The Religion Clauses of the First Amendment: Reconciling the Conflict

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1 Berkeley Law Berkeley Law Scholarship Repository Faculty Scholarship The Religion Clauses of the First Amendment: Reconciling the Conflict Jesse H. Choper Berkeley Law Follow this and additional works at: Part of the Law Commons Recommended Citation Jesse H. Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L. Rev. 673 (1979) This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact

2 ARTICLE THE RELIGION CLAUSES OF THE FIRST AMENDMENT: RECONCILING THE CONFLICT*t Jesse H. Choper** The Religion Clauses of the first amendment, having been held fully applicable to the states 1 as well as to the national government, forbid government from enacting laws "respecting an establishment of religion, or prohibiting the free exercise thereof." 2 In this paper, I wish to confront the ineluctable tension that exists between the two provisions-a conflict that the Court has conceded in observing that the Religion Clauses "are cast in absolute terms, and either..., if expanded to a logical extreme, would tend to clash with the other." I. In the main, the Court has tended to view the Religion Clauses as embodying two independent mandates. Consequently, it has developed separate tests for determining whether government action violates either provision. As for the Establishment Clause, the three-prong test that has evolved is that, in order to pass constitutional muster, government action (1) must have a secular, rather than a religious, purpose, (2) may not have the principal or primary effect of advancing or inhibiting religion, and (3) may not involve "excessive entanglement" between government and * This paper, slightly modified, was delivered as the Louis H. Caplan Lecture, at the University of Pittsburgh School of Law, April 10, t Copyright 1980 by University of Pittsburgh. All rights reserved. ** Professor of Law, University of California, Berkeley; B.S. 1957, Wilkes College; LL.B. 1960, University of Pennsylvania; D.Hu.Litt. 1967, Wilkes College. I wish to thank Judith Z. Gold of the class of 1980 for her exceptionally able and extremely valuable assistance in the preparation of this paper. I have greatly benefitted from many discussions with my colleague, Michael E. Smith, on the subject. My thanks also to John E. Coons, Paul J. Mishkin and Stephen D. Sugarman for their very helpful criticism of an earlier draft. 1. See generally School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, (1963). 2. U.S. CONsT. amend. I. 3. See Walz v. Tax Comm'n, 397 U.S. 664, (1970).

3 674 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 religion. 4 As for the Free Exercise Clause, the Court has made clear that if the purpose of a law "is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid." 5 It is equally plain that a law that attempts to regulate religious beliefs is unqualifiedly forbidden. Very few laws, however, single out religion for adverse treatment, deliberately prejudice persons because of their particular religious scruples, or penalize religious beliefs. 8 Rather, most issues under the Free Exercise Clause arise when a general government regulation, undertaken for genuinely secular purposes, either penalizes (or otherwise burdens) conduct that is dictated by some religious belief or specifically requires (or otherwise encourages) conduct that is forbidden by some religious belief. The Court has recognized that while "[the freedom to believe] is absolute..., in the nature of things, the... [freedom to act] cannot be." 9 In this context, the Court has employed "a balancing process"' 10 and ruled that if a government regulation of general applicability burdens the exercise of religion then, in the absence of a state interest "of the highest order,"" government must accommodate the religious interest by granting it an exemption from the general rule. Thus, the seemingly irreconcilable conflict: on the one hand the Court has said that the Establishment Clause forbids government action whose purpose is to aid religion, but on the other hand the Court has held that the Free Exercise Clause may require government action to accommodate religion. Unfortunately, the Court's separate tests for the Religion Clauses have provided virtually no guidance for determining when an accommodation for religion, seemingly required under the Free Exercise Clause, constitutes impermissible aid to religion under the Establishment Clause. 12 Nor has the Court adequately explained why aid to religion, seemingly violative of the Establishment Clause, is not actually re- 4. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, (1971). 5. Braunfeld v. Brown, 366 U.S. 599, 607 (1961). 6. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 7. But see McDaniel v. Paty, 435 U.S. 618 (1978). 8. But see West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 9. Cantwell v. Connecticut, 310 U.S. 296, (1940). 10. Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). 11. Id. at See, e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963).

4 1980] RELIGION CLAUSES quired by the Free Exercise Clause. 13 1I. Nearly twenty years ago, I proposed an interpretation of the Establishment Clause for testing the validity of religious practices in the public schools. 14 The interpretation was that such activities should be held unconstitutional if (1) they were solely religious, that is, if their "primary" purpose was religious even if "derivative" secular benefits might flow from their promotion of religion, 15 and if (2) they were likely to compromise or influence students' religious beliefs. Under this test, students' religious beliefs are "compromised" if they do something that is forbidden by their religion; their religious beliefs are "influenced" if they engage in religious activities that, although not contrary to their religion, they would not otherwise undertake. Several years later, I proposed a rule for testing the validity of government financial aid to religious institutions, particularly parochial schools. 6 It reasoned that government expenditures for "solely religious" purposes-as ordinarily evidenced by their "primary" effect even if "derivative" public goals were advanced 17 -result in coercing taxpayers to support religion and thereby infringe religious liberty. My approach concluded that government assistance to parochial schools should not be held violative of the Establishment Clause so long as it did not exceed the value of the secular educational services provided by the schools because, in such case, the primary purpose and effect was nonreligious. Taken together, both proposals encompass a single principle: the Establishment Clause should forbid only government action whose purpose is solely religious and that is likely to impair religious freedom by coercing, compromising, or influencing religious beliefs. My main goal in this paper is to suggest why I believe this principle should also be used to resolve the conflict between the Establishment and Free Exercise Clauses. 13. See, e.g., Lemon v. Kurtzman, 403 U.S. 602 (1971); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); McCollum v. Board of Educ., 333 U.S. 203 (1948). 14. Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 MINN. L. REv. 329 (1963). 15. Id. at Choper, The Establishment Clause and Aid to Parochial Schools, 56 CALIF. L. REv. 260 (1968). 17. Id. at

