The Religion Clauses as Mutually Reinforcing Mandates: Why the Arguments for Rigorously Enforcing the Free Exercise Clause and Establishment Clause are Stronger When Both Clauses are Taken Seriously

Abstract:     
Legal commentary often describes the Free Exercise Clause and Establishment Clause of the First Amendment as either being in tension with each other or as serving overlapping and redundant purposes. Both of these perspectives commonly share a willingness to dispense with or subordinate the requirements of one clause while calling for the rigorous implementation of the other. This Essay suggests a different and overlooked dimension of the relationship between the two clauses: in important ways each of the religion clauses supports and reinforces the justification for and rigorous enforcement of the other. Correspondingly, the dilution of one clause undermines the arguments for taking the other clause seriously. To some significant extent, the religion clauses stand or fall together

These reinforcement and dilution connections cover a range of justifications for, and applications of, the two clauses. Establishment Clause constraints on state subsidies of religious institutions and activities support the value formation justification for protecting free exercise rights. The holding of Employment Division v. Smith, eliminating constitutional protection against neutral laws of general applicability, undermines the taxpayer liberty justification for limiting state aid to religious institutions. Free exercise exemptions and accommodations standing alone unacceptably advantage religion in the market place of ideas, and establishment clause limits on government support for religious organizations and beliefs standing alone unacceptably disadvantage religion in the market place of ideas. The rigorous enforcement of each clause (or neither clause) is necessary to balance out these distorting impacts. This essay identifies and discusses these and other ways in which the arguments supporting or undermining each of the religion clauses reinforces or weakens the other.

Number of Pages in PDF File: 31

Accepted Paper Series