1. National Conference of Catholic Bishops, The Challenge of Peace, God's Promise and Our Response, Washington, D.C. (05 3, 1983) [hereinafter cited in text as “pastoral letter” or “letter”]Google Scholar.

2. See id. [hereinafter cited in notes as “The Challenge of Peace”].

3. The Challenge of Peace at ¶ 67.

4. Id. at ¶ 21.

5. Id. at ¶ 326.

6. “Wee shall be […] as a Citty upon a Hill, the eies of all people are uppon us; soe that if wee shall deal falsely with our god in this worke wee have undertaken and soe cause him to withdrawe his present help from us, wee shall be made a story and a by-word through the world.” Winthrop, John, “A Model of Christian Charity” (1630)Google Scholar, a sermon delivered aboard the Arbella, quoted in Boorstin, D., The American: The Colonial Experience 3 (New York: Vintage Books, 1958)Google Scholar.

7. Zorach v. Clauson, 343 U.S. 306, 312–13 (1952)Google Scholar.

8. See, e.g., Virginia Declaration of Rights, Art. 16 (1776); Civil Rights Act of 1964, Title VII §§ 701(j), 702, 703(e)(1, 2), 42 U.S.C. §§ 2000e, et seq., 78 Stat. 255 (employment discrimination); 20 U.S.C. § 4071, P.L. 98-377, 98 Stat. 1303 (“The Equal Access Act”); 29 U.S.C § 169 (religious objections to union membership).

9. See, e.g., U.S. Const, art. VI, cl.3, U.S. Const, amend I; Cal. Const, art. I, § 4 (West, 1983); Fla. Const, art. I, § 3, 25A Fla. Stats Ann. art. I, § 3.

10. Madison, J., “Memorial and Remonstrance Against Religious Assessments” (1785)Google Scholarquoted in, Everson v. Board of Education, 330 U.S. 1, 63–72 (1947) (Rutledge, J., dissenting) [hereinafter “Memorial and Remonstrance”]Google Scholar.

11. Id. at ¶ 1 (note in the original to “Va. Decl. Rights, Art. 16”). Compare The Challenge of Peace at ¶ 326.

12. Id. at ¶ 4.

13. Id.

14. U.S. Const, amend. I provides, in relevant part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ….”

15. 1 Annals of Congress 434 (06 8, 1789)Google Scholar, quoted in Malbin, M.J., Religion & Politics 4 (1978)Google Scholar. This version of the proposed amendment, along with one which would have prohibited the states from “violating] the equal rights of conscience or the freedom of the press, or the trial by jury in criminal cases,” went through several modifications before it emerged in its present form from a House-Senate conference committee comprised of Reps. James Madison (Va.), Roger Sherman (Conn.) and John Vining (Del.) and Senators Oliver Ellsworth (Conn.), Charles Carroll (Md.), and William Patterson (N.J.). The committee's language was accepted by the House and Senate on September 24-25, 1789, respectively. See id., 13-14. The Senate had rejected an amendment which would have prohibited the states from infringing upon the equal rights of conscience. 1 Annals of Congress at 72 (09 7, 1789)Google Scholar, Id. at 13, note 34.

16. Compare text accompanying notes 80-95 infra.

17. A good statement of Madison's views on the extent to which sincerely held religious belief might be set up in opposition to government authority appears in Madison's 1832 Letter to Reverend Adams, in which he stated that “it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority with such distinctness as to avoid collisions and doubts on unessential points.” Letter from James Madison to Reverend Adams (November, 1832), reprinted in IX The Writings of James Madison 485 (Hunt, G. ed. 1909)Google Scholar, quoted in Gaffney, , Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis U. L. Rev. 205, 223 (1980)Google Scholar. Madison fully accepted the proposition that “no other rule exists, by which any question which may divide a society, can be ultimately determined, but the will of the majority” and felt that all believers were best served by an equality principle forbidding the “subjecting of some to peculiar burdens [and] granting to others peculiar exemptions.” See “Memorial and Remonstrance,” supra note 10, at ¶¶ 1, 4. It is particularly relevant to the present topic that Madison chose “the Quakers and Menonists” as examples of religious groups whose beliefs ought not to “be endowed above all others, with extraordinary privileges, by which prostelytes may be enticed from all others.” Id. at ¶ 4. Compare text accompanying notes 77, 78, 81 infra.

18. Although Thomas Jefferson was not involved in the drafting of the first amendment, his views on the proper relationship of church and state form the starting point for contemporary analysis. Jefferson's letter of 1802 to the Danbury Baptists is the source of the now-famous metaphor, “a wall of separation between Church and State”, which has influenced the outcome of nearly all cases involving the religion clauses since 1947. See, e.g., Illinois ex rel McCollum v. Board of Education, 333 U.S. 203 (1948)Google Scholar; Everson v. Board of Education, 330 U.S. 1 (1947)Google Scholar. Whether the Jeffersonian view of “separation” is appropriate given the language and history of the first amendment is a topic beyond the scope of this article. Compare, Wallace v. Jaffree, 472 U.S. 38, 105 S. Ct. 2479, 2508 (Rehnquist J., dissenting) with id. at 2481 (majority opinion per Stevens, J.).

19. See generally, Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U.L. Rev. 57 (1976)Google Scholar; Malbin, Religion and Politics, supra, note 15, at 25-29.

20. Letter of Thomas Jefferson to a Committee of the Danbury Baptist Association, (January 1, 1802), reprinted in Koch, A. & Reden, W., The Life and Selected Writings of Thomas Jefferson 332–33 (1944)Google Scholar.

21. Id.

22. Boyd, J., The Papers of Thomas Jefferson 545 (1950)Google Scholar, quoted in Little, supra, note 19, at 62, nn. 27-29.

23. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303–304 (1940) where the Court statedGoogle Scholar:

[The Constitution] forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organizations or form of worship as the individual may choose cannot be restricted by law. … [Free Exercise] embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. … [The] freedom to act must have appropriate definition to preserve the enforcement of that protection. … [although] the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

Where the distinction between belief and action has been the starting point for the judicial analysis of a free exercise claim, the result is commonly the rejection of the religious claim. See, e.g., United States v. American Friends Service Committee, 419 U.S. 7 (1974) (levy on Quaker funds)Google Scholar; Braunfeld v. Brown, 366 U.S. 599 (1961) (enforcement of Sunday closing laws against Orthodox Jews)Google Scholar; Hamilton v. Regents of the University of California, 293 U.S. 633 (1934) (military training)Google Scholar; Reynolds v. United States, 98 U.S. 154 (1878) (polygamy)Google Scholar.

24. Letter of Thomas Jefferson to a Committee of the Danbury Baptist Association, supra note 20.

25. Compare, e.g., Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981)Google Scholar; Sherbert v. Verner, 374 U.S. 398 (1963)Google Scholar, with, e.g., United States v. Lee, 455 U.S. 252 (1982)Google Scholar; Johnson v. Robison, 415 U.S. 361 (1974)Google Scholar; Gillette v. United States, 401 U.S. 437 (1971)Google Scholar; Autenreith v. United States, 279 F. Supp. 156 (N.D. Cai. 1968)Google Scholar, aff'dsub nom. Autenreith v. Cullen, 418 F.2d 586 (9th Cir. 1969), cert, den., 397 U.S. 1036 (1970).

26. See generally, Clark, , Guidelines for the Free Exercise Clause, 83 Harv. L. Rev. 327 (1969)CrossRefGoogle Scholar; Dodge, , The Free Exercise of Religion: A Sociological Approach, 67 Mich. L. Rev. 679 (1969)CrossRefGoogle Scholar; Giannella, , Religious Liberty, Nonestablishment and Doctrinal Development-Part I. The Religious Liberty Guarantee, 80 Harv. L. Rev. 1381 (1967)CrossRefGoogle Scholar; Marcus, , The Forum of Conscience: Applying Standards Under the Free Exercise Clause, 1973 Duke L.J. 1217Google Scholar.

27. See Parts II and III, infra regarding the political process and defense workers. The questions arising for military personnel are similar to those which apply to defense workers, but the room for permissible dissent and accommodation is far more narrow.

28. The Presidential oath of office is set forth verbatim in U.S. Const, art. II, § 8. The oath of office for all other federal officials, including members of Congress, judges and executive officials, and for members of every state's legislature must include an oath or affirmation to support the Constitution. U.S. Const, art. VI, § 3.

29. By its terms, the Constitution speaks only to the structure and operation of the federal system: (i.e., to the federal government federal officials, the states and state officials). In only one instance does it speak directly to the rights of individuals, rather than imposing a limit on the power of government, and, even then, it does so by negative implication. Compare, U.S. Const, amend XIII (abolishing slavery and involuntary servitude directly) with U.S. Const. Amend. XV (right to vote shall not be infringed “by the United States or by any State”). For generalized discussion of the implications of the “state action” doctrine, see generally, Lockhart, , Kamisar, , Choper, and Shiffrin, , Constitutional Law 1410–71 (6th ed. West 1986)Google Scholar.

