The Free Exercise Boundaries of Permissible Accommodation under the Establishment Clause

Abstract

The free exercise clause 1 instructs the government to lift state-imposed burdens on religion where the costs of doing so are reasonable. Thus, absent a "compelling" state interest, 2 the government must exempt people from generally applicable requirements that burden their religious obligations. 3 By contrast, the establishment clause forbids the government to pass laws for the purpose of advancing religion. 4 According to the Supreme Court, the principles underlying these two clauses are mutually inconsistent. 5 Justice O'Connor remarks: "It is disingenuous to look for a purely secular purpose when the manifest objective of a statute is to facilitate the free exercise of religion by lifting a government-imposed burden." ' Many commentators agree that such "accommodation" of religion-whether enacted by a legislature or compelled by a court-inevitably reveals a purpose that the establishment clause forbids.' 1. U.S. CONST. amend. I reads in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. .. ."2. See, e.g., Sherbert v. Verner, 374 U.S. 398, 406 (1963). Interests that are "compelling" in the free exercise context often would not be "compelling" in the equal protection context (where virtually no interest is compelling). See, e.g., United States v. Lee, 455 U. S. 252, 262-63 (1982) (Stevens, J., concurring) (suggesting that Court applies lower standard in free exercise cases than it professes). Thus, the required state interest is more aptly termed "substantial." 3. See Frazee v. Illinois Dep't of Employment Sec., 109 S. Ct. 1514 (1989) (state must exempt Sabbath observers from general requirement that welfare candidates accept available employment on any given day of week); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987) (same); Sherbert, 374 U.S. 398 (same); Thomas v. Review Bd., 450 U.S. 707 (1981) (state must exempt Jehovah's Witness from general requirement that welfare candidates accept available employment at any workplace, including munitions plants); Wisconsin v. Yoder, 406 U.S. 205 (1972) (state must exempt Amish from general requirement that all children under 16 attend school).4. See, e.g., Abington School Dist. v. Schempp, 374 U.S. 203, 222 (1963). Under current doctrine, the establishment clause also prohibits the government from passing laws that have the "primary effect" of advancing religion or that "excessively entangle" church with state. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). These considerations are essentially irrelevant to my analysis. See infra note 57.5. See, e.g., Walz v. Tax Comm'n, 397 U.S. 664, 668-69 (1969):The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other .... The course of constitutional neutrality in this area cannot be an absolutely straight line ....