Coordinating the exercise and Establishment Clauses: a narrow Establishment Clause test for government funding of prisoner rehabilitation services by religious providers.

AuthorGarry, Patrick M.


Any time religious organizations interact with government, there looms the potential application of the Establishment Clause. (1) Its invocation becomes a near certainty whenever public funds pass to religious institutions. (2) But this is where the certainty ends, because the Court's Establishment Clause jurisprudence has become mired in a web of confusing and contradictory rules. (3) The Court has been unable to settle on any one test or model, even in cases that present similar facts. (4) As one scholar has noted, "[T]he Supreme Court's Establishment Clause jurisprudence is a mess--both hopelessly confused and deeply contradictory." (5) Because of how the Establishment Clause has been applied, it has often created a dissenter's right, which has served to restrict religious freedom just as a heckler's veto can serve to restrict free speech rights. (6)

One controversy under the Establishment Clause is whether government can contract with religious organizations on the same terms as it can with secular organizations for certain social welfare services. (7) This Article will attempt to offer a more simplified and narrowly focused Establishment Clause test, focusing particularly on government funding or accommodation of religious organizations performing social welfare work in prisons. (8) In articulating this model, the Article will elaborate on the Establishment Clause model put forth in Wrestling with God. (9) The model relies on a cooperative and coordinated relationship between the Free Exercise Clause (10) and the Establishment Clause. (11) By narrowing the application of the latter, the model in turn expands the reach of the former. Thus, when determining whether government aid to or accommodation of religious groups performing social welfare work in prisons violates the Establishment Clause, the focus should only be at one level: the level at which the government is choosing funding beneficiaries. Any concern about how the program functions regarding the actual program beneficiaries becomes a matter for the Free Exercise Clause.

Part I of this Article examines the constitutional role and purpose of the Establishment Clause. The history surrounding the debates and ratification of the First Amendment strongly suggests that the Establishment Clause works in tandem with the Free Exercise Clause to protect religious liberty, with the Establishment Clause focusing on the institutional aspect of religious liberty. As such, the Establishment Clause does not prevent government from giving aid to religious institutions, as long as that aid does not discriminate in form or against any particular institution.

After examining the general role and purpose of the Establishment Clause, Part II of the Article sets out a new model for determining the constitutionality of government funding programs in which religious organizations participate. This test seeks to simplify Establishment Clause jurisprudence, as well as accommodate the historic role that religion has played in the nation's social welfare system.


    1. The Narrow Focus on Institutional Autonomy

      One view of the Establishment Clause, persuasively articulated by Professor Steven Smith, is that the clause is jurisdictional and has no substantive meaning at all. (12) In this respect, the Establishment Clause has been interpreted as having a federalism component, insofar as it provides a "constitutional promise to the states that the federal government would not interfere with certain forms of state religion policy." (13) This is the view Justice Thomas has adopted, leading him to argue that the Establishment Clause never should have been applied to the states by way of incorporation through the Fourteenth Amendment. (14)

      Although the jurisdictional view of the First Amendment is powerfully persuasive, it is not the view taken here, especially since the adoption of that view would require that the Supreme Court do the extremely unlikely: reverse itself on the issue of incorporation. (15)

      Instead, this Article will assert that the Establishment Clause does have a substantive, though narrow, meaning. (16) This substantive meaning provides a particular command that the national government refrain from doing certain things that amount to establishing a religion. But this substantive meaning is narrow by necessity, since the Framers' views of establishment were narrowly focused on preventing an American version of the Church of England. (17) Their views were definitely not as sweeping as those of the current advocates of a wall of separation between church and state, and definitely did not include the Establishment Clause banning any government recognition of religion and religious speech. (18)

    2. The Relationship Between the Exercise and Establishment Clauses

      During the constitutional period, the impetus for the Establishment Clause grew out of the same concern that led to the Free Exercise Clause. (19) As Professor Feldman has argued, both clauses were intended to protect the freedom of religious worship and the right to exercise one's religious beliefs. (20) To the Founders, religious liberty inspired the First Amendment: the Establishment Clause, in a concern for religious liberty, dictated clear and protected institutional boundaries between the state and religion. (21) Indeed, the debates over the First Amendment religion clauses at the state ratifying conventions focused on protecting religious liberty and guaranteeing equality among religious sects. (22) This means that the two clauses are not in tension--contrary to the position taken by the separationists that the Establishment Clause (a protection from religion) counteracts the Free Exercise Clause (a protection for religion). (23)

      Given that both clauses protect religious liberty, the question is what differentiates the two clauses in the way they protect that liberty. As outlined in Wrestling with God, the Free Exercise Clause protects individual freedom, while the Establishment Clause protects the institutional autonomy of religious organizations. (24) The most obvious way in which this institutional protection applies is through a kind of equal protection application. Significant historical research supports the notion that the Establishment Clause requires not that the government refrain from any aid to or recognition of religion, but rather that when doing so it treat all religious sects the same and not give preferential treatment to any select sect. (25) This equal protection aspect was "designed to buttress free exercise by requiring the federal government, to the extent its legislation touched religion, to treat all faiths in a non-discriminatory manner." (26)

      The Establishment Clause has an institutional focus, protecting the autonomy of religious institutions. (27) It does not reflect a mistrust of religion, nor does it serve to protect a secular society from the influence and presence of religion as various justices and commentators have advocated, but rather it serves to protect religious institutions from intrusive or discriminatory treatment by the government. (28) It protects against the government improperly involving itself in the functions, powers, or identity of a religious organization. (29) The Establishment Clause aims to keep a religious institution as free as possible to pursue its chosen mission. (30) This interpretation is much narrower than the separationist theory espoused in cases adhering to a "wall of separation" approach, which uses the clause to essentially mandate a radical transformation of American society in which religion is separated from civil society, and to redefine society along strictly secular lines. (31)

    3. An Improper Establishment Requires More Than a Momentary Interaction Between Government and Religion

      Another element of the Establishment Clause model set forth in Wrestling with God is that an improper establishment of religion, by the very definition of the word "establishment," requires something more than a transitory or isolated association between government and a particular religious sect. (32) There must be something "established," something evidencing a long-term institutional association between the state and a religion. For instance, if a Jewish group erects a menorah display over Hanukkah on the courthouse grounds, such an act can hardly be said to constitute an establishment, since it is of a transitory nature and shows no evidence of there being any permanent relationship between the state and the Jewish religion. (33)

      In connection with this view of establishment as a long-standing associational involvement between the government and a religion, any particular government-religion interaction should not be viewed in isolation--it should not be viewed as single-handedly defining the nature of the state's overall policy and intent with regard to that religion. (34) This is one of the faults of the endorsement test. (35) According to that test, a reasonable observer could conclude, after one viewing of a Christmas creche display on public grounds, that in fact the government had aligned itself with the Christian religion in a way that amounted to an improper establishment of religion. (36) But how reasonable could that person be if that one, momentary experience would lead to such a conclusion? Should not a reasonable person be held to the duty of looking around to see if other indications of this suspected establishment exist? Conversely, should not a reasonable person be charged with the responsibility of perceiving the obvious existence of other factors that might negate any conclusion of establishment?

    4. The Court's Wrong Turn in Its Establishment Clause Jurisprudence

      The requirement of a longer-term association of government and religion, extended beyond some isolated incident of government-religion interaction, will...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT