When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis

44 Pages Posted: 12 Jun 2007 Last revised: 6 Feb 2008

Carl H. Esbeck

University of Missouri School of Law

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.

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

Suggested Citation

Esbeck, Carl H., When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis. West Virginia Law Review, Vol. 110, p.359, 2007; University of Missouri School of Law Legal Studies Research Paper No. 2007-09. Available at SSRN: https://ssrn.com/abstract=992885

Carl H. Esbeck (Contact Author)

University of Missouri School of Law ( email )

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