The Concerns of the Founders

In the century after the founding of the British colonies in North America, the traditional governing model of establishment (of an official religion) plus conformity (to government-approved religious doctrine and practice) was replaced by a view that the government should be secular and tolerant of religious diversity. The Constitution and the Bill of Rights constructed a government that claimed no relationship to any particular religion, insisted on no test for religious office, vested in the law-making body no authority to legislate on matters of religion, and specifically prohibited the passage of any law respecting an establishment of religion or prohibiting the free exercise thereof. Even with these historic changes, the Constitution left unresolved some basic questions about the meaning of the Religion Clauses.

The Free Exercise of Religion

There have been three competing approaches to the interpretation of the Free Exercise Clause. One is that the Free Exercise Clause should protect religious belief but not religious conduct. Another is that any law that directly or indirectly burdens religious liberty should be subjected to “strict scrutiny” by judges and rarely upheld. A final approach says that the Constitution should prohibit laws that are motivated by animus toward religion or that interfere with core questions of religious doctrine, worship, or membership, but that otherwise religious individuals must follow neutral laws of general applicability. The chapter outlines arguments in favor of this latter approach and then applies this approach to cases involving religious business owners who wish to be exempted from laws requiring the provision of health benefits to employees and laws prohibiting sexual orientation discrimination in public accommodations.

The Establishment Clause

Over the last few decades, there have been three competing views of the meaning of the Establishment Clause held by members of the Supreme Court. One, favored by the liberal justices, is that the Establishment Clause should be understood as creating a wall separating church and state. An alternative view, favored by the conservative justices, is that there should be “accommodation” between religion and government. Under this view, the government violates the Establishment Clause only if it creates a church, coerces religious participation, or discriminates among religions in giving financial benefits. A third position is that the government acts unconstitutionally if it endorses religion or a specific religion. The chapter argues that separation is the best view of the Establishment Clause and applies this to prayers at government activities, religious symbols on government property, and government aid to religious institutions.

Conclusion

A common critique of a “separationist” position on matters of government and religion is that it represents inappropriate hostility toward religious people and practices. This chapter reviews and rebuts this critique. Most of the time, this critique is premised on the assumption that the government should be allowed to align itself with Christian or Judeo-Christian practices and symbols because they are part of our “heritage” and “traditions.” This chapter rejects this assumption as inconsistent with the Constitution’s expectation that government not formally align itself with particular religions. The separationist position ends the inherent hostility that such practices demonstrated toward historically excluded or disfavored religious traditions and consequently is more supportive of the great diversity of religious traditions and practices that characterizes 21st-century America. It also ensures that the government will not be embroiled in impossible decisions about which religious individuals deserve special accommodation from laws that bind everyone else.

The Competing Perspectives of the Religion Clauses

This chapter describes the recent Supreme Court cases dealing with the Establishment Clause and Free Exercise Clause of the First Amendment, while also previewing the issues likely to arise in the future. It identifies how for both of these provisions there are two competing philosophies, which are titled “accommodation” and “separation.” “Accommodationists” see little as violating the Establishment Clause but want the Free Exercise Clause to be aggressively used to create an exception to general laws based on religious beliefs. “Separationists” see the Establishment Clause as creating a secular government and reject special exceptions for religion. At this point in American history, there is a political divide: conservatives tend to favor the accommodation approach, while liberals favor the separationist view.