5 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 III. It is both appropriate and useful to begin all constitutional interpretation by consulting the historical intent of the Framers. Indeed, perhaps "[n]o provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment." '18 But, as is so often true, "[a] too literal quest for the advice of the Founding Fathers [may be] futile and misdirected," 19 because there is no clear record as to the Framers' intent, and such history as there is reflects several varying purposes. 2 For example, a number of states had established churches until long after the Revolution. 21 There is some evidence that an original purpose of the Establishment Clause was to immunize these state-sponsored churches from the authority of the newly ordained national government.1 2 After application of the Establishment Clause to the states through the fourteenth amendment, 2 8 the fulfillment of this original purpose becomes painfully complicated. Thus, dogmatic insistence on implementing the Framers' precise intent, if such is discernible, might jeopardize values that we now perceive as unconditionally protected by the Establishment Clause. Perhaps because our nation has become far more religiously heterogeneous, "practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to...the deeply devout and the nonbelievers alike." 2 Moreover, even if the Framers' intent were unanimous, unambiguous, and totally in accord with contemporary values, it could provide no ready answers for the resolution of many of today's church-state problems. For example, since public education was virtually nonexistent until long after the Revolution, 25 the Framers could have no specific position on the subject of religious activities in the public schools-one of the most frequently litigated and 18. Everson v. Board of Educ., 330 U.S. 1, 33 (1947) (Rutledge, J., dissenting). 19. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 237 (1963) (Brennan, J., concurring). 20. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 14-3 (1978). 21. L. PFEFFER, CHURCH, STATE, AND FREEDOM 141 (rev. ed. 1967). 22. Compare W. KATz, RELIGION AND AMERICAN CONSTITUTIONS 8-10 (1964) with M. HOWE, THE GARDEN AND THE WILDERNESS 23 (1965). 23. See Everson v. Board of Educ., 330 U.S. 1 (1947). 24. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 241 (1963) (Brennan, J., concurring). 25. See id. at 238 & n.7.

6 1980] RELIGION CLAUSES emotionally charged modern Establishment Clause questions. Nor did the Framers foresee the development of such social and regulatory programs as unemployment insurance, 26 antidiscrimination laws, 27 or the National Labor Relations Act, 8 all of which have generated thorny church-state issues. Nonetheless, history does "divulge a broad philosophy of church-state relations. 29 One tenet that emerges most clearly is that a central purpose of the Establishment Clause (as well as of the Free Exercise Clause) was to protect religious liberty-to prohibit the coercion of religious practice or conscience, 30 a goal that remains paramount today. 3 1 "Cruel persecutions," observed the Court in its first major Establishment Clause decision, "were the inevitable result of government-established religions. 3 2 As Justice Brennan concluded in his influential examination of the Religion Clauses, "[the Establishment and Free Exercise Clauses], although distinct in their objectives and their applicability, emerged together from a common panorama of history. The inclusion of both restraints... shows unmistakably that the Framers of the First Amendment were not content to rest the protection of religious liberty exclusively upon either clause. 3 3 The practice perceived by the Framers as perhaps the most serious infringement of religious liberty sought to be corrected by the Establishment Clause was forcing the people to support religion by the use of compulsory taxes for purely sectarian purposes." Thus, Madison abhorred obliging "a citizen to contribute three pence only of his property" 5 for nonsecular ends; Jefferson 26. See Sherbert v. Verner, 374 U.S. 398 (1963). 27. See Trans-World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). 28. See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). 29. C. ANTiEAU, A. DowNEY, & E. ROBERTS, FREEDOM FROM FEDERAL ESTABLISHMENT at xi (1964). 30. See Engel v. Vitale, 370 U.S. 421, (1962); Zorach v. Clauson, 343 U.S. 306, (1952); Everson v. Board of Educ., 330 U.S. 1, 8-11 (1947); Id. at (Rutledge, J., dissenting); L. PFEFFER, CHURCH, STATE, AND FREEDOM 122 (1953); Dunsford, The Establishment Syndrome and Religious Liberty, 2 DUQ. L. REv. 139, (1964); Katz, Freedom of Religion and State Neutrality, 20 U. CM. L. REv. 426, 428 (1953). 31. See Choper, supra note 14, at & n Everson v. Board of Educ., 330 U.S. 1, 12 (1947). 33. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 232 (1963) (Brennan, J., concurring). 34. See Kauper, Church and State: Cooperative Separatism, 60 MICH. L. REv. 1, 5-6, 9 (1961); Pfeffer, Some Current Issues in Church and State, 13 W. RES. L. REV. 9, 18 (1961). 35. Everson v. Board of Educ., 330 U.S. 1, app. (1947) (Rutledge, J., dissenting)

7 678 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 insisted that "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;" 6 and the Court has repeatedly expressed this basic ideal by confirming that the Establishment Clause means at least that "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. ' 37 While public subsidy of religion may not directly influence people's beliefs or practices, it plainly coerces taxpayers either to contribute indirectly to their own religions or, worse, to support sectarian doctrines and causes that are antithetical to their own convictions. As a matter of both historical design and present constitutional policy, the Establishment Clause forbids so basic an infringement of religious liberty. IV. My proposals-based on the principle that the Establishment Clause should forbid government action whose purpose is religious and that is likely to impair religious freedom-sought to fulfill the central aim of the Religion Clauses: protection of religious liberty. Before exploring how this principle may help resolve the tension between the Establishment and Free Exercise Clauses, I should like briefly to compare my proposals to the paths the Court has taken in the past two decades. With respect to religious practices in the public schools, most of the results reached by the Court-invalidating "on-premises" released time, and prayer and Bible reading programs 3 8-have been in accord with my approach; but the Court's rationale, at least read literally, has been somewhat at variance with it. My proposed standard would forbid public school practices only when sectarian purpose is coupled with an infringement of religious liberty-i.e., when it is shown that religiously motivated programs such as released time, Bible reading, and prayer will likely compromise or influence religious beliefs. Under the Court's articulated (Memorial and Remonstrance Against Religious Assessments 3). 36. An Act for Establishing Religious Freedom, 12 W. HENING, STATUTES AT LARGE, LAWS OF VIRGINIA 84, 85 (Richmond 1823). 37. Everson v. Board of Educ., 330 U.S. 1, 16 (1947). 38. McCollum v. Board of Educ., 333 U.S. 203 (1948) (released time); Engel v. Vitale, 370 U.S. 421 (1962) (prayer); School Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963) (Bible reading).

8 1980] RELIGION CLAUSES test, however, religious purpose alone condemns the programs. 39 I have already indicated how this position raises severe problems in reconciling the tension between the Establishment and Free Exercise Clauses, and I shall expand on this shortly. At this point, however, it is enough to observe that although the Court has stated in its major opinions in this area that coercion of religious belief-which is central under my proposal-is unnecessary for an Establishment Clause violation, 40 it has often carefully catalogued the coercive elements of the programs that it has held invalid. 4 Indeed, in Zorach v. Clauson,' 2 in which the Court upheld an "offpremises" released time program, the Court effectively conceded that the program's purpose was religious, 43 but emphasized, wrongly in my view, 44 that it involved no "coercion to get public school students into religious classrooms. 45 Thus, on closer examination, I find substantial consonance between the Court's approach and my own. With respect to aid to parochial schools, however, I must take considerably less comfort both from what the Court has said and also from what it has done. Under my proposal, since spending public funds for religious purposes is, as has been discussed,' 46 a form of religious coercion, the Establishment Clause would forbid government aid to church-related schools if the money were used for sectarian ends. A state appropriation that would be used in this way would be government action for religious purposes with the consequent threat to religious freedom. If it could be shown, however, that the state receives full secular value for its money, then its expenditure would be for a nonreligious purpose and there would be no danger to religious liberty-and thus there would be no violation of the Establishment Clause. Under my proposal, all of the many aid programs to elementary and secondary parochial schools that the Court has invalidated since would have 39. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963). See also text accompanying note 4 supra. 40. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, (1963); Engel v. Vitale, 370 U.S. 421, (1962). 41. Engel v. Vitale, 370 U.S. 421, (1962) U.S. 306 (1952). 43. Id. at See Choper, supra note 14, at U.S. at See notes and accompanying text supra. 47. For a summary of these decisions, see W. LoCKHART, Y. KAMisAR & J. CHOPEH, CONSTrTUIONAL LAW: CASES-COMMENTS-QUESTIONS (5th ed. 1980).

