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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