FREEDOM OF RELIGION

1. Illustration:  Consider, for instance, state financial assistance to private schools, including parochial schools. If such aid is given, a strong argument can be made that the Establishment Clause is violated, since government is assisting parochial schools in an activity that has a strong religious component. Yet if such aid is not given, while public schools are given large amounts of assistance, a claim can be made that students’ free exercise of religion is infringed, because economic burdens force them to abandon parochial schools for public ones.

2. No solution:  The Supreme Court has not yet found a precise way of harmonizing the two clauses. The Court has asserted that government rules must be “neutral” towards religion. But the Court has used the concept of neutrality in such a vague way that the term does not aid in the solution of any of the difficult cases of conflict between the clauses.

3. Zone of permissible accommodation:  Tribe suggests that the Court’s cases recognize a “zone of permissible accommodation,” a zone which “the Free Exercise Clause carves out of the Establishment Clause for permissible accommodation of religious interests.” Tribe, p. 1169. Under this view, if any governmental action is “arguably compelled” by the Free Exercise Clause, then that action is not forbidden by the Establishment Clause. Tribe, p. 1168. Thus wherever one action might violate the Free Exercise Clause and a contrary action might violate the Establishment Clause, it will always be safe for the government to elect the course whose threat is to the Establishment Clause. To put it another way, “[t]he free exercise principle should be dominant in any conflict with the anti-establishment principle.” Tribe, p. 1201.

D. Application of clauses to states:  Although the First Amendment by its terms only restricts legislative action by Congress, the two religion clauses, like most of the other guarantees of the Bill of Rights, have been incorporated into the Fourteenth Amendment’s due process guarantee, and thereby made applicable to the states. See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947) (application of Establishment Clause to states).

II.THE ESTABLISHMENT CLAUSE

A. Background:  The basic purpose of the Establishment Clause is, in the words of Thomas Jefferson, to erect “a wall of separation between church and state.” However, the image of a “wall” does not help very much in determining what types of state actions violate the Clause.

1. Specific prohibitions:  There are some types of governmental actions which clearly violate the Establishment Clause. The majority catalogued some of these in Everson v. Board of Education, supra: