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Published online by Cambridge University Press: 24 April 2015
A popular conception about the Religion Clauses of the First Amendment is that the Free Exercise Clause is in tension, or conflict, with the Establishment Clause. Accommodation under the Free Exercise Clause seems, in many cases, to conflict with the establishment clause principle that government must neither advance nor favor any religious practice or belief. In response to this seeming tension between the two mandates, Jonathan Nuechterlein, in a recent article, advances the theory that contrary to popular belief, the two clauses are not in conflict. Rather, the mandates of the two clauses fit together like “pieces in a jigsaw puzzle.” The traditional test of required accommodation under the Free Exercise clause5 employed by the courts define the outer limits of what is allowed under the Establishment Clause.
In what may at first seem to be only a marginally related work, Professor Douglas Laycock tackles the task of formulating a workable definition of governmental neutrality towards religion “neutrality” has under the clauses. Recognizing that the term been repeatedly used and “misused” by both courts and commentators, and recognizing the prevalence of a “formal” definition of neutrality that is at odds with religious liberty,” Laycock lays the groundwork for a systematic definition of that term, and proposes a certain “substantive” definition that best promotes religious liberty.
1. Neuchterlein, Jonathan, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L J 1127, 1127–28 (1990)CrossRefGoogle Scholar.
2. Seep 468.
3. Neuchterlein, , 99 Yale L J 1127 (1990) (cited in note 1)CrossRefGoogle Scholar.
4. Id at 1128.
5. Nuechterlein supports the position that under the Free Exercise Clause, “the government should accommodate religion unless an important state interest precludes doing so—i.e. unless the secular costs of accommodation are high.” Id at 1128-29 [emphasis added].
6. Id at 1129.
7. Laycock, Douglas, Formal, Substantive, and Disaggregated Neutrality Toward Religion, DePaul L Rev 993 (1990)Google Scholar.
8. For the definition of religious liberty adopted here. See note 33.
9. This paper starts from the premise that there is a constitutional right under the Free Exercise Clause to require the government—or the courts—to exempt, or accommodate, a particular religion from generally applicable laws. Nuechterlein, Laycock, and Michael McConnell, another commentator addressed later in this paper, take this position. For arguments against free exercise claims to exemption from generally applicable laws, see Marshall, William P., In Defense of Smith and Free Exercise Revisionism, 58 U Chi L Rev 309 (1991)CrossRefGoogle Scholar, and West, Ellis, The Case Against a Right to Religion-Based Exemptions, 4 Notre Dame J L, Ethics & Pub Pol 591 (1990)Google Scholar.
10. All accommodations that do not violate anti-establishment principles necessarily do not violate free exercise principles. Hence, the term “permissible” would not be too enlightening for the purposes of this paper. The question to explore would be whether the establishment clause test for permissible accommodation becomes almost an interchangeable inquiry for what is required under the Free Exercise Clause.
11. US Const Amend I.
12. Id.
13. Nuechterlein, , 99 Yale L J at 1127–28 (cited in note 1)CrossRefGoogle Scholar.
14. Id.
15. Id at 1128-29 (cited in note 1).
16. See Lemon v Kurtzman, 403 US 602 (1971) (The first prong of the three-prong inquiry used to determine whether state action violates the Establishment Clause man dates that the challenged action must have a secular purpose to pass muster under that clause).
17. Nuechterlein, , 99 Yale L J at 1135 (cited in note 1)Google Scholar.
18. Id.
19. Id at 1139 (cited in note 1).
20. Id.
21. Id at 1139 (cited in note 1).
22. Id.
23. Nuechterlein, , 99 Yale L J at 1143 (cited in note 1)Google Scholar. Although I agree that the above observation about the inference to be derived from a legislature bending over backwards to accommodate a particular religion generally holds true, a qualification needs to be made. A legislature could plausibly go out of its way to accommodate, not because it wants to promote that particular religion's beliefs, but because it firmly believes in the concept of absolute religious liberty-irrespective of the secular costs involved in accommodation.
24. Id at 1143.
25. Id at 1139.
26. See Id at 1139, note 66 and accompanying text.
27. See, for example, Sherbert v Verner, 374 US 398 (1963); Wisconsin v Yoder, 406 US 205 (1972).
28. Nuechterlein, , 99 Yale L J at 1139 (cited in note 1)Google Scholar. But see Employment Division v Smith, 494 US 872 (1990) (recent decision rejecting a free exercise claim to exemption from a generally applicable law that especially burdened a minority religion, and whose secular costs of accommodation would not have been great).
29. Nuechterlein, , 99 Yale L J at 1139 (cited in note 1)Google Scholar.
30. Id at 1146.
31. County of Allegheny v American Civil Liberties Union Greater Pittsburgh Chapter, 492 US 573, 659 (1989) (Kennedy, J., dissenting) (quoting Lynch v Donnelley, 465 US 668, 678 (1984).
32. County of Allegheny v American Civil Liberties Union Greater Pittsburgh Chapter, 492 US 573 (1989) (majority opinion).
33. I adopt here Laycock's understanding of religious liberty, as directly reflected in his definition of substantive neutrality:
“… religion is to be left as wholly to private choice as anything can be …. Government should not interfere with our beliefs about religion either by coercion or by persuasion. Religion may flourish or wither; it may change or stay the same. What happens to religion is up to the people acting severally and voluntarily; it is not up to the people acting collectively through government.” Laycock, , 39 DePaul L Rev at 1002 (cited in note 7)Google Scholar.
34. Id at 1001.
35. Id at 999-1001.
36. Id at 999.
37. Id at 1002-03.
38. Both the Supreme Court and commentators often employ the word neutrality in this “formal” sense.
39. Laycock, , 39 DePaul L Rev at 1003 (cited in note 7)Google Scholar.
40. Because majority religions are assimilated into the main culture, and have more political clout, they can influence the enactment of legislation that affect their religious practices. Minority religions, however, lack such power. Hence, a legislature is less likely to pass a law that burdens a religious practice of a majority religion, than a minority religion. See Id at 1014. See also McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109, 1133–36 (1990)CrossRefGoogle Scholar.
41. Laycock, , 39 DePaul L Rev at 1003 (cited in note 7)Google Scholar.
42. Id.
43. Id.
44. Id.
45. Id.
46. Lemon v Kurtzman, 403 US 602, 612 (1971). The other two tests are whether the accommodation has a secular purpose, and whether it creates excessive government entanglement with religion. See Id.
47. If a certain governmental action passes the first prong because it does have a secular purpose, it can have as its primary effect either the advancement or inhibition of religion, or something else unrelated to religion. Hence, state action that passes the first prong can either pass or fail the second prong.
48. Laycock, , 39 DePaul L Rev at 1007 (cited in note 7)Google Scholar.
49. Id.
50. 472 US 38 (1985).
51. Id at 38.
52. In Wallace, a prior statute had already authorized a moment of silence “for meditation” which could be used by religious students for prayer. A later statute that was enacted authorized, in addition, “teachers to lead ‘willing students’ in a prescribed prayer.” Id at 40. Obviously, the purpose of the statutes was to advance religion.
53. 489 US 1 (1989).
54. Id at 5.
55. Id at 17.
56. Id at 14-15.
57. Id at 15.
58. Id.
59. Nuechterlein, , 99 Yale L J at 1141 (cited in note 1)Google Scholar.
60. Id.
61. Id.
62. Laycock, , 39 DePaul L Rev at 1005 (cited in note 7)Google Scholar.
63. 473 US 402 (1985).