30. Political control of the legislative branch is accomplished through three basic methods: election (art. I, § 2); presidential veto of enactments (art. I, § 7, cl 2, 3); expulsion and control of members (art. I, § 5, cl. 1, 2). Political control of the executive is exercised through six basic methods: election (art. II, § 1); impeachment (art. II, § 4; art. I, § 2 cl.5; § 3, cl. 6); the power to advise and consent to nominations and treaties (art. II,§ 2 cl. 2); the Congressional power of the purse (art. I, § 7, cl. 1, § 8, § 9, cl. 7)); and the power to override Presidential vetos (art. I, § 7, cl. 3). Political control over judicial authority is accomplished; through legislation resting on an express constitutional power, Katzenbach v. Morgan, 384 U.S. 641 (1966)Google Scholar; impeachment (art. II, § 4, art. Ill, § 1); control of the Supreme Court's appellate jurisdiction (art. Ill, § 2); and by self-restraint in the exercise of the power of judicial review of legislative or executive action. Political control over the entire federal system is guaranteed through the dual method for proposing constitutional amendments provided in Article V: the first is legislative and depends entirely on the will of Congress, the second is also legislative, but rests upon the authority of a special convention called for the purpose by the Congress upon petition of three-fourths of the states. Interestingly, no member of Congress may, at the same time, sit as a member of such a convention, art. I, § 6, cl. 2, (the Incompatibility Clause) thus assuring that “incompatible” political allegiances will not develop. But cf., Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 108 (1974) (action based on Incompatibility Clause dismissed for want of standing)Google Scholar. In either case, proposed constitutional amendments must be ratified by the requisite number of state legislatures or state ratifying conventions, as specified by Congress. Art. V. The convention method, which has never been used under this Constitution but which produced it, has become a politically controversial issue of late, in large part because approximately 32 of the 34 states needed to call a convention have petitioned the Congress to do so. See Washington Post, October 2, 1984, p. A4, col. 2. On the topic of the political nature of the amendment process, see generally Coleman v. Miller, 307 U.S. 433 (1939)Google Scholar.

31. See generally, Berns, W., “The Nation and the Bishops,” Wall Street Journal, 12 15, 1982, p 28W. col. 3;Google ScholarGoodman, E., “Bishops as Bosses,” Washington Post, 09 11, 1984, p. A.23 col. 1Google Scholar; Kraft, J., “Debate Among Catholics,” Washington Post, 09 18, 1984, p. A19 col. 1Google Scholar; Lofton, J., “Jackson Debases Religion, Politics,” Washington Times, 09 5, 1984, p. 3A col. 1Google Scholar; Rowan, C., “An Unnatural Alliance,” Washington Post, 09 16, 1984, p. B8, col. 2Google Scholar.

32. Handlin, O., Al Smith and His America (1958)Google Scholar; Myers, G., Bigotry (1940)Google Scholar.

33. Remarks of Senator John F. Kennedy Before a Meeting of the Greater Houston Ministerial Assn., Houston, Texas, September 12, 1960.

34. See Johnson, J., “A Born Again Style at the White House,” Washington Post, 01 21, 1977, p. A18, col. 3Google Scholar.

35. Remarks of President Ronald W. Reagan to the Ecumenical Prayer Breakfast, Dallas, Texas, August 23, 1984; Remarks of Walter F. Mondale to the International Convention of B'nai B'rith, Washington, D.C., September 6, 1984; SenatorKennedy, Edward M., “Faith and Freedom,” delivered at Tavern on the Green, New York City, before the Coalition of Conscience, 09 10, 1984Google Scholar; Cuomo, Governor Mario M., “Religious Belief and Public Morality: A Catholic Governor's Perspective” delivered to the Department of Theology, University of Notre Dame, South Bend, Indiana, 09 13, 1984Google Scholar; Representative Hyde, Henry J., “Keeping God in the Closet: Some Thoughts on the Exorcism of Religious Values from Public Life,” delivered at the Thomas J. White Center on Law & Government, School of Law, University of Notre Dame, South Bend, Indiana, 09 24, 1984Google Scholar.

36. See, e.g., Bernardin, , “Role of the Religious Leader in the Development of Public Policy” in Symposium: The Religious Leader and Public Policy, 2 J. Law & Rel. 367, 369 (1984)CrossRefGoogle Scholar; Gaffney, , Biblical Religion and American Politics: Some Historical and Theological Reflections, 1 J. Law & Rel. 171 (1983)CrossRefGoogle Scholar. Briggs, K.A., “Catholic Theologians Have Mixed Reactions to Cuomo's Notre Dame Talk,” New York Times, 09 17, 1984 p. B12 col. 3Google Scholar; Cox, H., “Our Politics Needs Religion,” Washington Post, 09 2, 1984, p. D8, col. 1Google Scholar; McFadden, R.D., “Episcopal Bishop Says Officials Must Put Law Before Tenets,” New York Times, 09 17, 1984, p. BI2, col 1Google Scholar.

37. “Ferraro Denies Charges on Abortion” Washington Post, 09 11, 1984, p. A9, col. 2Google Scholar; Larder, G., “Cuomo Urges Wider Debate of Religion,” Washington Post, 08 4, 1984, p. A5, col. 1Google Scholar; McNeill-Lehrer News Hour, P.B.S., Sept. 11, 1982, segment 2, (Robin McNeill and Charlayne Hunter-Gault interview with Archbishop Bernard Law of Boston and Senator William Mitchell of Maine).

38. See generally Neuhaus, R., The Naked Public Square: Religion and Democracy in America (1984)Google Scholar. See also, Cohen, R., “Religion: Reagan's Divider…”, Washington Post, 09 5, 1984, p. A19, col. 1Google Scholar; Evans, R. & Novak, R., “… and Mondale's Wedge,” Washington Post, 09 5, 1984 p. A19, col. 4Google Scholar; Hentoff, N., “Bishops, Bigots …,” Washington Post, 09 21, 1984 p. A21, col. 1Google Scholar; Kraft, J., “Elmer Gantry Time,” Washington Post, 09 6, 1984, p. A21, 01. 1Google Scholar; McPhereson, W., “God and Man in Dallas,” Washington Post, 09 4, 1984, p. A19, col. 5Google Scholar; Pruden, W. “The Shootout at God's Corral,” Washington Times, 09 5, 1984, p. 2A col. 1Google Scholar; Pruden, W. “‘Holy War’ Pits North vs. South,” Washington Times, 09 19, 1984, p. 2A, col. 1Google Scholar; Sobran, J., “Of Political Piety and Pandering,” Washington Times, 09 6, 1984, p. 2C, col. 2Google Scholar; Yoder, E.M. Jr., “Religion's Place,” Washington Post, 08 29, 1984, p. A25 col. 6Google Scholar; Yoder, E.M. Jr., “The Pope's Example,” Washington Post, 09 6, 1984, p. A21, col. 1Google Scholar. See also sources cited note 31, supra.

39. See also, Harris v. McRae, 448 U.S. 297 (1980)Google Scholar, rev'g, McRae v. Califano, 491 F. Supp. 630 (E.D. N.Y. 1980) (discussing the role of religion in the political process when the issue is one which is commonly identified with particular religious traditions). See also text at notes 68-78 infra.

40. See, e.g., Epps, G., “Pat Robertson's a Pastor, But His Father Was a Pol,” Washington Post, 10 19, 1986, p. H1, col. 4Google Scholar. For a discussion of the issue of clergy holding public office, see text and notes 65-69 infra.

41. The United States Constitution does not contain the phrase “separation of church and state” but rather the following admonitions respecting limits on governmental activity:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.… U.S. Const, amend. I.… [N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” U.S. Const, art. VI, cl. 3.

42. As a practical matter, there has never been “absolute separation” of church and state in the United States. The language of first amendment (“Congress shall make no law”) itself bears witness to the desire of the framers of the Constitution to leave intact then-existing state established churches, see, e.g., Antieau, C.J., Downey, A.T., Roberts, E.C., Freedom from Federal Establishment (1964)Google Scholar, and contemporaneous statutory enactments make it clear that religion and morality were important factors influencing public discourse. See, e.g., Northwest Ordinance of 1787, as adopted by Congress, Statutes of 1789, c.8 (August 7, 1789) (“Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall be forever encouraged.); Story, J., II Commentaries on the Constitution of the United States, Ch. XLIV § 1870–1879 (1851)Google Scholar. George Washington's farewell address also made the point:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports … let it simply be asked where is the security for prosperity, for reputation, for life—if the sense of religious obligation desert… and let us with caution indulge the supposition that morality can be maintained without religion.

Matheson, D.H., History of the Formation of the Union Under the Constitution 569–70 (1941)Google Scholar, quoted in Antieau, supra at 188. During the nineteenth century, the federal government took an active part in assuring the spread of organized religion in the territories, see, e.g., Quick Bear v. Leupp, 210 U.S. 50 (1908) (Indian treaty funds could be used to finance education for Indians in Catholic schools on grounds that funds were Indian property); Brad-field v. Roberts, 175 U.S. 291 (1899) (payments to Catholic hospital); Church of the Holy Trinity v. United States, 143 U.S. 457 (1892) (exemption from immigration law; the Court insisted that government must be friendly toward religion); and in limiting religious practices deemed to be harmful to the public interest, Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1878) (polygamy). Examples of close interaction and protection can be multiplied. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923).

Since the late 1940s, a more “absolutist” view has begun to take root in Supreme Court decisions, but even that is far from being either consistent or “absolute”. See, e.g., Aguilar v. Felton, 105 S. Ct. 3232 (1985); Lynch v. Donnelly, 465 U.S. 668 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982); Everson v. Board of Education, 330 U.S. 1, 28 (1947) (Rutledge, J., dissenting). Compare American Baptist Churches in the U.S.A. v. Reagan, 786 F.2d 194 (3d Cir. 1986), cert, den., 55 U.S.L.W. 3249 (October 21, 1986) (taxpayers have no standing to challenge appointment of ambassador to Vatican). See generally, Hastings, , United States - Vatican Relations, 69 Cath. Hist. Rev. 20 (1958)Google Scholar; Marrero, , The Closing of the American Diplomatic Mission to the Vatican and Efforts to Revive It, 1868-1870, 33 Cath. Hist. Rev. 423 (1948)Google Scholar.

43. The Challenge of Peace ¶ 140.

44. The Challenge of Peace ¶ 141.

45. See sources cited at notes 31-40, supra.

46. The Challenge of Peace ¶ 141.

47. See note 87, infra.

48. U.S. Const, amend. I. The right to freedom of association is not expressly mentioned in the Constitution, but has been implied as being necessary to protect those rights which are express. See generally, Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 U.S. 353 (1937); Whitney v. California, 274 U.S. 357 (1927).

49. See generally Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980); First National Bank v. Bellotti, 435 U.S. 765 (1978); Mills v. Alabama, 384 U.S. 214 (1966). See also Bork, , Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971)Google Scholar; Ely, J.H., Democracy and Distrust (1980)Google Scholar; Polsby, R., Buckley v. Valeo: The Special Nature of Political Speech, 1976 Sup. Ct. Rev. 1Google Scholar.

50. But see F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) (sustaining FCC regulations which limited the use of vulgar language during certain hours); Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (limitation on political advertising in public transit vehicles); Adderly v. Florida, 385 U.S. 39 (1966) (limitation on demonstration on jail property); Kovacs v. Cooper, 336 U.S. 77 (1949) (government may impose reasonable “time, place and manner” restrictions on speech).

51. For purposes of this discussion, the only relevant identity- based restrictions would be 1) limits on the ability of church officials to speak on political matters; 2) limits on the ability of politicians to address issues; and 3) limits imposed on the citizenry at large.

52. Content-based regulations are presumptively unconstitutional, Widmar v. Vincent, 454 U.S. 263 (1981); Carey v. Brown, 447 U.S. 455 (1980); Police Dep't of the City of Chicago v. Mosley, 408 U.S. 92 (1972), and the government must demonstrate a “clear and present danger of imminent lawless action” before such regulation can be justified. See Brandenburg v. Ohio, 395 U.S. 444 (1969). In practice, attempts by government to regulate speech with a political impact have rarely succeeded. See, e.g., National Socialist Party v. Skokie, 432 U.S. 43 (1977); New York Times Co. v. United States, 403 U.S. 713 (1971) (“Pentagon Papers”); Mills v. Alabama, 384 U.S. 214 (1966); but see United States v. Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979), (preliminary injunction against publication of directions for building hydrogen bomb upheld), request for writ of mandamus denied sub. nom. Morland v. Sprecher, 443 U.S. 709 (1979), dismissed as moot, Nos. 79-1438, 79-1664 (7th Cir., Oct. 1, 1979).

53. The “clear and present danger' standard represents the highest standard of judicial review in American constitutional law, for it allocates the entire burden of proving an extraordinary degree of justification to the government, which must rebut the presumption of unconstitutionality discussed in the previous note. See generally, Tribe, L., American Constitutional Law §§ 12–9 to 12–11 (West, 1978)Google Scholar; Nowak, , Rotunda & Young, Constitutional Law 853–865 (West 3d ed., 1986)Google Scholar.

54. See text at notes 6-25, supra.

55. See political commentary cited in notes 31-38 and 40, supra.

56. See text at notes 48-53, supra. The Speech and Debate Clause of the U.S. Constitution, art. I, § 6, confers a broad privilege for speech by elected legislators when acting in their legislative capacities. See Hutchinson v. Proxmire, 443 U.S. 111 (1979); Gravel v. United States, 408 U.S. 606 (1972). See generally, Reinstein, & Silvergate, , Legislative Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113 (1973)CrossRefGoogle Scholar.

57. Although Pope John Paul II has indicated that Catholic clergy and religious should not hold public office, Brown, W., “Pope John Paul II Bars Priests from Serving in Public Office,” Washington Post, 05 5, 1980, p. Al, col. 1, nothing in American constitutional law would prevent them from doing so. U.S. Const, art. VI, § 2Google Scholar; amend. I, McDaniel v. Paty, 435 U.S. 618 (1978).

58. There are limitations on the ability of church leaders to use church facilities and tax-exempt funds for political purposes, see generally materials cited in note 87, infra, and generally applicable campaign spending limits for federal election campaigns. Federal Election Campaign Act, as amended, 2 U.S.C. §§ 431-441, 451-455; 5 U.S.C. §§ 1501-1503; 18 U.S.C. 26 U.S.C. §§ 276, 6012, 9002-9012, 9031-9042; 42 U.S.C. § 5043; 47 U.S.C. §§ 312, 315; Pub. Laws 92-255, Feb. 7, 1972, 86 Stat. 3; 93-443, Oct. 15, 1974, 88 Stat. 1263; 94-283, Title I, §§ 101-115(f, h, i), Title II, §§ 201-210, Title 111 §§ 310, 312, May 11, 1976, 90 Stat. 475-496; 95 127, Oct. 12, 1977, 91 Stat. 1110; 95-216, Title V, § 502(a), Dec. 20, 1977, 91 Stat. 1504-1565; 96-187, Jan. 8, 1980, 93 Stat. 1339.

59. See, e.g., McDaniel v. Paty, 435 U.S. 618 (1978), rev'g, Paty v. McDaniel, 547 S.W.2d 897 (Tenn., 1977).

60. See Widmar v. Vincent, 454 U.S. 263 (1981) (prayer); Harris v. McRae, 448 U.S. 297 (1980) (abortion); Lemon v. Kurtzman, 403 U.S. 602 (1971) (nonpublic schools); Everson v. Board of Education, 330 U.S. 1 (1947) (student transportation).

61. Such a theory of judicial oversight raises substantial questions regarding the role of the judiciary in a representative democracy. Such questions are, for the most part, beyond the scope of this paper. On this topic, see generally Hamilton, A., Madison, J., Jay, J., The Federalist (NO. 78) (1788)Google Scholar.

62. McDaniel v. Paty, 435 U.S. 618 (1978). This case took on added significance during the 1984 Presidential campaign when the Rev. Jesse Jackson announced his candidacy for the Democratic Party's nomination for the presidency. Compare text at note 40, supra.

63. The Tennessee Constitution of 1796 provided:

Whereas ministers of the gospel are, by their profession, dedicated to God and the care of Souls, and ought not to be diverted from the great duties of their functions, therefore, no minister of the gospel, or priest of and denomination whatever, shall be eligible to a seat in either house of the legislature.” Tenn. Const, art. VIII, § 1 (1796).

Seven of the original states (Maryland, Virginia, North Carolina, South Carolina, Georgia, New York and Delaware) disqualified clergy from legislative office. Three of the seven (New York, Delaware, and South Carolina) barred clergy from holding any political office. McDaniel v. Paty, 435 U.S. 618, 622 & note 3 (1978), quoting Pfeffer, L., Church, State and Freedom 118 (Rev. ed. 1967)Google Scholar.

