The accommodation of religion raises some
of the most difficult questions in church-state
relations because it involves so many different
and complicated areas of constitutional law.
Most fundamentally, in seeking to promote
religious liberty, such accommodations often
appear to favor religion over nonreligion and
thus seem to violate the Establishment Clause.
Balancing these two competing constitutional
values of religious liberty and disestablishment
is a challenging task. Further constitutional
problems can arise because a legislative accommodation,
by expressing distrust in the judiciary’s
ability to protect religious liberty, can potentially
encroach on judicial authority, thereby blurring
the separation of powers, a principle that lies at
the core of the Constitution. Moreover, if the federal government enacts an accommodation
that unduly extends its own power over state
governments, that accommodation might violate
the doctrine of federalism.
With all of these questions in the air, it is not
surprising that there is much uncertainty about
the future of religious accommodation. As former
Chief Justice Warren Burger once wrote, the law
governing the accommodation of religion “cannot
be an absolutely straight line.” Given the fluidity
of these constitutional boundaries, sparring among
judges, politicians and citizens over how to navigate
the course of religious liberty is likely to continue.
This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington
University Law School; David Masci, Senior Research Fellow at the Pew Forum on Religion & Public Life;
Jesse Merriam, Research Associate at the Pew Forum on Religion & Public Life; and Robert W.Tuttle, David R.
and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.
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