Establishment Clause Limitations

When a legislative body grants religious groups more liberty than the Supreme Court has interpreted the Free Exercise Clause to require, the government potentially violates the Establishment Clause, which prohibits the government from specially favoring religion or promoting religious belief. The Supreme Court has sought to reconcile this tension between the religion clauses by designing rules that distinguish between permissible and impermissible accommodations under the Establishment Clause. More than half a century of law in this area has produced the following five rules.

First, when a law exempts only religious believers from a generally applicable legal requirement, the law must relieve a burden that specially affects the ability of believers to practice their religion. So, for example, the government may exempt only religious employers, such as churches, from a general prohibition on religious discrimination because requiring a religious institution to hire people outside that particular religion would burden its religious mission in a way that such a requirement would not burden a secular employer.

Second, accommodations for religious individuals must not impose unreasonable costs on others. For example, exempting religious prisoners from general prison regulations must not endanger the safety of guards or other prisoners.

Third, accommodations must not grant religious organizations the authority to wield a power typically reserved for government, such as the power to decide which local businesses may serve liquor.

Fourth, accommodations must not coerce participation in a religious practice. For instance, a public school must not seek to accommodate religious students by forcing all students to engage in prayer.

And fifth, accommodations must not single out particular religious groups for favorable treatment. For example, if a law generally prohibits alcohol consumption, the Establishment Clause would permit an exemption for all sacramental consumption, but it would not permit an exemption that applied only to Roman Catholic Mass.

As the Supreme Court has affirmed the constitutionality of some laws that burden religious exercise, legislatures have enacted broader religious accommodations, which in turn have raised new questions about how the Establishment Clause might limit such laws. The debate over the relationship between religious liberty and disestablishment is likely to continue, prompting courts to develop and further refine the Establishment Clause limitations on religious accommodations.

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