RELIGION AND THE

AMERICAN

CONSTITUTIONAL

EXPERIMENT Chapter 7

Modern Establishment Law

Mapping the Doctrinal Terrain

One of the most distinctive principles of the

American constitutional experiment in religious

liberty is the prohibition on establishments of

religion.

Many founders argued that disestablishment of

religion was ultimately the best way to protect

all the essential rights and liberties of religion.

Bringing an Establishment Clause

Case

At the heart of an establishment case is a

claimant’s challenge that the government has

made a law establishing religion or

“respecting” the same.

The challenge posed by an establishment

clause litigant is that the government has

improperly funded, supported, or endorsed

religion.

Mapping the Establishment Clause

Cases

The Court has developed a number of unique, approaches in its establishment cases.

From 1947 to the mid-1980s: 1. Separationism

2. Accommodationism

3. Neutrality

Since the mid-1980s: 4. Endorsement

5. Coercion

6. Equal treatment

7. History and tradition

Separationism

A key principle at work in modern establishment law is the separation of church and state.

This principle has firm historical roots in the writings of eighteenth-century Enlightenment and Evangelical groups.

Separationist logic found its most consistent application in a long series of cases outlawing religious officials, texts, ceremonies, and symbols from public schools.

Accommodationism

Accommodationists are the modern heirs of Puritan and Civic Republican founders.

Both Puritan and Civic Republicans argued that every polity must support some form of public religion, some common morals and mores to undergird and support the plurality of protected private religions.

Accommodationist logic found its strongest hoed in some of the Court’s cases on the place and role of government in religious schools.

Neutrality

Beginning in the early 1960s, the Court made neutrality itself a new operative principle of establishment.

The Court argue that strict separation between church and state is impossible in today’s society in which government plays such a pervasive role in day-to-day affairs.

Since the mid-1980s, individual justices have begun to experiment with alternative approaches to establishment.

Endorsement

The endorsement approach to the

establishment clause was largely the creation

of Justice Sandra Day O’Connor.

She argued that the establishment clause forbids

governmental endorsement or disapproval of

religion.

Government accommodations of religion, if

applied without discrimination for or against any

one religious person or group, are acceptable.

No Coercion

Justice Kennedy has occasionally lifted up

“coercion” as a central concern of the

establishment clause.

He argued that the establishment clause is

designed to protect liberty of conscience and

the autonomy of religious groups, and not to

purge the public square or public policy of all

religion.

Strict Neutrality

According to Justice Souder, the endorsement

approach is too unpredictable, and the coercion

approach is too narrow to outlaw more subtle

forms of religious discrimination or favoritism that

are forbidden by the establishment clause.

Justice Souder has used his neutrality approach to

challenge various governmental accommodations of

religion or cooperation with religious officials in the

public school or the public square, for such actions

favor religion over nonreligion.

Equal Treatment/Evenhanded

Neutrality

The “equal treatment” or “equal access” or

“evenhanded neutrality” approached overlaps

heavily in terminology with the neutrality

approach and is somewhat consistent with the

endorsement approach.

Equal treatment exponents allow government

funding or alliances with religion so long as

nonreligious parties that are similarly situated

receive comparable treatment.

History and Tradition

In a few recent cases, the Court has used tradition or history to uphold a practice against an establishment clause challenge, disregarding all other approaches in the process.

The Court has used arguments from history and tradition as part of broader rationales for upholding religious tax exemptions and Sabbath Day laws.