The Religion Clauses and the 'Really New' Federalism

Abstract

It had been an axiom of contemporary Constitutional Law that once a provision of the Bill of Rights was "fully" incorporated, such as with the First Amendment, it established a Constitutional minimum. A State could provide, either by constitutional or statutory provision, additional protections to its citizens, so long as this did not create a conflict with other federal law. Another premise, until recently, was that the federal government had the ability by legislation to provide additional or enhanced rights to Americans, and that these rights applied uniformly to residents of all states.

The application of these two principles - at least as applied to First Amendment and Equal Protection type rights - was relatively straightforward. The criteria for determining whether a government act violated the Establishment Clause would be applied to any government actor, whether at the federal, state or local level. The Free Exercise of Religion was protected from violations [defined as significant or substantial interference] by government. Actions by a government entity that might interfere with religious activity had to survive a strict scrutiny review, that is, a showing of a compelling government interest and a proof that restrictions were as narrowly tailored or least restrictive as possible.

Discrimination by government based on race, and several other immutable traits, also had to sustain a strict Constitutional scrutiny. Other rights were protected by semi-strict scrutiny, or a hard rational basis [rational basis "with teeth"] review. If these protections were felt not to be adequate, Congress under public pressure could and did enact civil rights statutes, that provided additional national protections against discrimination by public or private players, first as to race, alienage, nationality, religion and gender, and then later as to disability and age. And states were also free to enact their own civil rights statutes providing additional protections, so long as they did not conflict with federal law or policy.

These assumptions were challenged and now, seemingly inverted, by two Supreme Court decisions, most recently Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. Civil rights protections for citizens now depend on whether the violations are by the federal government, the state government or local government. First, First Amendment protections - the Free Exercise of Religion, and the Wall of Separation between church and state have been limited. Next, federal statutes that provide additional protections are applied differently depending on the level of government. They apply fully to actions by federal officials. But states are free to apply under their own laws a more stringent set of standards for separation of church and state and also to pass neutral and general laws that restrict religious practices.

This article will describe this evolution and particularly the new two-tier process of review under a revised concept of federalism, as indicated by O Centro.

Keywords: religion, federalism, First Amendment

JEL Classification: K1, K10