9 680 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 probably survived constitutional challenge. How has the Court's approach differed from mine? In every case in which it has disapproved of aid to parochial schools, it has found that the first prong of its test-that the program have a secular purpose-has been met. In some of the cases, however, the Court has condemned the programs because they failed the second prong of its test; i.e., the Court has found that the aid plans might have the primary effect of advancing religion (an effect which, if not prevented by the state, would also produce invalidity under my standard). But, as we shall see, it has been the third prong of the Court's Establishment Clause test-"excessive entanglement" between government and religion-that has effectively posed the greatest obstacle for aid to parochial schools. Since this factor plays no proscriptive role under my proposal, it accounts for the fundamental difference between the Court's approach and mine. The Court has observed that the major beneficiaries of aid to nonpublic elementary and secondary schools are those operated by the Roman Catholic Church and has found that Catholic schools are "permeated" with religion. The Court has therefore reasoned that in order to insure that government aid does not advance the inculcation of religious doctrine (and thus run afoul of the second prong of its test), the state would have to engage in comprehensive surveillance of the recipient schools. This would foster an impermissible degree of administrative entanglement between church and state (thus failing the third prong of the Court's test). As a consequence, a state that wishes to aid parochial schools is faced with an insoluble dilemma. Since church-related elementary and secondary schools are presumably "permeated" with religion, the Court often requires that even the most neutral forms of aid 4 be continually monitored so as to ensure that they will not be used for religious purposes; but such monitoring engenders "excessive entanglement" and thus renders the program invalid. V. Without cataloguing the school aid cases in detail, I think it is fair to say that application of the Court's three-prong test has generated ad hoc judgments which are incapable of being reconciled on any principled basis. For example, a provision for therapeutic and diagnostic health services to parochial school pupils by public em- 48. See, e.g., Meek v. Pittenger, 421 U.S. 349 (1975) (maps, tape recorders).

10 1980] RELIGION CLAUSES ployees is invalid if provided in the parochial school, 49 but not if offered at a neutral site, even if in a mobile unit adjacent to the parochial school. 50 Reimbursement to parochial schools for the expense of administering teacher-prepared tests required by state law is invalid, 51 but the state may reimburse parochial schools for the expense of administering state-prepared tests. 52 The state may lend school textbooks to parochial school pupils because, the Court has explained, the books can be checked in advance for religious content and are "self-policing"; 53 but the state may not lend other seemingly self-policing instructional items such as tape recorders and maps." The state may pay the cost of bus transportation to parochial schools, 5 which the Court has ruled are "permeated" with religion; but the state is forbidden to pay for field trip transportation visits "to governmental, industrial, cultural, and scientific centers designed to enrich the secular studies of students." 56 I hope that these illustrations are sufficiently striking to demonstrate the unpredictability of the Court's approach. Indeed, in an unusually candid recent dictum, the Court forthrightly conceded that its approach in this area "sacrifices clarity and predictability for flexibility" 5 7 -a euphemism, I suggest, for expressly admitting the absence of any principled rationale for its product. VI. The conceptual chaos forged by the Court's test-effectively attributable to its "entanglement" prong-is not, however, its chief shortcoming. A more fundamental objection is that avoidance of administrative entanglement between government and religion neither should, nor can, represent a value to be judicially secured by the Establishment Clause. Administrative entanglement between government and religion has sometimes been seen as threatening the values underlying the constitutional separation of church and state because of the fear that religious institutions will capture their public regulators 49. Id. 50. Wolman v. Walter, 433 U.S. 229 (1977). 51. Levitt v. Committee for Pub. Educ., 413 U.S. 472 (1973). 52. Committee for Pub. Educ. v. Regan, 444 U.S. 646 (1980). 53. Board of Educ. v. Allen, 392 U.S. 236 (1968). 54. See note 48 supra. 55. Everson v. Board of Educ., 330 U.S. 1 (1947). 56. Wolman v. Walter, 433 U.S. 229, 252 (1977). 57. Committee for Pub. Educ. v. Regan, 444 U.S. 646, 662 (1980).

11 682 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 by taking advantage of the widely noted tendency of administrators to develop a mutuality of interest with those they are supposed to regulatea 8 This concern, however, is unfounded, both doctrinally and empirically. First, it has long been held that the Constitution permits the state to regulate church-related institutions even if it provides them no financial assistance whatever.5 9 Second, parochial school curricula, for example, have long been regulated, 60 without any significant evidence of the church capturing the state. 1 Thus, while the values underlying the Establishment Clause should forbid the state from abdicating to the church by permitting public funds to be used for religious purposes, they should not prevent meaningful government regulation of churchrelated institutions. Another evil, it is often argued, arising from entanglement is that administrative regulation impairs the free exercise of religion. 62 Here, again, there is no real evidence that the regulation of religious bodies which has taken place-albeit in the absence of substantial amounts of aid 6 s-has produced this result. If it did, it would be unconstitutional whether or not the regulation were tied to aid. Although, "as a political matter, aid may prompt constitutional regulation theretofore absent,... [t]his consideration is relevant to the question of whether a religious institution should apply for aid; it is not relevant to whether the aid may constitutionally be granted. '64 Another form of administrative entanglement occurs when the state seeks to distinguish religion from nonreligion in order to grant a religious exemption from burdensome civil regulations. Although government scrutiny of religious beliefs and practices may 58. J. NOWAK, R. ROTUNDA, & J. YOUNG, CONSTITUTIONAL LAW 865 & n.5 (1978), and authorities there cited. 59. Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925). 60. A 1964 study of state curriculum requirements for non-public schools showed that 41 states provided for some regulation. See Stolec, Non-Public Schools: What Must They Teach? 92 SCHOOL & Soc'y 274, 275 (1964). 61. It may be argued that when regulation is coupled with aid, the religious institution has a greater incentive to attempt a "capture." But when compliance with regulation not accompanied by aid is costly, the incentive is substantially the same. 62. See Everson v. Board of Educ., 330 U.S. 1, 53 (1947) (Rutledge, J., dissenting); Id. at (Jackson, J., dissenting); Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REv. 1, 4 (1961). 63. See note 61 supra. 64. Schwartz, No Imposition of Religion: The Establishment Clause Value, 77 YALE. L.J. 692, 710 (1968).