64. Id at 404.
65. Id.
66. Id at 409.
67. Id at 422 (O'Connor, J., dissenting). See also Id at 404-06 (majority opinion).
68. Id at 423.
69. Id at 404.
70. Id at 409-12.
71. Id.
72. Id at 415 (Powell concurring).
73. Id at 418.
74. Id.
75. Id at 417-18.
76. Id at 418.
77. Laycock, , 39 DePaul L Rev at 1008 (cited in note 7)Google Scholar.
78. Id.
79. Id.
80. 473 US at 409-12 (majority opinion). See also 473 US at 421 (O'Connor dissenting).
81. See 473 US at 421 (O'Connor dissenting).
82. Laycock, , 39 DePaul L Rev at 1005 (cited in note 7)Google Scholar.
83. Roemer v Board of Public Works, 426 US 736 (1976).
84. Laycock, , 39 DePaul L Rev at 1005 (cited in note 7)Google Scholar.
85. Id.
86. Nuechterlein, , 99 Yale L J at 1141 (cited in note 1)Google Scholar. See also at 477-79 above (discussion of Texas Monthly).
87. As previously noted, Justice Powell agrees that “evenhanded secular assistance to both parochial and public school children” is permissible. However, he characterizes the program in Aguilar as a “direct financial subsidy,” rather than a permissible incidental benefit, to religious schools for remedial and supplemental education which their students require. Aguilar, 473 US at 417–18Google Scholar (Powell concurring). Justice Powell's characterization of the benefit as a subsidy to parochial schools loses sight of the fact that the program was enacted to provide funding to all private schools, and that it is only by chance that most such recipient schools are religiously-affiliated.
88. The above is the reasoning Laycock puts forth as to why such a solution would discourage religion. Laycock, , 39 DePaul L Rev at 1008 (cited in note 7)Google Scholar.
89. Id at 1005 (citing Roemer, 426 US 746-47).
90. 494 US 872 (1990).
91. Id.
92. See, for example, McConnell, Michael W., Free Exercise Revisionism and the Smith Decision, 57 U Chi L Rev 1109 (1990)CrossRefGoogle Scholar; Gaffney, Laycock, & McConnell, , An Open Letter to the Religious Community, 11 First Things 44 (03, 1991)Google Scholar; The Supreme Court—Leading Cases, 104 Harv L Rev 198 (1990)Google Scholar.
93. 374 US 398 (1963).
94. Smith, 494 US at 894–95 (O'Connor concurring in judgment)Google Scholar.
95. Smith, 494 US at 876–83Google Scholar.
96. Laycock, , 39 DePaul L Rev at 1000 (cited in note 7)Google Scholar. (Smith decision as an example of an application of straight, formal neutrality, which lead to “surprising results that are inconsistent with strong intuitions”). See also Id at 1009, 1017.
97. Justice O'Connor's concludes the opposite in her concurring opinion. Smith, 494 US at 905–907 (O'Connor concurring)Google Scholar.
98. The Supreme Court—Leading Cases, 104 Harv L Rev 198, 207 (1990)Google Scholar.
99. McConnell, , 57 U Chi L Rev at 1109, 1113 (cited in note 40)Google Scholar.
100. Id.
101. The Supreme Court—Leading Cases, 104 Harv L Rev 198, 208 (1990)Google Scholar.
102. Nuechterlein, , 99 Yale L J at 1136 (cited in note 1)Google Scholar.
103. 475 US 503 (1986).
104. Id at 508.
105. Id at 509-10.
106. Id at 510.
107. 475 US at 509.
108. Goldman, 475 US at 510Google Scholar.
109. Here, McConnell uses the term, “neutral,” in the formal sense.
110. McConnell, Michael W., Neutrality Under the Religion Clauses, 81 Nw U L Rev 146, 154 (1986)Google Scholar.
111. Id at 154.
112. Id at 154.
113. See Nuechterlein, , 99 Yale L J at 1141–42 (cited in note 7)Google Scholar.
114. 398 US 333 (1970).
115. Laycock, , 39 DePaul L Rev at 1017 (cited in note 7)Google Scholar.
116. Id.
117. Id.
118. Id.
119. Id.
120. Id at 1017-18.
121. Id at 1018.