Religion Clauses in Interaction

• Author: Jesse H. Choper
• Pages: 2175-2176

Page 2175

There has been a long-term tension between the FIRST AMENDMENT'S two religion clauses, one forbidding government to promote or "establish" religion, the other forbidding government to abridge the "free exercise" of religion. On the one hand, under the much-criticized (but still formally governing) LEMON TEST, any government action whose purpose or primary effect is to aid religion violates the ESTABLISHMENT CLAUSE. On the other hand, under the Sherbert?Yoder test (the rule for a quarter century prior to 1990), the free exercise clause periodically required the state to accommodate religion.

Unfortunately, the Supreme Court's few direct confrontations with the problem before the mid-1980s had been unsatisfying. It was not until Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos (1987) that the Court addressed the issue at any length. In upholding Congress's exemption of religious groups from a general statutory ban on religious discrimination in employment, the Court simply announced that "under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." This conclusory analysis prompted Justice SANDRA DAY O'CONNOR, who concurred separately, to accurately observe:

On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an "accommodation" of free exercise rights.

Several major developments during the past decade have produced some thoughtful approaches to resolving the conflict between the clauses. First, the highly controversial ruling in EMPLOYMENT DIVISION, DEPARTMENT OF HUMAN RESOURCES OF OREGON V. SMITH (1990) held that the free exercise clause affords no right to a religious exemption from a neutral law (i.e., one of general applicability) even though it imposes a substantial burden on religious practice. Abandoning the Sherbert?Yoder test?which had required exemptions from generally...