Accommodation of Religion

• Author: Steven D. Smith
• Pages: 24

Page 24

In the seminal case of EVERSON V. BOARD OF EDUCATION (1947), the Supreme Court asserted that the FIRST AMENDMENT contains a principle of SEPARATION OF CHURCH AND STATE that in turn entails a prohibition on GOVERNMENTAL AID TO RELIGIOUS INSTITUTIONS. But the Justices have also cautioned that an excessive emphasis on separation might amount to public hostility, or "callous indifference," toward religion. This concern soon led the Court to qualify the "separation" theme by explaining that the First Amendment contemplates governmental "accommodation" of religion. In ZORACH V. CLAUSON (1952), for example, Justice WILLIAM O. DOUGLAS wrote for the Court that government "follows the best of our tradition" when it "respects the religious nature of our people and accommodates the public service to their spiritual needs." The early cases thus established the two poles that have shaped modern debate about RELIGIOUS LIBERTY, and around which opposing legions of "separationists" and "accommodationists" have aligned themselves.

A central difficulty has been to explain how mere accommodation differs from the "advancement" or "endorsement" of religion that the Court has declared impermissible. Thus far, neither judges nor legal scholars have managed a satisfactory account of this distinction. The Court has said that a law is a permissible accommodation if it merely lifts a government-created burden on religion without affirmatively assisting religion. But in an era of pervasive governmental regulation and subsidization, both direct and indirect, this line is difficult to discern. So, for example, the Court struck down a state provision exempting religious publications from sales tax?surely a government-imposed burden?on the ground that the exemption impermissibly advanced religion.

As an alternative, Justice SANDRA DAY O'CONNOR has suggested that the appropriate distinction is between those accommodations that "endorse" religion and those that do not. But of course some citizens will likely perceive almost any official accommodation of religion as an endorsement. Consequently, the application of O'Connor's test turns on highly artificial discussions of whether a hypothetical "reasonable" and properly, but not excessively, informed observer would perceive an endorsement.

Recently, some scholars have suggested that distinctions should be drawn in accordance with a policy of "substantive neutrality"?a position based on the premise that the...