64. See Paty v. McDaniel, 547 S.W.2d 897 (Tenn. 1977).

65. Chief Justice Burger, joined Justices Powell, Rehnquist and Stevens, argued that the Tennessee constitutional provision impermissibly conditioned Rev. McDaniel's right to free exercise of religion on the surrender of his right to seek public office. The Chief Justice cited Sherbert v. Verner, 374 U.S. 398 (1963) as the controlling case. Sherbert is discussed at some length in the text accompanying notes 150-163, infra. Justice Brennan joined by Justice Marshall, argued that the prohibition was a religious test absolutely prohibited by U.S. CONST, art. VI, cl. 3, and Torcaso v. Watkins, 367 U.S. 488 (1961); that it imposed an impermissible burden on the rights conferred by the Free Exercise Clause, citing Sherbert; and violated the Establishment Clause by establishing a religiously based classification which had a primary effect of inhibiting religion, 435 U.S. at 630. Justice Stewart argued that Torcaso alone controlled the case because it was directed at prohibitions which do not turn on statements of belief, but upon action dictated by belief. 435 U.S. at 643. See also text at notes 16-25, supra. Justice White argued that the prohibition violated the Equal Protection Clause of the fourteenth amendment, and that it was both underinclusive and overinclusive. 435 U.S. at 644.

66. McDaniel v. Paty, supra, 435 U.S. at 641 (Brennan and Marshall, J.J., concurring) (footnote omitted).

67. The “political divisiveness” argument had its genesis in Walz v. Tax Comm'n, 397 U.S. 664 (1970), when the late Justice John Harlan cited one sentence in ProfessorFreund's, Paul article, Public Aid to Parochial Schools, 82 Harv. L. Rev 1680 (1969)CrossRefGoogle Scholar, to support the idea that highly charged political controversies such as debates over the funding for church-related schools “engender a risk of politicizing religion” and that “history cautions that political fragmentation on sectarian lines must be guarded against.” 397 U.S. at 695.

68. By the time the Court decided Lemon v. Kurtzman, 403 U.S. 602 (1971), the “political divisiveness” argument had become what appeared to be an additional factor to be considered in first amendment cases involving the Religion Clauses. In Lemon the Court formalized what has since become known as a “three-pronged” test for “secular purpose,” a “primary effect which neither advances nor inhibits religion,” and lack of “excessive entanglement” between religion and government, 403 U.S. at 612-613. It also seemed to raise the “potential” for division along religious lines to the status of an independent factor in constitutional analysis, see, 403 U.S. at 622-624. Although the “political divisiveness” point was arguably unnecessary to the Court's decision, the Court apparently felt some need to speak on the issue. Chief Justice Burger's opinion for the Court states flatly that “ [i]t conflicts with our whole history and tradition to permit questions of the Religion Clauses to assume such importance in our legislatures and in our elections that they could divert attention from the myriad issues and problems that confront every level of governmentf,]” and that it was unwise to force” candidates to declare and voters to choose” on such issues. 403 U.S. at 623. When the Court has been forced to consider the full implication of “the political divisiveness” argument in the context of individual participation in the political process, however, it has backed away. See Harris v. McRae, 448 U.S. 297 (1980) (attempted invalidation of Congressional spending restrictions on divisiveness grounds); McDaniel v. Paty, 435 U.S. 618 (1978) (exclusion of clergy from state legislative post based, in part, on potential for political “divisiveness” on religious grounds. But see, Aguilar v. Felton, 105 S.Ct. 3232, 3239 (1985) (Powell, J., concurring) (raising political divisiveness issue). See also Choper, , The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1980)Google Scholar; Gaffney, , Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis U. L. Rev. 205 (1980)Google Scholar; Ripple, , The Entanglement Test of the Religion Clauses—A Ten Year Assessment, 27 U.C.L.A. L. Rev. 1995 (1980)Google Scholar.

69. 448 U.S. 297 (1980), decided together with Williams v. Zbaraz, 448 U.S. 358 (1980).

70. Act of September 30, 1976, Pub. L. 94-493, 90 Stat. 1434 (1976); Act of December 9, 1977, Pub. L. 95-205 101, 91 Stat. 1460 (1977); Act of October 18, 1978, Pub. L. 95-480 § 210, 92 Stat. 1586 (1978; Act of November 20, 1979, Pub. L. 96-123 § 109, 93 Stat. 926 (1980).

71. Among the plaintiffs in the McRae case were: Cora McRae, the Women's Division of the Board of Global Ministries of the United Methodist Church, and the Health & Hospitals Corporation of the City of New York.

72. The statute, an amendment to numerous appropriations bills in addition to the ones cited in note 70, supra, bears the name of its original proponent, Rep. Henry Hyde of Illinois.

73. Harris v. McRae, 448 U.S. 297 (1980); See First Amended Complaint of Plaintiffs, McRae v. Califano, 491 F. Supp. 630 (E.D. N.Y. 1980), rev'd sub nom. Harris v. McRae, supra.

74. See notes 49-53, supra, and accompanying text.

75. In his opinion for the majority in Harris v. McRae, Justice Stewart made the traditional comment that “[i]t is not the mission of this Court or any other to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy[,]” 448 U.S. at 326, but added, somewhat uncharacteristically, that “[i]f that were our mission, not every Justice who has subscribed to the judgment of the Court today could have done so.” Id. Justice Marshall was not so circumspect regarding the nature of the process and the role of the Supreme Court. Justice Marshall's dissent argued that the Court should never have permitted such a highly charged issue to be exposed to the normal political process because “… the Court's decisions [in Maher v. Roe, 432 U.S. 464 (1977); Beal v. Doe, 432 U.S. 438 (1977); and Poelker v. Doe, 432 U.S. 519 (1977)] [were] an invitation to public officials, already under extraordinary pressure from well-financed and carefully orchestrated lobbying campaigns, to approve more such restrictions on governmental funding for abortion”, 448 U.S. at 337 (Marshall, J., dissenting). But see U.S. CONST, art. I, § 7, cl. 9; Brief of Rep. Jim Wright, et al, and Certain Other Members of Congress of the United States as Amici Curiae, Harris v. McRae, 448 U.S. 297 (1980) (arguing that under art. I, § 7, cl. 9 of the United States Constitution, the Court had no constitutional authority to order an appropriation from the Treasury where Congress had expressly refused to exercise its spending power). See also note 30, supra.

76. 448 U.S. at 319-20. Although the decisions in McDaniel v. Paty and Harris v. McRae constitute a rejection of the most extreme applications of the political divisiveness argument, the theme that religion as a driving force in the body politic is politically divisive and constitutionally suspect runs like a strong undercurrent through the writings of Justices Brennan, Marshall, Powell and Blackmun. Although a thorough discussion of their apparent disdain for religious involvement in political affairs is beyond the scope of this article, it does deserve some attention here. See generally sources cited note 68, supra.

From a review of their writings on religious involvement in the political process, it appears that the problem arises when the object or result of that involvement is to modify or challenge the scope or direction of judicially established public policy. The contrast between the approach taken by several of these justices in Harris and McDaniel illustrates the point.

Where, as in McDaniel, the use of the political divisiveness argument limits the ability of clergy to run for political office, Justices Marshall and Brennan speak eloquently concerning the right of individuals to make their voices heard on the floor of legislative councils. Where the issue is not the identity of the speaker, but the topic presented for discussion, the views of both Justice Brennan and Marshall are different. Where the issue is controversial, and religious groups have articulated strong moral positions in opposition to those taken by the courts, these justices appear to believe that the judiciary has a special role in assuring that the political process is not tainted by divisive debates over the relative merits of issues having moral or religious dimensions. In their opinion, such issues should be decided by the courts. Justice Brennan, whose opinion in Harris v. McRae was joined by Justice Marshall, summarized the issue as follows:

[T]he Hyde Amendment is a transparent attempt by the Legislative Branch to impose the political majority's judgment of the morally acceptable and socially desirable preference on a sensitive and intimate decision that the Constitution entrusts to the individual. Worse yet, the Hyde Amendment does not foist that majoritarian viewpoint with equal measure upon everyone in our Nation, rich and poor alike; rather, it imposes that viewpoint only upon that segment of our society which, because of its position of political powerlessness, is least able to defend its privacy rights from the encroachments of state mandated morality. The instant legislation thus calls for more exacting judicial review than in most other cases. ‘When elected leaders cower before public pressure, this Court, more than ever, must not shirk its duty to enforce the Constitution for the benefit of the poor and powerless.’ Beal v. Doe, 432 U.S. 438, 462 (1977) (Marshall, J., dissenting).

The issue in Harris v. McRae was abortion funding. More precisely, it was Congress' refusal to provide it after being lobbied extensively by those with identifiably religious and moral beliefs in opposition to abortion. The Brennan-Marshall view that judicial intervention is needed “to enforce the Constitution for the benefit of the poor and powerless” whenever “elected leaders cower before public pressure” is extraordinary. The “public pressure” about which they are concerned is voter opposition to the Court's policy views on the legitimacy of abortion. Because these justices reject the religiously motivated voter's viewpoint on this issue, they also see religiously motivated public pressure on the Congress to adopt it as a constitutionally illegitimate basis for legislative judgment. Justice Powell's opinion in Aguilar v. Felton, makes essentially the same point in a slightly different manner in the context of aid to religiously affiliated education:

This risk of [excessive] entanglement [between church and state] is compounded by the additional risk of political divisiveness stemming from the aid to religion at issue here. I do not suggest that at this point in our history the Title I program or similar parochial aid plans could result in the establishment of a state religion. There likewise is small chance that these programs would result in significant religious or de nominational control over our democratic processes, [citation omitted] Nonetheless, there remains a considerable risk of continuing political strife over the propriety of direct aid to religious schools and the proper allocation of limited governmental resources. … In states such as New York that have large and varied sectarian populations, one can be assured that politics will enter into any state decision to aid parochial schools. … In short, aid to parochial schools of the sort at issue here potentially leads to ‘that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.’” Walz v. Tax Commission, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.). Although the Court's opinion does not discuss it at length, [citation omitted] the potential for such divisiveness is a strong additional reason for holding that the Title I and Grand Rapids programs are invalid on entanglement grounds. Aguilar v. Felton, 105 S. Ct. 3232, 3239 (1985) (Powell, J., concurring)

The “entanglement” with which Justice Powell is concerned is the involvement of voters who, for religious reasons, have chosen to send their children to nonpublic schools. Because the Court has taken the position that such aid is problematic, further debates over the allocation of scarce education funds would simply open up further opportunities for “elected officials to cower before public pressure” and reopen debates the Court had hoped were settled.

The views of Justices Blackmun and Stevens are the most direct on this point; for they make no attempt to couch their views in a mantle of judicial concern for the integrity of the political process. They would simply substitute the Court's moral judgment for that of the legislature when the issue is one on which the Court has spoken. See, e.g., Bowers v. Hard-wick, 106 S. Ct. 2841, 2854 (1986) (Blackmun, J., dissenting) (sodomy restrictions and the right to privacy; Judeo-Christian tradition, standing alone, is not a legitimate source of law on which to base restrictions of personal sexual activity); Thornburgh v. American College of Obstetricians and Gynecologists, 106 S. Ct. 2169, 2187-88 (1986) (Stevens, J., concurring) (abortion; protection of unborn as illegitimate adoption of a religious view of prenatal life); Harris v. McRae, 448 U.S. 297, 348 (1980) (Blackmun, J., dissenting) (abortion funding; “the Government ‘punitively impresses upon a needy minority its own concepts of the socially desirable, the publicly acceptable, and the morally sound’ “).

77. Id. Protection of the right to object “selectively” to government policy would expand the scope of currently available legal protection for Catholic conscientious objectors who subscribe to traditional Catholic views on “just wars”. As construed by the Supreme Court of the United States, the Military Selective Service Act of 1967 Section 6(j), 50 U.S.C. App. § 456(j), as amended, required that the objector plead and prove that he objects to war in general. Gillette v. United States, 401 U.S. 437 (1971). Such a construction of the statutes raises a multitude of constitutional and statutory policy questions. See Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965); Selective Draft Law Cases, 245 U.S. 366, 389-90 (1918); Reply Brief of Behalf of Petitioner, Negre v. Larsen, No 70-325, Gillette v. United States, 401 U.S. 437 (1971) (companion case involving Catholic objector). For discussion of other critical constitutional questions raised by the selective service cases see generally Donnici, , Governmental Encouragement of Religious Ideology: A Study of the Current Conscientious Objection Exemption from Military Service, 13 J. Pub. L. 16 (1964)Google Scholar; Greenawalt, , All or Nothing at All: The Defeat of Selective Conscientious Objection, 1971 Sup. Ct. Rev. 31Google Scholar; Moore, , The Supreme Court and the Relationship Between the “Establishment” and “Free Exercise” Clauses, 42 Tex. L. Rev. 142 (1963)Google Scholar; Rabin, , When is a Religious Belief Religious: United States v. Seeger and the Scope of Free Exercise, 51 Corn. L.Q. 231 (1966)Google Scholar; Schwartz, , No Imposition of Religion: The Establishment Clause Value, 77 The Yale L.J. 692 (1968)CrossRefGoogle Scholar.

78. Gillette v. United States, 401 U.S. 437 (1971) (rejecting “selective” conscientious objection).

79. Compare Governor Mario M. Cuomo, supra note 35, with Representative Henry J. Hyde, supra note 35. Interestingly, it is Catholic politicians who are most affected by this problem. President John F. Kennedy's Houston speech is a classic example of a Catholic politician forced by political forces to distance himself from his religious affinity group and its issues. Governor Cuomo's speech is similar in political motivation, although the speaker's position on the particular issue causing the most controversy is well aligned with that of the dominant forces in the Democratic Party in 1984. Perhaps the best example of such “singling out,” however, is the use of asterisks by the Congressional Quarterly to identify Catholic politicians in reports on Congressional action on abortion related issues. See note 80, infra. One could imagine the public outcry if such “reporting” of religious affiliation—or lack of it—became commonplace.

80. Although these are not really “Catholic” issues, as such, they have been so identified in the popular and other press. See, e.g., Remarks of Senator John F. Kennedy Before a Meeting of the Greater Houston Ministerial Association, September 12, 1960, cited at note 33, supra (pledge regarding support for parochial schools); Congressional Quarterly, February 4, 1979, at 258-267 (Catholic legislators marked with an asterisk in reference to votes on abortion-related issues).

81. See Gillette v. United States, 401 U.S. 437 (1971); Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965); Selective Draft Law Cases, 245 U.S. 366, 389-90 (1918); Reply Brief of Behalf of Petitioner, Negre v. Larsen, No 70-325, Gillette v. United States, 401 U.S. 437 (1971) (companion case involving Catholic objector holding traditional view).

82. See sources cited notes 35-38, supra.

83. “The Challenge of Peace” ¶ 323, quoting Pastoral Constitution #75.

84. Id. at ¶ 324.

85. National Conference of Catholic Bishops, Ad Hoc Committee on War and Peace, The Challenge of Peace: God's Promise and Our Response (second draft), 12 Origins 305, 325 (N.C. Documentary Service, Washington, D.C., 10 28, 1982)Google Scholar. The Second Draft contained the following specific suggestion:

Catholic public officials might well serve all of our fellow citizens by proposing and supporting legislation designed to give maximum protection to … true freedom of conscience.

86. Id. Compare The Challenge of Peace ¶ 324 (admonition to public officials generally).

87. Pastoral teaching should not be understood, however, to include the official support of particular candidates or particular pieces of legislation by the church as an institution. Such activities, while constitutionally protected, may result in a proportionate or total loss of tax exemptions available to religious and charitable institutions under federal and state tax laws. See, e.g., Internal Revenue Code §§ 501(c)(3), 511; N.Y. Real Property Tax Law § 421, N.Y. Tax Law §§ 601(d), 1116; art. 9A. A detailed discussion of the statutory and public policy implications of the tax exemption issue is beyond the scope of this paper. For general discussion of these issues, see Bob Jones University v. United States, 461 U.S. 574 (1983) (public policy and tax exemptions); Walz v. Tax Comm'n, 397 U.S. 664, (1970) (constitutionality of tax exemptions); Christian Echoes National Ministry v. United States, 470 F.2d 849 (10th Cir. 1972), cert, den., 414 U.S. 864 (1973). See also, Caron, and Dessingue, , I.R C. § 501(c)(3: Practical and Constitutional Implications of “Political” Activity Restrictions, 2 J. Law & Rel. 169 (1985)Google Scholar.

88. See notes 18-20, supra.

89. Lynch v. Donnelly, 465 U.S. 668 (1984), quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

90. See The Challenge of Peace ¶ 324.

91. Meiklejohn, , Free Speech and its Relation to Self-Government, reprinted in part inLockhart, , Kamisar, , Choper, & Shiffrin, , Constitutional Law 684–86 (6th ed. West 1986)Google Scholar.

92. See Little, , Thomas Jefferson's Religious Views and Their Influence on the Supreme Court's Interpretation of the First Amendment, 26 Cath. U.L. Rev. 57 (1976)Google Scholar.

