"Play in the joints": the struggle to define permissive accommodation under the First Amendment.

• Author: Isgur, Sarah M.

INTRODUCTION

In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v. Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping analytical frameworks. (2) Public schools in particular have been caught in the crossfire between the mandate of the Free Exercise Clause and the prohibition of the Establishment Clause. They must attempt to walk a tight rope over a jurisprudential minefield, while trying to meet the needs of increasingly diverse student bodies. (3)

As the Roberts Court begins to take a fresh look at the First Amendment, (4) Congress has recently sought to encourage the Court to clarify the scope of the "play in the joints" (5) between the Free Exercise and Establishment Clauses, and the authority of state actors to accommodate their constituents' religious practices. An important component of the balance Congress has struck in this area, 42 U.S.C. [section] 1988, rewards those successful in bringing [section] 1983 (6) suits for Establishment Clause violations with attorneys' fees.

The statute, however, does more than simply give incentives to plaintiffs bringing [section] 1983 suits. In practice, [section] 1988 has placed schools in an impossible position. With no standard to assess the risk that they will lose a [section] 1983 claim and face paying plaintiffs' legal fees, schools must either risk losing budgetary funds at a time when school programs are already being cut for lack of funding (7) or give in to the demands of plaintiffs' lawyers. As a result, powerful interest groups are given the green light to intimidate schools into accepting their interpretations of the First Amendment rather than allowing such important constitutional questions to be decided by the courts.

The proposed Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007 (PERA) would prohibit courts from awarding attorneys' fees under [section] 1988 for Establishment Clause violations, thereby removing one of the burdens on schools attempting to accommodate minority religious practices. (8) This statute would recalibrate the balance between litigants to the default American rule, (9) thus allowing each party to stand on equal footing when making strategic litigation decisions.

This Note is in three Parts. Part I examines the current state of the Court's free exercise jurisprudence and the state of permissive religious accommodation in public schools, arguing that a lack of clear guidance from the Court has led to inconsistent results that shrink the space between what the Establishment Clause forbids and what the Free Exercise Clause demands. Part II provides a case study on the state of religious accommodation in public schools, discussing the experience of a public elementary school that recently attempted to accommodate minority religious beliefs. Finally, Part III explores the Public Expression of Religion Act as a possible legislative solution to expand the ability of schools to accommodate religious practices that fall between the Establishment and Free Exercise Clauses.

1. PERMISSIVE ACCOMMODATION: RELIGIOUS FREEDOM IN A PLURALISTIC SOCIETY

   The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (10) These sixteen words were written by "a group of statesmen ... who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined." (11)

   The Court has stated that "the common purpose of the Religion Clauses 'is to secure religious liberty.'" (12) In 1952, the Court stated that "[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions ... [by] respect[ing] the religious nature of our people and accommodat[ing] the public service to their spiritual needs." (13) At the same time, however, the "vast majority of Establishment Clause cases have either cited or relied upon Jefferson's 'wall of separation' metaphor." (14) This contradiction has led to a Court that is "unwilling or unable to take a unified stand on what the Constitution really means when it comes to the relation between religion and government." (15) One federal appellate court has referred to the Court's Establishment Clause case law as "suffer[ing] from a sort of jurisprudential schizophrenia." (16)

   Nevertheless, it is clear that some accommodation of religious practices by public schools is not only permitted but required by law. (17) A high school in Richardson, Texas, for example, recently clarified its policy on prayer, recognizing Muslim students' legal right to pray during the school day and providing them with a designated place to do so. (18) Although the Court has generally held that a non-accommodation school policy does not violate the Free Exercise Clause "if [the school] has pursued its secular policies without reference or regard to religion--even if the exercise of a religion is thereby seriously disadvantaged, or even destroyed," (19) schools must show that the policy is neutral to religion. For example, if a school has forbidden students to leave class to pray, but allows students to be excused for medical reasons, extracurricular activities, and athletic practices, the school is no longer pursuing a religiously neutral policy. (20)

   Other schools have voluntarily attempted to accommodate minority-religion students through what the courts have called permissible or permissive accommodation--that is, through policies not required by the Free Exercise Clause but not forbidden by the Establishment Clause. (21) The Court has repeatedly emphasized that "[not] all benefits conferred exclusively upon religious groups or upon individuals on account of their religious beliefs are forbidden by the Establishment Clause unless they are mandated by the Free Exercise Clause." (22) Put differently, "the state may extend benefits to religious observers where denying those benefits would effectively penalize them for not violating their faith." (23)

   Rather than endorsing religion, permissive accommodations for religious observance show "secular respect for the needs of religious people." (24) As then-Professor Michael W. McConnell observed, a theory of the Establishment and Free Exercise Clauses that demands formal neutrality "would make the Religion Clauses violate the Religion Clauses, since the Religion Clauses 'single out' religion by name for special protections." (25) To avoid this absurdity, the courts must recognize that "religion is constitutionally distinctive from all other human enterprise, [that] its distinctiveness requires special constitutional treatment," (26) and that a country that leads the charge against terrorism abroad "may have more success generating loyalty [at home] from religiously diverse citizens by allowing inclusive governmental manifestations of religion than by banning them." (27)

   Both the original meaning of the Constitution and historical practice support the constitutionality of permissive accommodations. In the years before the ratification of the First Amendment, the colonies and states passed religious exemptions to protect religious observances in the few cases where religious tenets conflicted with the civil law. (28) An examination of the ratification debate suggests that "[a]t a minimum, the message of history is that religious accommodations are permissible and desirable, even if not constitutionally compelled." (29) Today, the pervasiveness of the regulatory state requires more than formal neutrality. (30) But perhaps more than any other factor, it is the "pervasive embrace of religion from the founding of the United States until the present day [that] clearly demonstrates that the Establishment Clause was intended to accommodate religion." (31)

   Permissive accommodations can take many forms. As many as seventeen universities have installed or are installing foot baths to allow Muslim students to wash their feet before praying. (32) The University of Michigan has announced that foot baths will be installed with student funds, as opposed to taxpayer dollars, "as this is an issue of trying to make ... bathrooms safer and improve plumbing--not of endorsing a religion." (33)

   Christian students, of course, are already granted accommodations by not having school on Sundays or over Christmas. (34) But in Dearborn, Michigan, where the Muslim population is as high as thirty-three percent at some schools, schools have started to offer students lunch meat slaughtered in accordance with Islamic law and to give two days off during Ramadan. (35) Other schools grant exemptions from dress codes for head coverings, release students from strenuous exercise during times of religious fasting, or decline to administer tests on Yom Kippur. (36)

   There are boundaries to what constitutes a permissible accommodation. It would be nonsensical to argue that "the free exercise clause of the first amendment was intended to give persons or churches the right to disobey laws with impunity provided they had religious reasons for wishing to do so." (37) The state may not act "entirely motivated by a purpose to advance religion," (38) or grant religious exemptions for burdens that fall equally on religious organizations and the general public. (39) Even critics, however, acknowledge that "those practices that are, beyond reasonable controversy, at the spiritual core of a religious tradition certainly deserve the most forceful and focused constitutional attention." (40)

   Continued uncertainty in the area of permissive accommodation accompanied the arrival of two new Justices to the Court in 2005. If their backgrounds are any guide, Chief Justice Roberts and Justice...