12 1980] RELIGION CLAUSES be a sensitive and unwelcome task, its "necessity arises out of the constitutional language itself, which sets down religion as a subject for special treatment." 65 Here, again, the Court has never doubted that government may become entangled with religion in this way." 6 In sum, scrupulous avoidance of all administrative "entanglement" between church and state might well require abandonment of virtually all regulation of religious activities, even for such desirable purposes as ensuring minimum educational standards for all school children. Even avoidance of only "substantial" entanglement would probably prevent government from characterizing certain beliefs as religious in order to exempt them from onerous and unnecessary secular rules. This would result either in confining such exemptions to members of long-established churches whose religiosity was universally conceded, or, indeed, in eliminating Free Exercise Clause exemptions altogether. I believe that avoidance of church-state entanglement, at the expense of forsaking legitimate secular pursuits or the more general value of preserving religious liberty, is mandated neither by the Establishment Clause nor good sense. VII. The "entanglement" prong of the Court's Establishment Clause test also contains a somewhat separate element, which may be labeled "political divisiveness," under which government action may be held invalid if it promotes political fragmentation along religious lines. 67 It is somewhat unclear whether the Court is using this "political divisiveness" as an independent test of constitutionality, a "warning signal" 6 s calling for stricter application of other tests, or only to reinforce its conclusions. I believe, however, that, like its companion element of administrative entanglement, avoidance of political strife along religious lines neither should, nor can, represent a value to be judicially secured by the Establishment Clause. Indeed, if government were to actually ban religious conflict in the legislative process, this would raise serious questions under those provisions of the first amendment that guarantee 65. Mansfield, Book Review, 52 CALIF. L. REv. 212, 216 (1964). 66. See Wisconsin v. Yoder, 406 U.S. 205, 240 (1972) (White, J., concurring). 67. See Lemon v. Kurtzman, 403 U.S. 602, (1971). See also, e.g., Meek v. Pittenger, 421 U.S. 349, 365 n.15, 372 (1975); Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, (1973). 68. Lemon v. Kurtzman, 403 U.S. 602, 625 (1971).

13 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 political, as well as religious, liberty. Practical considerations, however, more than doctrinal ones, demonstrate the futility of making "political divisiveness" a constitutional determinant under the Establishment Clause. Surely, legislation is not invalid simply because a religious organization supported or opposed it. Conflict among sectarian groups-whether it arises on the issue of how public funds should be expended or on the question of whether to grant a religious exemption from laws of general application-may well be unfortunate. But such discord is neither meaningfully different nor more dangerous than the disagreements among religious groups that are inevitably generated when government pursues many concededly secular ends. Religious groups have differed concerning a wide variety of political issues-including Sunday closing, gambling, pornography, drug control, gun control, the draft, prohibition, abolition of slavery, racial integration, prostitution, overpopulation, sterilization, abortion, birth control, marriage, divorce, the Equal Rights Amendment, and capital punishment, to name but a few. Undoubtedly, organized churches and other religious groups have markedly influenced the resolution of some of these issues. 9 The participation of such groups in the legislative process may well be relevant in determining whether a law should be subject to scrutiny under the Establishment Clause because it promotes a religious purpose. 7 0 But if a law serves genuinely secular purposes-or impairs no one's religious liberty by coercing, compromising or influencing religious beliefs-there is no persuasive reason to hold it unconstitutional simply because its proponents and opponents were divided along religious lines. Furthermore, even if government could or should eliminate political fragmentation along religious lines, the Establishment Clause would be a most ineffective tool for the task. For example, forbidding laws granting aid to parochial schools does not effect a truce, but only moves the battleground. There is every reason to believe that the failure to assist church-related schools antagonizes many citizens who feel that their taxes are being used to subsidize 69. See CENTER FOR THE STUDY OF DEMOCRATIC INSTITUTIONS, RELIGION AND AMERICAN SOCIETY 71 (1961); M. HOWE, THE GARDEN AND THE WILDERNESS 62 (1965); P. KAUPER, RELIGION AND THE CONSTITUTION (1962). 70. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).

