Reconstructing the establishment clause: the case against discretionary accommodation of religion.

• Author: Lupu, Ira C.

For almost fifty years, judges, constitutional scholars, and informed citizens have been drawn to the blinkered view that the First Amendment's religion clauses involve the separation of church and state.(1) Derived primarily from the Supreme Court's century-bridging references to Jefferson's metaphorical wall,(2) the motifs of distance and dissociation reflected in the idea of separation have been among the enduring images of contemporary constitutional law.

The metaphor, like all such creatures, channeled and therefore limited thought. Even worse, its image was idealized and thoroughly unreal. For both individuals and communities, the metaphor suggested a psychologically and socially impossible discontinuity between the sacred and the secular. Human beings cannot neatly compartmentalize their religious and nonreligious thoughts; communities do not segregate their religious institutions and leaders from others.(3) Moreover, the metaphor does not account for all of the decisional law(4) and is unreasonably tilted toward nonestablishment and away from free exercise. The idea of separation of church and state thus presents an image untrue to both life and law. In this respect, it may be headed for a fate similar to that which befell its cousin from the field of race law--the doctrine of separate but equal.(5)

The constitutional era in which separation is the dominant theme appears to be over. Clouded by inevitable tendencies toward oversimplification, however, the debate about religion and the Constitution is once again being framed in overly narrow terms. Rather than strike out bravely toward a new, more refined approach to constitutional questions concerning religion, judges and commentators appear to be in search of a neat replacement for separation.

As a result, the concept of accommodation has been rapidly gaining ground as the central motif of religion clause thought. The idea of accommodation of religion is complex in its details, but simple in its basic premises. According to the accommodationists, the religion clauses have the unitary focus of facilitating the people's religious liberty, and government promotion of such liberty is in the service of constitutional values. The Free Exercise Clause should therefore advance, and the Establishment Clause should recede, in constitutional prominence.(6)

I would like to say that this movement toward accommodation is an improvement over the prior state of affairs, but I believe it is not. The sense of harmony and tolerance evoked by the image of accommodation is undoubtedly attractive on the surface. Nevertheless, when compared with separation, the new image is equally limiting, equally untrue to large portions of the relevant case law, and unreasonably tilted in the opposite direction--that is, toward free exercise and away from nonestablishment.

In what follows, I stake out one version of the anti-accommodationist position.(7) I do not intend, however, to embrace the Supreme Court's unsound decision in Employment Division, Department of Human Resources v. Smith,(8) which (paradoxically, it may seem at first to some) has weakened my argument by eliminating what I view as the only appropriate occasion for government accommodation of religion. Indeed, the best I can say for Smith is that it has damaged the case for accommodation more than it has undercut the case against it.

The title of this piece suggests hope as much as criticism. My view is not so much against the idea of accommodation as it is for the idea of balance in our understandings of the religion clauses. Taken together, the clauses are most persuasively construed as mandating a regime of equal religious liberty. Under such a regime, every person may pursue religious freedom to the extent it is fully compatible with the equal pursuit of religious freedom by others.(9) If accommodation is simply an overstride toward such a balanced view, the concept may yet prove salutary. If, however, accommodation represents a set of ideas driven by zeal for religious liberty and is consequently insensitive to concerns for equal respect in the actual distribution of such liberty, the concept bears within it the seeds of great harm.

This Article proceeds as follows. Part I defines accommodation and highlights recent decisional law on the subject. Part II explores the purposes of the religion clauses, with particular concern for the narrowness of the accommodationist vision of those purposes. Part III focuses on Smith and its special significance for the constitutional law of religious accommodation. Part IV then responds to two arguments frequently advanced by accommodationist forces: one argument concerns religion clause conflict, and the other is about coercion as a limiting principle in Establishment Clause adjudication.

The bulk of the paper resides in Part V, The Case Against Accommodation. Part V(A) presents the normative case, in which I distinguish substantive and formal versions of religious equality and offer both constitutional and nonconstitutional grounds for preferring the latter. Part V(B) extends the argument into the institutional case against accommodation, in which I argue for the intrinsic superiority of adjudication over legislation as the instrument for special treatment of religion. Finally, in Part V(C), this Article explores the implications of this institutional proposition for judicial-legislative cooperation in affording distinctive treatment to religion, with particular attention to the significance of Smith.

1. ACCOMMODATION DEFINED

   Before I can sensibly proceed, a definition of terms is in order. For me, government accommodation of religion has a straightforward, two-part meaning. The phrase refers to actions taken by the state or its agents that 1) respond affirmatively to religion-based claims for exceptional treatment, which would not be afforded but for the religious quality of the claims or the religious character of the institution(s) advancing the claims,(10) and 2) are not required by the Free Exercise Clause or any other provision of the Constitution.(11)

   The definitional requirement that accommodation requests be claims for special or exceptional treatment helps to bound the category with which we are concerned. Most importantly, this criterion excludes general programs of government benefits, designed for purposes other than aiding religion, for which religious individuals or institutions may (along with others) be eligible. Thus, the inclusion of religious schools or charities in general programs of aid is not an "accommodation" when such inclusion is based on something other than the institution's religious character.

   The second element of the definition, that the claim not be one of constitutional right, may be of greater importance than the first. Of course, many accommodation claims are advanced explicity or implicitly in the alternative. A person who believes that government should recognize conscientious objection to conscription for military service, for example, may argue that the government is obliged by the Constitution to permit objector status, and that government, in any event, should recognize such status for reasons of policy, prudence, and/or subconstitutional principle. The distinction between these arguments is crucial. When government is acting to fulfill its constitutional responsibilities or, to put it in more usual terms, to respect constitutional rights, I am emphatically for the result rather than against it. When government goes beyond what the Constitution compels, however, it is privileging religious claims in ways likely to offend constitutional norms and to reflect poor statecraft.

   Thus, the zone of accommodation cannot be described without first establishing the baseline of constitutional right to exceptional treatment for religion. We must first understand what state policies the Free Exercise Clause mandates before we can begin to describe any additional state policies that may be supported by the doctrine of accommodation. Attaining such an understanding has always been difficult as a matter of positive law and is now even more challenging as a result of the Smith decision. Prior to Smith, the descriptive difficulty arose primarily from the gap between the standards the Supreme Court said it was applying and the outcome of those applications. Time after time, the Court found ways--typically, exceptions to the presumptively applicable free exercise standard or unjustifiably weak applications of it-to conclude that the free exercise claim was nonmeritorious.(12) After Smith, the free exercise standard has been still further defanged. In a world in which no mandatory state policies exist, all government action beneficial to religion qua religion is above the baseline, and, therefore, presumptively within the zone of permissive accommodation.

   The implications of Smith are crucial to the accommodation argument, and I address them later in the Article. Smith, however, is poor law, and I do not want to build the case against accommodation with Smith as my albatross.(13) For purposes of my normative argument, therefore, it may be best simply to assert what I believe the Free Exercise Clause requires of the government. First, the clause prohibits the government from singling out religion for especially bad treatment.(14) This prohibition includes overt mistreatment of religion--for example, the outlawing of taking communion, performing ritual circumcision, or praying to idols--as well as actions taken out of covert hostility, such as a zoning board acting solely out of religious animus in denying permission to a group seeking official permission to build a church in a particular place. Political decisions that intentionally disfavor religion violate the Free Exercise Clause, unless these decisions are mandated by the Establishment Clause.(15)

   Second, and far more controversially, I believe, contrary to Smith, that the Free Exercise...