93. It is well settled that the needs of the military services command substantial deference in the analysis of constitutional claims which will have an impact on either military action or discipline. See, e.g., Rostker v. Goldberg, 453 U.S. 57 (1981); Brown v. Glines, 444 U.S. 348 (1980) (upholding Air Force regulation requiring authorization “from the appropriate commander” before signatures could be collected on a petition); Greer v. Spock, 424 U.S. 828 (1976) (upholding regulations banning demonstrations, picketing, protest marches, political speeches or similar activities on the post, and prohibiting the posting of any publication without prior written approval of post headquarters); Parker v. Levy, 417 U.S. 733 (1974) (upholding conviction of Army officer for urging soldiers to disobey orders to go to Vietnam under Articles 133 and 134 of the Uniform Code of Military Justice for “conduct unbecoming an officer and gentleman” and “prejudicial to good order and discipline”); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974) (standing; judicial refusal to intervene in war powers controversy); Korematsu v. United States, 323 U.S. 214 (1944) (Japanese exclusion cases). See also Dronenburg v. Zech, 746 F.2d 1579 (D.C. Cir. 1984).

94. Substantive constitutional rights which find their source in either the Bill of Rights or the fourteenth amendment are limitations on the powers of government. In order to hold a private party as being involved in “state action” a nexus must be shown between government and the private action. Jackson v. Metropolitan Edison Co., 419 U.S. (1974); Moose Lodge v. Irvis, 407 U.S. 163 (1972); Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961); Civil Rights Cases, 109 U.S. 3 (1883).

95. See text at notes 105, 120-122, infra.

96. The Challenge of Peace, ¶ 318.

97. The Challenge of Peace, Summary ¶ 3.

98. The Challenge of Peace, ¶¶ 4, 10.

99. See text at notes 133-153, infra (reference to employment discrimination cases).

100. The Challenge of Peace, ¶¶ 66, 70, 75-111.

101. See The Challenge of Peace, ¶ 318.

102. See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972).

103. See text at notes 25-26, supra.

104. See text at notes 119-122, infra.

105. The materials in this section deal only with the requirements of the main federal employment discrimination law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. The requirements of applicable state fair employment practices laws and the application of those statutes to federal defense contractors is beyond the scope of this paper. See, e.g., Arizona Rev. Stat. Ann. § 1–1463 (B)(1) (1974)Google Scholar; Hawaii Rev. Stat. § 378–2 (1976)Google Scholar; Maine Rev. Stat. Ann. 5 § 4572 (1964)Google Scholar; Nebraska Rev. Stat. § 48–1104 (1943)Google Scholar; Pa. Stat. Ann. Tit. 43 § 955(5)(g) (Purdon 1963)Google Scholar; 4B Utah Code Ann. § 34–35–6 (1953)Google Scholar. For a discussion of the application of those statutes to religiously affiliated colleges and universities see Dutile, F.N. and Gaffney, E.M., State and Campus (1984)Google Scholar.

106. The Challenge of Peace ¶ 318.

107. Id.

108. Id

109. Id.

110. There is no indication in either the text of the Letter and its drafts or the news coverage which followed its publication, that the issue was given any consideration. The only relevant portions of the letter which could be said to address this issue were the references to the Statement on Registration and Conscription for Military Service (Washington, D.C 1980)Google Scholar and Human Life in Our Day (Washington, D.C. 1980)Google Scholar, but examination of the footnote material referenced in the text of the letter indicates that they are not on point, especially with respect to the obligation of civilians in the nonmilitary context.

111. The Challenge of Peace ¶ 318.

112. Title VII of the Civil Rights Act of 1964, as amended, §§ 70l(j), 702, and 703(a-e), 42 U.S.C. §§ 2000e(j), 2000e-1, 2000e- 2(a-e).

113. Section 701(b) of Title VII, 42 U.S.C. § 2000e(b) extends Title VII coverage to any “employer … engaged in an industry affecting commerce who has fifteen or more employees … and any agent of such person, but such term does not include (1) the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any department or agency of the District of Columbia subject by statute to procedures of the competitive service (as defined by section 2101 of Title 5 of the United States Code),….” Title VII was amended in 1972 to include federal employees, P.L. 92-261, 86 Stat. III, as amended 92 Stat. 3781 (1978) 42 U.S.C. § 2000e-16. Morton v. Mancari, 417 U.S. 105 (1974).

114. See generally, eg., Ohio Rev. Code § 4141.09. et seq. 29 (Page, 1984)Google Scholar; 15 Tex. Civ. Stats. §§ 5221b–1 et seq. (Vernon supp. 1983)Google Scholar.

115. Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963).

116. Section 703, 42 U.S.C. § 2000e-2.

117. Section 701(j); 42 U.S.C. § 2000(j), as amended.

118. See note 143, infra.

119. See note 122, infra. Cases arising in this category are, by far, the most common for reasons discussed in note 140.

120. The other two sections, 42 U.S.C. §§ 2000e-1 and 2000e- 2(e)(2), relate to the need for religious institutions and their affiliated educational institutions, to hire on the basis of religion whenever their activities reasonably require it. As such, these sections explicitly recognize that, for religious institutions, religious belief is often a “bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 2000e-2(e)(1) [BFOQ]. The effect of these provisions is to remove a considerable, and probably unconstitutional, amount of discretion from the courts or administrative agencies which would, in the absence of such special rules, be asked to make determinations concerning the legitimacy of hiring practices designed to safeguard the doctrinal integrity and mission of religious institutions. Compare 42 U.S.C. § 2000e (religion as a bona fide occupational qualification) with, e.g., EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981) (reporting requirements of Title VII),; McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972) (sex-discrimination, church-minister relationship).

121. 42 U.S.C. § 2000e-2(e).

122. It is significant that the statute is phrased in this manner, for it negates the applicability of the nondiscrimination provisions upon the showing of “reasonable” necessity. It has been held that, for purposes of religious discrimination, all that need be shown by the employer to claim the exemption is a de minimis impact on business or labor contract interests. See T.W.A. v. Hardison, 432 U.S. 63, 84 (1977) (accommodation); Equal Employment Opportunity Commission, Religious Discrimination Guidelines, 29 C.F.R. § 1605.2(e)(1) (defining “undue hardship”). The reasons for such a narrow construction of the statute are varied, and relate to both constitutional and statutory concerns.

In Hardison, for example, it was significant that the union involved claimed its duty to accommodate (based on Section 703 of Title VII, 42 U.S.C. § 2000e-2(e)) was negated by the impact of the requested accommodation (a shift change) on the seniority system, see 432 U.S. at 81-83 (relying on 42 U.S.C. § 2000e-2(h)). At this writing, the relationship of general nondiscrimination requirements and the requirements of bona-fide seniority systems is far from settled, especially where it is argued that the Constitution itself (rather than Title VII) is the source of the nondiscrimination rule. Compare, e.g., Wygant v. Jackson Board of Education, 106 S. Ct. 1842 (1986); Firefighters Local Union No. 1784 v. Stotts, 104 S. Ct. 2576 (1984) (race discrimination; Title VII); Franks v. Bowman Transportation, Co, 424 U.S. 747, 778 (1976) (race discrimination; retroactive seniority), with Local No. 93, International Assn. of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 106 S. Ct. 3063 (1986) (race discrimination; Title VII); N.A.A.C.P. v Detroit Police Officer's Ass'n., 591 F. Supp. 1194 (E.D. Mich. 1984). Such a discussion is far beyond the scope of this paper and the subject is mentioned only to illustrate the difference in approach between representation cases involving race, sex or national origin discrimination, and accommodation cases involving religious discrimination as defined by Section 701(j) of Title VII.

In the former, a considerable burden on employer business practice is held to be justifiable in order to eradicate discrimination, in the latter cases, only a slight burden is held to be permissible. Compare T.W.A. v. Hardison, 432 U.S. 63 (1977) with Williams v. Southern Union Gas Co., 529 F.2d 483 (10th Cir. 1976); Reid v. Memphis Publishing Co., 521 F.2d 512 (6th Cir. 1975), cert, den., 429 U.S. 964; Johnson v. United States Postal Service, 497 F.2d 128 (5th Cir. 1974) (finding undue burden on other employees); Draper v. United States Pipe & Foundry, Co., 527 F.2d 515 (6th Cir. 1975); Cummins v. Parker Seal Co., 576 F.2d 544 (6th Cir., 1975), aff'd by equally divided Court, 429 U.S. 65 (1976); Riley v. Bendix Corp, 464 F.2d 1113 (5th Cir. 1972) (finding no undue burden and duty to accommodate). Although part of the distinction may be based on statutory language, not all of it can be explained on this basis. Compare 42 U.S.C. § 2000e(k) (defining “on the basis of sex” to include needed accommodation for pregnancy related conditions).