14 19801 RELIGION CLAUSES an alien dogma of secularism. 7 1 Since funding only public schools places parents whose children attend parochial schools at a competitive disadvantage, they will tend to oppose legislation benefitting public schools. 72 Similarly, Christian groups may lobby for a Sunday closing law, believing that their religious obligation to abstain from work on Sundays places them at a disadvantage in the marketplace. Moreover, it is in their interest, and in the interest of nonreligious people, vigorously to oppose an exemption from the law for Sabbatarians, who might gain a competitive advantage from being open on Sundays. But if the exemption is denied, Sabbatarians will just as vigorously oppose enactment of the Sunday closing law. In sum, religious antagonism in the political arena, though perhaps regrettable, is a fact of life in our pluralistic governmental system which cannot be effectively suppressed through the Establishment Clause. VIII. To turn now to my principal subject, while it has been the "entanglement" prong of the Court's Establishment Clause test that has plagued the Court's efforts on the question of aid to parochial schools, it is the "secular purpose" prong that is most troublesome in respect to reconciling the seeming antipathy between the Establishment and Free Exercise Clauses. Because this part of the Court's test flatly prohibits any government action that has a religious purpose, it would make virtually all accommodations for religion unconstitutional. Since, as we shall see, 3 the primary goal of nearly all accommodations for religion is to avoid burdening religious activity, it is plain that their purpose is to assist religion. Thus, taken literally, the "secular purpose" requirement of the Court's Establishment Clause test would, for example, forbid the exemption of conscientious objectors from military service 4 and Amish school children from compulsory education laws." As we have seen," the Court's interpretation of the Free Exercise Clause 71. Schwartz, supra note 64, at : See Choper, supra note 16, at 260, ; see also J. NOWAK, R. ROTUNDA & J. YOUNG, supra note 58, at See text accompanying notes infra. 74. But see Selective Service Draft Law Cases, 245 U.S. 366, (1918), and discussion at notes infra. 75. But see Wisconsin v. Yoder, 406 U.S. 205 (1972), and discussion at note 110 infra. 76. See text accompanying notes 9-11 supra. But see Anderson v. General Dynamics,

15 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 rejects these implications of its Establishment Clause test. Indeed, the Court has not only mandated religious exemptions under the Free Exercise Clause but has also strongly indicated its approval of a number of government accommodations for religion that were not constitutionally required. 7 7 The Court's apparent inconsistency may be rationalized by concluding that its Establishment Clause principles simply give way in the face of a serious (or even arguably substantial) Free Exercise Clause claim. 78 Indeed, this approach may be endorsed as wisely fulfilling the historic and contemporary aims of both clauses to further religious liberty. But while I do not believe that the Establishment Clause should be read to bar all exemptions for religion, I am also unwilling to totally ignore the Establishment Clause simply because government's purpose is to accommodate religion. Precisely because the Establishment Clause is designed to protect religious liberty, I believe that it should not be automatically read as subordinate to the Free Exercise Clause, but rather as limiting the extent to which government may act in behalf of religion. My discussion will focus on the Establishment Clause. It makes no attempt to determine, once it is found that a religious accommodation is permissible under the Establishment Clause, when such accommodation may be required under the Free Exercise Clause. Rather, it concerns the Free Exercise Clause only by confining its scope. Ix. My proposal, once again, is that the Establishment Clause should forbid government action that is undertaken for a religious purpose and that is likely to result in coercing, compromising, or influencing religious beliefs. Thus, I disagree with the Court's articulated view that religious purpose alone renders government action invalid. Rather, it is only when religious purpose is coupled with threatened impairment of religious freedom that government action should be held to violate the Establishment Clause. I wish to make clear that my position is not grounded in the 489 F. Supp. 782 (S.D. Cal. 1980). 77. See, e.g., Gillette v. United States, 401 U.S. 437, 461 n.23 (1971) (draft exemption); Arlans Dep't Store, Inc. v. Kentucky, 371 U.S. 218 (1962) (dismissing for want of a substantial federal question an appeal testing the constitutionality of a Sabbatarian exemption from a Sunday closing law); Zorach v. Clauson, 343 U.S. 306 (1952) (released time program). 78. See L. TRIBE, AM ERmCAN CONSTrrUTIONAL LAW 14-4, at (1978).

16 1980] RELIGION CLAUSES idea that government promotion of religion serves secular ends by producing public benefits. If legislation designed to assist religion jeopardizes religious freedom, no public benefit should save it. Conversely, if state satisfaction of the religious needs of either the majority or a minority does not jeopardize any Establishment Clause values that have been identified, it should be held constitutionally permissible regardless of whether it serves some independent secular goal. Thus, the key to an Establishment Clause violation should be whether the government action endangers religious freedom. To illustrate my view-and specifically to contrast it with prevailing judicial doctrine-i believe that Epperson v. Arkansas 7 was wrongly decided. In Epperson, the Court held that Arkansas' "anti-evolution" statute, which made it unlawful to teach the theory of Charles Darwin in the public schools, violated the Religion Clauses. The Court rested its conclusion on the ground that it was "clear that fundamentalist sectarian conviction was and is the law's reason for existence." 80 I would not dispute the Court's finding that the statute had a solely religious purpose even if it could be shown that it produced derivative secular benefits such as the promotion of classroom harmony." 1 But to rely on the nonestablishment precept to invalidate a religiously motivated law that creates none of the dangers the Establishment Clause was designed to prevent represents, in my view, an "untutored devotion to the concept of neutrality" 82 between church and state. Conceding that the law in Epperson "aided" fundamentalist religions, there was no evidence that religious beliefs were either coerced, compromised or influenced. That is, it was not shown, nor do I believe that it could be persuasively argued, that the anti-evolution law either (1) induced children of fundamentalist religions to accept the biblical theory of creation, or (2) conditioned other children for conversion to fundamentalism. In contrast to other situations to be discussed below, those whose religious interests were not advanced by the law appeared to suffer no religious harm. Therefore, while the accommodation for religion in Epperson may not have been constitu U.S. 97 (1968). 80. Id. at See text following note 14 supra. 82. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J., concurring). 83. See text following note 101 infra.

