ACCOMMODATION OF RELIGION

In the seminal case of everson v. board of education (1947), the Supreme Court asserted that the First Amendment contains a principle of separation of church and state that in turn entails a prohibition on governmental aid to religious institutions. But the Justices have also cautioned that an excessive emphasis on separation might amount to public hostility, or "callous indifference," toward religion. This concern soon led the Court to qualify the "separation" theme by explaining that the First Amendment contemplates governmental "accommodation" of religion. In zorach v. clauson (1952), for example, Justice william o. douglas wrote for the Court that government "follows the best of our tradition" when it "respects the religious nature of our people and accommodates the public service to their spiritual needs." The early cases thus established the two poles that have shaped modern debate about religious liberty, and around which opposing legions of "separationists" and "accommodationists" have aligned themselves.

A central difficulty has been to explain how mere accommodation differs from the "advancement" or "endorsement" of religion that the Court has declared impermissible. Thus far, neither judges nor legal scholars have managed a satisfactory account of this distinction. The Court has said that a law is a permissible accommodation if it merely lifts a government-created burden on religion without affirmatively assisting religion. But in an era of pervasive governmental regulation and subsidization, both direct and indirect, this line is difficult to discern. So, for example, the Court struck down a state provision exempting religious publications from sales tax—surely a government-imposed burden—on the ground that the exemption impermissibly advanced religion.

As an alternative, Justice sandra day o'connor has suggested that the appropriate distinction is between those accommodations that "endorse" religion and those that do not. But of course some citizens will likely perceive almost any official accommodation of religion as an endorsement. Consequently, the application of O'Connor's test turns on highly artificial discussions of whether a hypothetical "reasonable" and properly, but not excessively, informed observer would perceive an endorsement.

Recently, some scholars have suggested that distinctions should be drawn in accordance with a policy of "substantive neutrality"—a position based on the premise that the constitutional objective is to prevent government from influencing people, pro or con, in matters of religion. In some contexts, this position would mean that religion should be treated in the same way that nonreligion is. So if government pays for students to attend secular public schools, for example, the same subsidy should be given to individuals who desire to attend religious schools. But where a government policy (a military conscription law, for example) would impose a special burden on some citizens' exercise of religion, substantive neutrality would require government to accommodate religious objectors by granting them a free-exercise exemption from the law unless there is a compelling state interest in requiring them to comply.

During the 1990s, the Court has moved in the direction of this substantive neutrality position in some respects. For example, the Court has held that a deaf student in a religious school is entitled to a state-supplied sign language interpreter that would be supplied under federal law for a deaf student in a public school. And the Court ruled that a Christian student newspaper at a state university could not be excluded from funding that nonreligious publications received. In other respects, however, the Court has moved away from the substantive neutrality position. Thus, in employment division, department of human resources of oregon v. smith (1990), the Court repudiated the view that in some contexts religious objectors are constitutionally entitled to free-exercise exemptions from generally applicable laws.

Moreover, critics of the position argue that the label "substantive neutrality" is misleading. In a religiously diverse society, almost any controversial governmental action will correspond to some religious viewpoints and will conflict with other religious viewpoints. Hence, particular policies and outcomes can be made to seem neutral only by marginalizing or misrepresenting incompatible religious views.

The underlying problem, it seems, is that modern religion-clause jurisprudence has not developed any clear idea about why the baseline position that accommodation serves to qualify—the position, that is, of separation or no aid—is constitutionally required in the first place. Like the Everson Court, modern separationists typically take it for granted, on highly dubious historical grounds, that the First Amendment imposes a no aid principle. Consequently, they make little effort to articulate the rationale for that principle. Without a clear understanding of why government aid to religion is normally impermissible, however, it is difficult to consider why and when limited forms of government help should be treated as an exception to the general rule.

Steven D. Smith
(2000)