Another reason, rarely discussed in detail, relates to the duty of Congress under the Religion Clauses of the first amendment to avoid preferences for any one religion over another. On this topic, see generally Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); Cummins v. Parker Seal Co., supra, 516 F.2d at 556 (Celebrezze, J. dissenting) (arguing that the religious accommodation requirements of Title VII are unconstitutional as a preference for and among religions). Note, The Constitutionality of an Employer's Duty to Accommodate Religious Beliefs and Practices, 56 Chi.-Kent L. Rev. 635 (1980)Google Scholar; Note, The Reasonable Accommodation Rule Mandates Unconstitutional Preference for Religious Workers in Title VII Actions, 30 Vand. L. Rev. 1059 (1977)Google Scholar.

123. The Challenge of Peace, ¶¶ 147-49.

124. See text at note 96, supra.

125. The Challenge of Peace ¶¶ 80-111. For a thorough discussion of the range of religious traditions which also adopt this position see Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective (Reid, C. ed. 1986)Google Scholar. See also Bainton, R., Christian Attitudes Toward War and Peace: A Historical Survey and Critical Reevaluation (1960)Google Scholar; Curran, C., Directions in Christian Social Ethics (1984)Google Scholar; Zahn, G., War, Conscience and Dissent (1967)Google Scholar.

126. The Challenge of Peace ¶ 318.

127. Id. This is especially true given the discussion of the value of nonviolence in ¶¶ 111-21.

128. The Challenge of Peace ¶ 324.

129. Gillette v. United States, 401 U.S. 437 (1971), see generally sources cited at notes 77, 78, 81, supra.

130. The Challenge of Peace ¶ 318 makes it clear that the Bishops “seek as moral teachers and pastors to be available to all who confront these questions of personal and vocational choice[, and that] … [t]hose who remain in [defense] industries or earn a profit from the weapons industry should find in the Church guidance and support for the ongoing evaluation of their work.” (emphasis supplied). From this it can be seen that the letter alone will not be sufficient to supply necessary answers. Reference to additional sources, in conjunction with the pastoral guidance the Bishops have pledged, is necessary.

131. Id.

132. See Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981); Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965). But see, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 105 S. Ct. 2914 (1985) Although Thomas, Welsh and Seeger were cases decided outside the scope of Title VII, they do form a legitimate basis for administrative determination of the applicable law. Of these three cases, only Thomas presented an actual constitutional claim. Although both Welsh and Seeger turned on determinations of Congressional intent when it enacted the Military Selective Service Act, the Supreme Court made it very clear that a contrary result in either case would have raised serious constitutional questions. See Gillette v. United States, 401 U.S. 437 (1971); Welsh v. United States, 398 U.S. 333 (1970); United States v. Seeger, 380 U.S. 163 (1965); Reply Brief of Behalf of Petitioner, Negre v. Larsen, No 70-325, Gillette v. United States, 401 U.S. 437 (1971) (companion case involving Catholic objector).

133. Equal Employment Opportunity Commission, Religious Discrimination Guidelines, 29 C.F.R. § 1605.1, et seq.; CCH Employment Practices Guide ¶¶ 3970.01 et seq.

134. 29 C.F.R. § 1605.1.

135. 29 C.F.R. § 1605.1.

136. 42 U.S.C. §§ 2000e(j), 2000e-2(e)(1).

137. 29 C.F.R. § 1605.2(c). T.W.A. v. Hardison, 432 U.S. 63 (1977).

138. See 42 U.S.C. § 2000e-2(h). See also text at note 122, supra.

139. 29 C.F.R. § 1605.2(c) provides, in relevant part:

(1) After an employee or prospective employee notifies the employer or labor organization of his or her need for a religious accommodation, the employer or labor organization has an obligation to reasonably accommodate the individual's religious practices. A refusal to accommodate is justified only when an employer or labor organization can demonstrate than an undue hardship would in fact result from each available alternative method of accommodation. A mere assumption that many more people, with the same religious practices as the person being accommodated, may also need accommodation is not evidence of undue hardship.

140. 42 U.S.C. § 2000e-1. Cf. 29 C.F.R. § 1605.1 (by negative implication). City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978); Griggs v. Duke Power Co., 401 U.S. 424 (1971); Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971).

141. See generally, Schlei, B.L. and Grossman, P., Employment Discrimination Law (B.N.A. 1976)Google Scholar.

142. Id.

143. 42 U.S.C. § 2000e-2(e) (BFOQ). Such a showing would be impossible under these facts, and the author has found no cases where this section has been found to apply. The law simply does not permit such “broad brush” classification, see, e.g., City of Los Angeles Dep't of Water & Power v. Manhart, 435 U.S. 702 (1978) (sex-based pension annuity tables), and provides special protection in those few cases where scrutiny of religious belief by an employer is clearly proper. See E.E.O.C. v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981) (reporting requirements of Title VII). Compare, 42 U.S.C. (2000e-2(e)(1) (BFOQ) and Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971) (standards for BFOQ), with 42 U.S.C. § 300a-7 (forbidding discrimination against those opposing abortion by employers and training programs receiving financial assistance from the Public Health Service). The E.E.O.C. Guidelines do not even permit employers to inquire concerning religious beliefs for statistical purposes. See Blum v. Gulf Oil Corp., 597 F.2d 396, 398 (5th Cir. 1979) (Defendant denies during discovery that it kept records reflecting religious and sexual preferences of employees); Equal Employment Opportunity Comm'n v. United States Fidelity and Guaranty Co., 14 E.P.D. ¶ 7528 (D. Md. 1977). See also United States Office of Federal Contract Compliance Regulations, 41 C.F.R. § 60-1.7 (adopting E.E.O.C. categories). In addition, some states expressly prohibit the gathering of such data, e.g., Admin. Code of City of N.Y. § B1-7.0(1) (d) and (l-a)(d); N.Y. Exec. Law § 296(1)(d) and (1-a)(d) (McKinney's 1972) (prohibition of discrimination on the basis of “creed”); Holland v. Edwards, 307 N.Y. 38 (1954); Cf., State Div. of Human Rights v. Gorton, 32 A.D. 2d 933, 302 N.Y.S. 2d 966 (2nd Dep't. 1969) (discrimination found on the basis of employer's repeated inquiries and constant harassment as to respondent's religion). Given the importance of workplace demographics for most Title VII enforcement cases involving representation, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Burns v. Thiokol Chemical Corp., 483 F.2d 300 (5th Cir. 1973); United States v. Ironworkers Local 86, 443 F.2d 544 (9th Cir. 1971), cert, den., 404 U.S. 984 (1971), such limitations force individuals to prove an intentional rather than a statistical case. See generally B.L. Schlei & P. Grossman, supra, at 1161-1195. Even though it is well settled that statistical proof is relevant to the prima facie case in a Title VII action, the lack of statistics makes the already difficult task of proving intentional religious discrimination nearly impossible. The E.E.O.C. Guidelines currently require that employee demographics be kept only in the following classifications “White,” “Black,” “Hispanic,” “Asian or Pacific Islander,” or “American Indian or Alaskan Native,” see 29 C.F.R. § 1602.20. The Guidelines do not carry the force of law and are, therefore, not binding on employers or judges. Nonetheless, the Supreme Court has indicated that they are to be given “great deference.” Griggs v. Duke Power Co., 401 U.S. 424, 433-434 (1971). A discussion on this point is beyond the scope of this article and is noted only to point out the difficulty this lack of data creates in dealing with questions of religious and national origin discrimination generally. See, e.g., Sklenar v. Detroit Bd. of Education, 497 F. Supp. 1154 (E.D. Mich. 1980).

144. 42 U.S.C. §§ 2000e(j)(burden); 2000e-2(h) (seniority). See T.W.A. v. Hardison, note 137, supra.

145. See Minkus v. Metropolitan Sanitary Dist. of Greater Chicago, 600 F.2d 80 (7th Cir. 1979); Haring v. Blumenthal, 471 F. Supp. 1172 (1979) (employer refusal to accommodate).

146. See B.L. Schlei & P. Grossman, supra note 141, at 1195-96 and sources cited. Accord Oates v. United States Postal Service, 458 F. Supp. 57 (S.D.N.Y. 1978), aff'd without opinion, 591 F.2d 1331 (2d Cir. 1978); Levine v. Navapache Hospital, 26 E.P.D. ¶ 32, 103 (D. Ariz. 1981) (anti-Semitic remark insufficient to prove religious discrimination where employee was insubordinate and disruptive; religious discrimination charge would not affect discharge for valid cause). The degree to which the courts have not settled on an approach to religious discrimination cases is illustrated by Hershinow v. Bonamarte, 735 F.2d 264 (7th Cir. 1984), a civil rights action pursuant to 42 U.S.C. § 1983. In Hershinow, a Jewish policeman unsuccessfully challenged his suspension from the police for “unprofessional conduct” during an incident where a driver stopped for a traffic violation made a series of anti-Semitic remarks about Jewish women generally. When Officer Hershinow told the driver that he was Jewish, she threatened “to get [his] Jewish wife.” The alleged “unprofessional conduct” was the officer's attempt to arrest the driver for making such a threat, and his dropping the matter after the driver apologized.

147. See e.g., Palmer v. Bd. of Education of City of Chicago, 603 F.2d 1271 (7th Cir. 1979), aff'g, 466 F. Supp. 600 (N.D. 111. 1979) (refusal to take part in essential activities); Howard v. Haverty Furniture Companies, Inc., 615 F.2d 203 (5th Cir. 1980); Jordan v. North Carolina National Bank, 565 F.2d 72 (4th Cir. 1977).

148. According to the dual commands of both the law and the pastoral letter, the Catholic employee's obligation in such a situation would be both legal and moral. The moral obligation would be to use the teachings of the pastoral letter to analyze the new job responsibilities and integrate them into one's conscience. See The Challenge of Peace ¶ 318. The legal obligation would be to disclose any decision adverse to the employer's interests in order to invoke the protections of Title VII. E.E.O.C. Religious discrimination Guidelines, 29 C.F.R. § 1605.1, et seq. See Chrysler Corp. v. Mann, 561 F.2d 1282 (8th Cir. 1977), cert, den., 434 U.S. 1039 (1978). Such disclosure might also be required in the course of qualification for necessary security clearances. See 32 C.F.R. § 156.3. It should be obvious at this point that the employer's obligations are minimal, and that the courts are unlikely to impose any obligation which would interfere with routine operations. See cases cited at notes 122, 146, supra. It should also be noted that interference with defense-related operations might be a criminal offense. See 18 U.S.C. § 2156.

149. See, e.g., Ohio Rev. Code § 4141.29.

150. 374 U.S. 398 (1963).

151. Thomas v. Review Board of the Indiana Employment Security Div., 450 U.S. 707, 718-19 (1981).

152. 450 U.S. 707 (1981).

153. The Supreme Court has recently agreed to hear two additional cases involving religious discrimination in employment and benefits. Philbrook v. Ansonia Board of Education, 757 F.2d 476, 37 F.E.P. Cases 404 (2d Cir. 1985), cert, granted, 106 S. Ct. 848 (No. 85-495) (religious discrimination under Title VII); Hobbie v. Unemployment Appeals Commission of Florida,——So. 2d——(Fla. Dist. Ct. App. 1985), juris. postponed to hearing on the merits, 55 U.S.L.W. 3058 (No. 85-993).

154. Indiana Code § 22-4-15-1 (1976 and Supp. 1978).

155. 450 U.S. at 708.

156. Id.

157. 450 U.S. at 712-13, quoting Thomas v. Review Board of the Indiana Employment Security Division, 271 Ind. 233, 391 N.E.2d 1127, 1129 (1981).

158. Id., 450 U.S. 707, at 708, 391 N.E.2d at 1131.

159. Id.

160. Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 715.

161. 374 U.S. 398 (1963).

162. United States v. Ballard, 322 U.S. 78 (1944).

163. The extension of such reasoning to the provision of governmental benefits places the Supreme Court in an interesting constitutional quandary which it has yet to resolve. Its decisions under the Establishment Clause indicate that the first amendment “bespeaks a government … stripped of all power … to support, or otherwise to assist any or all religions …’ and no State ‘can pass laws which aid one religion … [or] all religions.’” Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, at 725 (Rehnquist, J., dissenting) (quoting Everson v. Board of Education, 330 U.S. 1 (1947). A long line of cases has invalidated government financial subsidies or support for religious activity, see, e.g., Aguilar v. Felton, 473 U.S.——, 105 S. Ct. 3232 (1985); Ball v. School District of Grand Rapids, 473 U.S.—— (1985); Stone v. Graham, 449 U.S. 39 (1980); Meek v. Pittenger, 421 U.S. 349 (1975); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Lemon v. Kurtzman, 403 U.S. 602 (1971); School District of Abington Township v. Schempp, 374 U.S. 203 (1963); McCollum v. Board of Education, 333 U.S. 203 (1948), and the battle over this issue is far from over. See, e.g., Witters v. Washington Department of Services for the Blind, 106 S. Ct. 748 (1986), rev'g, 102 Wash. 2d 624, 689 P.2d 53 (1984); Goldman v. Weinberger, 106 S. Ct. 1310 (1986), aff'g, 236 U.S. App. D.C. 248, 734 F.2d. 1531 (1985); Bowen v. Roy, 106 S. Ct. 2147 (1986), rev'g and remanding, Roy v. Cohn, 590 F. Supp. 600 (M.D. Pa. 1984); Bender v. Williamsport Area School District, 106 S. Ct. 1326 (1986), vacating and remanding 741 F.2d 538 (3d Cir. 1984); Lynch v. Donnelly, 465 U.S. 668 (1984); Marsh v. Chambers, 463 U.S. 783 (1983); Mueller v. Allen, 463 U.S. 388 (1983).

In Thomas, by contrast, the Court ruled that to deny otherwise available governmental benefits on the grounds that “[w]here the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, [it] thereby put[s] substantial pressure on an adherent to modify his behavior and to violate his beliefs.” In the Court's view, such pressure constitutes a substantial and impermissible “burden upon religion” under the Free Exercise Clause of the first amendment. 450 U.S. 707, at 717-18 (majority opinion).

The difficulty with this argument is that most of the Court's holdings under the Establishment Clause involve its own attempts to condition otherwise available public assistance on an individual's willingness to give up the constitutionally protected right to choose to be educated in a religiously affiliated or private school rather than a public school. Compare Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923) (recognizing this right), with e.g., Aguilar v. Felton, supra; Ball v. School District of Grand Rapids, supra; Thomas v. Allegany County Board of Education, 51 Md. App. 312, 443 A.2d 622 (1982). But cf., Witters v. Washington Department of Services for the Blind, 106 S. Ct. 748 (1986), rev'g, 102 Wash. 2d 624, 689 P.2d 53 (1984) (individual choice to allocate otherwise available educational benefits to religious education program does not violate the Establishment Clause); Mueller v. Allen, 463 U.S. 388 (1983) (child benefit theory); Everson v. Board of Education, supra (same). This fact was not lost in Justice Rehnquist's pointed dissent in Thomas, 450 U.S. 707, at 724, 727:

This decision today illustrates how far astray the Court has gone in interpreting the Free Exercise and Establishment Clauses of the First Amendment. Although the Court holds that a State is constitutionally required to provide direct financial assistance to persons solely on the basis of their religious beliefs and recognizes the ‘tension between the two Clauses, it does little to help resolve that tension or to offer meaningful guidance to other courts which must decide cases like this on a day-today basis.’ 450 U.S. 707 at 722.

Interestingly, Justice Rehnquist would not have protected Thomas by extending the Free Exercise Clause to cover his case, but rather would have supplanted the Sherbert rule with that of Braunfeld v. Brown, 366 U.S. 599 (1961). Such a development in the law of Free Exercise would lead to a contrary result in much of the foregoing analysis. See also Goldman v. Weinberger, 106 S. Ct. 1310 (1986); Bowen v. Roy, 106 S. Ct. 2147 (1986).

One development worthy of note in this regard is the Court's decision in Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), which appears to signal a shift in the Court's thinking in matters of Free Exercise. A thorough analysis of Caldor, which invalidated, on Establishment Clause grounds, a Connecticut state labor law which required accommodation of an employee's designated Sabbath—is beyond the scope of this essay. Since the case rests on Establishment Clause analysis, rather than a Free Exercise rationale, Justice Rehnquist's view of the reach of the Free Exercise Clause has gained little, if any, support within a Court which seems far more preoccupied with marking the proper boundaries of religious accommodation under the Establishment Clause than making sense of the religious freedom guarantee implicit in the first amendment as a whole.

164. Id, 450 U.S. at 716 (majority opinion).

165. The Challenge of Peace ¶ 318.

166. Id.

167. Id. Best v. California Apprenticeship Council, 161 Cal. App. 3d 626, 207 Cal. Rptr. 863 (1984).

168. See, e.g., Peace in a Nuclear Age: The Bishops' Pastoral Letter in Perspective (Reid, C. ed. 1986)Google Scholar and sources cited therein. See also sources cited in note 126 supra.

169. Note 110, supra.

170. The Challenge of Peace ¶ 318.

171. Id.

172. See text at notes 102-105, supra.

173. See text at notes 132-139, supra.

174. Wisconsin v. Yoder, 406 U.S. 205, 215-16 (1972).

175. See United States v. Ballard, 322 U.S. 78 (1944) and text accompanying note 162, supra.

176. Thomas v. Review Board, 450 U.S. 797, supra; Wisconsin v. Yoder, supra (mere personal belief or philosophy not protected by the Religion Clauses).