17 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 tionally required by the Free Exercise Clause, 4 the law should have survived the Establishment Clause challenge. Even though it satisfied a private religious need, it did not, given the above factual premises, threaten religious liberty. X. Although the Court has seldom explored the tension between the Religion Clauses, the problem has by no means gone unnoticed. It should be helpful in defining the contours of my proposal to contrast it with some of the major scholarly attempts to reconcile the conflict. Nearly twenty years ago, an influential article by Philip Kurland urged that the Religion Clauses be read together to state a single principle of neutrality, mandating that "government cannot utilize religion as a standard for action or inaction because these clauses prohibit classification in terms of religion either to confer a benefit or to impose a burden." 85 Although there is much to be said for this rule of "religion-blindness," it has, in my view, two serious shortcomings. In requiring government impartiality respecting religion, the rule produces results hostile to religion without serving nonestablishment values and permits forms of aid that subvert historical and contemporary alms of the Establishment Clause. The neutrality principle produces hostility to religion by flatly prohibiting all solely religious exemptions from general regulations no matter how greatly they burden religious exercise and no matter how insubstantial the competing state interest may be. In advancing the admirable goals of government neutrality and impartiality, it downgrades the positive value that both Religion Clauses assign to religious liberty. Consider a simple illustration: Suppose that a school regulation requires pupils to wear shorts during gym class for the aesthetic effect of uniform dress and that one child requests an exemption because her religious scruples forbid her to bare her legs. 86 The "religion-blindness" rule would allow a broadly worded exemption for "all children whose modesty makes the wearing of shorts uncomfortable" or for "all children whose parents request exemption." Either of these would protect the religious objector, 84. See note 77 and accompanying text supra. 85. Kurland, supra note 58, at See Mitchell v. McCall, 273 Ala. 604, 143 So. 2d 629 (1962).

18 1980] RELIGION CLAUSES but so many other children might also take advantage of the exemption that the regulation's aesthetic goal would be destroyed. Even if the school believed that it could exempt children who objected on religious grounds and still achieve its overall aesthetic purpose, such an exemption would constitute an impermissible classification under the neutrality principle. Thus, the school board would seemingly be faced with the choice of either protecting the religious child by abandoning its concededly valid purpose, or compromising the religious child's beliefs even though denying the exemption is unnecessary to serve its purpose. The "religion-blindness" rule would appear to demand these equally unsatisfying alternatives even though granting a religious exemption would neither coerce, compromise, nor influence the religious beliefs of any school children. I doubt that it could plausibly be argued that children would change their religions in order to obtain an exemption, or that the beliefs of those granted the religious exemption would thereby be intensified. Therefore, a religious exemptionadmittedly undertaken for nonsecular purposes-would in no way impair religious freedom. Pursuant to my proposal, it would be permitted by the Establishment Clause. Paradoxically, the neutrality principle not only requires hostility to religion at odds with the values of the Free Exercise Clause, but also permits aid to religion in conflict with values of the Establishment Clause. It would apparently allow the use of tax funds for the purely religious functions of church organizations, so long as the legislative classification is broad enough. For example, suppose the state allocated public funds to all private associations for the purpose of distributing replicas of their insignia to their members. The Rotary Club, the League of Women Voters, and religious groups would all be beneficiaries. Under the "religion-blindness" rule, denial of funds to religious groups would constitute an impermissible religious classification, yet including such groups would designate tax funds to be used to purchase crosses and Stars of David. If our economy were to reach such a stage of collectivization that government fiscal policies so shrunk private sources of funds as to make voluntary support of religion impracticable, there might well then be merit in re-evaluating the historically rooted and contemporarily valued prohibition against state support of strictly sectarian activities. 87 But I do not believe that it has yet been persua- 87. See Giannella, Religious Liberty, Nonestablishment and Doctrinal Development

