Everson, for the first time in the nation's history the daily, retail-level interactions between church and state were now a matter of federal constitutional law and thereby subject to federal judicial review. We had, so to speak, the nationalization of American socio-religious culture. It was not long before teacher-led prayer in public schools, as well as daily devotions from the King James Bible to begin the classroom day, all agreeable to nondenominational Protestantism, fell under the Court's review. The changes downstream of Everson were painful for many white Protestants who held the mantle of cultural authority. Even now as the logic of voluntaryism continues to be worked out with respect to public displays of the Ten Commandments or the insertion of under God in the Pledge of Allegiance, the American civil polity is divided along interesting lines with religious people coming down on one side or the other of these cases depending on their allegiance to the voluntary way. Because voluntaryism takes power away from government so that its officials and its laws simply have no cognizance (James Madison's phrase) with respect to certain specifically religious matters, the modern Establishment Clause is about securing religious freedom. However, it is the sort of freedom that is consequential to limiting the power delegated to the government. And, while it is said that voluntaryism means that government is neutral as to religion, this is correct if properly understood. In an absolute sense, there is no such thing as a neutral state. Nor is that required. Just as the very text of the First Amendment is pro-freedom of speech and pro-freedom of the press, in like manner the two religion clauses are, each in their own way, pro-religious freedom. The Everson decision took up the Establishment Clause, very much a late bloomer, and in giving the clause meaning drawn from the period of disestablishment in the states the Court set for the federal judiciary an ambitious course these last 60 years, one whose dispute over direction gives no evidence of abating soon.

Everson, church-state

Abstract:
Consistent with its fumbling of late when dealing with cases involving religion, the U.S. Supreme Court has taken to reciting the metaphor of play in the joints between the Religion Clauses. This manner of framing the issue before the Court presumes that the Free Exercise and Establishment Clauses run in opposing directions, and indeed will often conflict. It then becomes the Court's task, as it sees it, to determine if the law in question falls safely in the narrows where there is space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. The conception that the free-exercise and no-establishment texts are in frequent tension, and at times are in outright war with one another, is quite impossible. Each substantive clause in the first eight amendments to the Bill of Rights was designed to anticipate and negate the assumption of certain powers by the national government - a government already understood to be one of limited, enumerated powers. Thus, for example, the free-speech clause further limited national power and the free-press clause did so as well. These two negatives on power - speech and press - can overlap and thus reinforce one another but they cannot conflict. Simply put, it is logically impossible for two negations of a government's delegated power to conflict. Similarly, the free-exercise provision further restricted the nation's powers and no-establishment did likewise. These two negatives can overlap and thereby doubly deny the field of permissible governmental action, but they cannot conflict. To be sure, each clause in its own way works to protect religious freedom. And when circumstances are such that the scope of the clauses overlap, they necessarily complement rather than conflict with each other. However, the Court's imagining these two negations on governmental power as frequently clashing is at the conceptual level simply not possible.

Abstract:
This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will approach the establishment clause and the judiciary's role in policing government support for religion. The essay also demonstrates how what the Court terms a "generalized grievance" for which justiciability is denied unless Flast permits taxpayer standing, necessarily involves a claim where a structural clause of the Constitution is said to be violated rather than a rights-based claim. The above issues are all the more interesting because so far Hein is the only church-state case to come before the Supreme Court since the two newest justices, Chief Justice Roberts and Justice Alito, were appointed.

Abstract:
General federal employment nondiscrimination legislation permits religious organizations to take religion into account when making employment decisions. However, some federal social service programs have embedded in their authorizing legislation a nondiscrimination clause binding on recipients of program grants. And a few of these embedded clauses require that grantees (including religious grantees) not discriminate in employment on the basis of religion. This extended essay demonstrates how the Religious Freedom Restoration Act of 1993 overrides these employment nondiscrimination clauses when applied to faith-based social service grantees. Not only is this the conclusion of the U.S. Department of Justice in its policy announced in October 2007, but it is the necessary implication of both the plain text of RFRA and the Supreme Court's application of RFRA in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

Abstract:
In Everson v. Board of Education (1947), the Supreme Court elevated the events surrounding the disestablishment of the Anglican Church in Virginia during and soon after the American Revolution as a principal guide for the meaning of the Establishment Clause. The rule to come out of the Virginia experience is that support for religion should be voluntary thus, no active support by the government.

An in-depth examination of James Madison's Memorial and Remonstrance opposing Patrick Henry's Assessment Bill is undertaken here not only because of its role in the Virginia disestablishment, but because it is the most important document on religious freedom by an American. In a blend of Lockeian views and those of Protestant dissenters, Madison argues that government should have no cognizance over claims of religious truth, as opposed to religious teachings that speak to moral issues of interest to our common life together and hence properly of interest to civil government. Back in 1785, however, Madison's Memorial was less influential than petitions filed by Virginia's Presbyterians and Baptists. A careful look at all these petitions shows that the theological reasons for opposing a religious establishment were the more persuasive. The primary aim of the petitions was to protect organized religion from being corrupted by too close an embrace by the civil state.

Virginia's dramatic story is told here of how a few well-placed statesmen of Lockeian sympathies made common cause with religious dissenters to narrowly carry off a defeat of Henry's tax for the support of clergy salaries. The lesson is that the government's jurisdiction (cognizance) over the church is limited, as civil government is without authority to actively support (or interfere with internal matters of) organized religion, all to the mutual benefit of church and state.

Abstract:
The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the cross remaining on government land in violation of the government’s duty to separate church and state. He seeks an injunction ordering the cross’ immediate removal. Buono is a former employee of the Park Service and was once assigned to the Mojave Preserve for just under a year. He retired nine years ago and presently resides in Oregon, but he retains an active interest in the Preserve and visits it two to four times a year. Standing to sue entails personalized injury-in-fact, but Buono’s claim falls in a small class of cases of “unwanted exposure” to religious expression attributable to the government. That is, Buono has no individuated injury-in-fact, as is normally required by the Court, for his “injury” is merely the observance of government conduct which he sincerely believes to be unconstitutional. Nevertheless, in two instances - both under the Establishment Clause - the Supreme Court has reduced the normal rigor of its standing doctrine: taxpayer claims and “unwanted exposure” claims. Explaining why the Court has done so is the subject of this extended essay.

Establishment Clause, standing, Salazar, Buono, Mojave, unwanted exposure, church and state

Abstract:
The opening phrase of the First Amendment to the U.S. Constitution provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The free exercise clause functions as an individual right with its purpose being to forestall personal religious harm. Its underlying principle is that in religious matters a person ought to be free of coercion caused by the government and thereby not made to suffer for cause of conscience. The function of the establishment clause is altogether different, for its purpose is to restrain government from using its powers to act on matters properly in the realm of religion. The resulting division between church and state impliedly acknowledges that the state is limited in its powers and that the churches retain sufficient breathing space to perform their work in society. The principle underlying this autonomy of the churches is voluntarism, with it consequence that inherently religious matters are under the auspices of the churches and not the state. This proper ordering of the respective competencies of state and church is best for the body politic because it avoids increasing factionalism along religious lines while reinforcing the idea of limited government, and it is best for the churches because it avoids corrupting religion.

In addition to differentiating the two religion clauses, this shift to a structuralist establishment clause explains several longstanding puzzles about the clause: (1) Why the Supreme Court has carved out a special standing exception for federal taxpayers applicable only when asserting claims under the establishment clause; (2) Why the remedy (class-wide injunctive relief) in establishment clause cases is aimed more to negate the power of government rather than affording just victim-specific relief for the actual complainants; (3) Why establishment clause cases touching on religious doctrinal disputes lead to dismissals for lack of subject-matter jurisdiction when there is nothing in Article III of the Constitution that limits the power of the federal judiciary over such cases or controversies; (4) Why viewing the establishment clause as structuralist makes sense of the "two-definitions-of-religion" enigma, notwithstanding that "religion" appears only once grammatically governing both clauses; (5) Why the Court has struck down aid to religious schools reciting as one of its reasons that government aid would be harmful to the schools, while the religious schools themselves actively seek the aid and insist that they have waived any supposed constitutional safeguards to their religious integrity; and (6) Why the supposed "tensions" between the free exercise and establishment clauses ? as if the founders drafted an amendment that is internally contradictory ? go away when no-establishment is viewed as a power-limiting clause and free exercise as a rights-based clause.