19 690 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 sively shown that that time has come. XI. Several scholars have urged that the Establishment Clause is largely designed to implement the Free Exercise Clause, so that when the Religion Clauses clash, the Establishment Clause must be subordinated to the Free Exercise Clause. 88 The leading decision of Sherbert v. Verner 89 may be read as supporting this view. In that case, Mrs. Sherbert, a mill worker and a Seventh Day Adventist, was discharged by her employer when she would not work on Saturday, the Sabbath day of her faith, after all the mills in her area adopted a six-day work week. South Carolina denied her unemployment compensation benefits for refusing to accept "suitable work," even though that would require her to work on Saturday. The Court held that this violated the Free Exercise Clause because "to condition the availability of benefits upon [her] willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties." 90 Under the Court's Establishment Clause test, however, any government action that has a religious purpose is forbidden, and, therefore, a Sabbatarian exemption would appear to be unconstitutional. It seems indisputable that when the state excuses Mrs. Sherbert from taking otherwise suitable work because of her religious scruples, the purpose of the exemption is solely to facilitate her religious exercise. To avoid the stark impact of its Establishment Clause approach, the Court may have either totally subordinated the Establishment Clause's "no-aid" mandate to the Free Exercise Clause, or simply balanced Mrs. Sherbert's right to Sabbatarianism under the Free Exercise Clause against the "no-aid" principle of the Establishment Clause and found the former weightier. Justice Brennan, author of the Sherbert opinion, had previously advocated this approach for resolving the establishment-free exercise conflict: "[T]he logical interrelationship between the Establishment and (pt. 2): The Nonestablishment Principle, 81 HARv. L. REv. 513, , (1968);'an Alstyne, Constitutional Separation of Church and State: The Quest for a Coherent Position, 57 AM. POL. Sci. REv. 865, (1963). 88. See, e.g., Moore, The Supreme Court and the Relationship Between the "Establishment" and "'Free Exercise" Clauses, 42 TEx. L. REv. 142, 196 (1963) U.S. 398 (1963). 90. Id. at 406.

20 19801 RELIGION CLAUSES Free Exercise Clauses may produce situations where an injunction against an apparent establishment must be withheld in order to avoid infringement of rights of free exercise." '91 If, in a balancing process, the Establishment Clause's prohibition of aid to religion is viewed only as an abstract principle rather than as a means for securing religious liberty, then it is not surprising that the Court found it wanting in Sherbert. On the other side of the balance was Mrs. Sherbert's grave, immediate, and concrete injury-the very type of injury that the Free Exercise Clause was meant to prevent. Indeed, if the Establishment Clause is so abstractly viewed, then it is difficult to imagine any situation where it would not be subordinated or outweighed when measured against a colorable free exercise claim. Under my proposal, the Establishment Clause would not be so viewed. Rather it would serve the underlying values of both Religion Clauses by forbidding.laws whose purpose is to aid religion-including exemptions for religion from general government regulations-if such laws tended to coerce, compromise, or influence religious beliefs. Mrs. Sherbert's exemption would fail this test. First, since those who refused to work on Saturdays for nonreligious reasons, such as watching football games or spending the day with their children, would be denied unemployment benefits under South Carolina's scheme (and could constitutionally be denied them under the Court's ruling), the sole purpose of Mrs. Sherbert's exemption was to aid religion. Second, the exemption results in impairment of religious liberty because compulsorily raised tax funds must be used to subsidize Mrs. Sherbert's exercise of religion. The situation produced by the Court's decision in Sherbert is distinguishable from that in which the state allows all unemployment compensation claimants to refuse work on one day of their choosing in order to pursue whatever outside interests they might have. Even though some claimants might use the day for religious exercise, government has not conditioned the grant of public funds on a religious use, nor in any other way restricted freedom of choice as to how the money will be spent. While taxpayers may rightfully complain if Mrs. Sherbert's exemption is granted on condition that she use it for religious purposes, they may not object to 91. School Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 247 (1963) (Brennan, J., concurring).

21 692 UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 41:673 Mrs. Sherbert's religious use of her leisure time. This is analytically the same as a welfare recipient's contributing part of his benefits to his church. Even though the state's money finds its way into the church's coffers, there is no violation of the Establishment Clause because the government has not conditioned the grant on the recipient's promise to use it for religious purposes. The government's secular goal of providing for the basic needs of indigents is served even though a particular recipient decides that one of his basic needs is religion. 92 Does my proposal-which forbids a religious exemption for Mrs. Sherbert because it would coerce taxpayer's religious beliefs-simply subordinate the Free Exercise Clause to the Establishment Clause? I think not, because the religious liberty value at the core of both Religion Clauses demands that Mrs. Sherbert's right to freely exercise her religion not encompass the right to governmental assistance which infringes the religious freedom of others. XII. In a provocative article published fifteen years ago, Marc Galanter sought to justify exemptions for religious minorities from general government regulations on the ground that they do not constitute preferential aid to religion forbidden by the Establishment Clause but rather amount to no more than equalizing the position of these minorities with that of the majority. 98 He based his thesis on the persuasive premise that "[w]hatever seriously interferes with majority religious beliefs and practices is unlikely to become a legal requirement-for example, work on Sunday or Christmas. 9 4 Indeed, the statute involved in Sherbert is illustrative because, by prohibiting any disadvantage against employees who refused to work on Sunday because of their religion, 95 it "expressly save[d] the Sunday worshipper from having to make the kind of choice" ' imposed on Mrs. Sherbert. Thus, special treatment for religious minorities, Galanter contended, is restorative or equalizing, granting them only "what majorities have by virtue of suffrage and rep- 92. See generally Choper, supra note 16, at Galanter, Religious Freedom in the United States: A Turning Point? 1966 Wis. L. Rav Id. at See 374 U.S. at Id. at 406.