Judges and Judiciary
Nov. 18, 2004
Separation of Church and State May Not Hold Under Bush
Forum Column - By Erwin Chemerinsky - When constitutional historians look back at the Rehnquist court, they will say that it dramatically changed the law concerning the religion clauses in the First Amendment. During the tenure of William Rehnquist as chief justice, the court greatly narrowed the protections of both the free exercise clause and the establishment clause of the First Amendment.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
By Erwin Chemerinsky
When constitutional historians look back at the Rehnquist court, they will say that it dramatically changed the law concerning the religion clauses in the First Amendment. During the tenure of William Rehnquist as chief justice, the court greatly narrowed the protections of both the free exercise clause and the establishment clause of the First Amendment.
Again this year, in what many speculate may be the last year of the Rehnquist court, some of the most important and high profile cases concern the religion clauses of the First Amendment.
In 1990, in Employment Division v. Smith, 494 U.S. 872 (1990), the court ruled that the free exercise clause cannot be used to challenge a neutral law of general applicability, no matter how much the law burdens religion. Smith involved a challenge by Native Americans to an Oregon law prohibiting consumption of peyote, an hallucinogenic substance.
Native Americans argued that their religious rituals required the use of peyote. The Supreme Court rejected this claim and said that the free exercise clause does not provide a basis for exemptions from laws for religious practices. A law can be challenged as violating the free exercise clause only if it can be shown either that the law is not neutral in that it was motivated by a desire to interfere with religion, or is not of general applicability in that it targets religion or a particular religion.
This is a very significant narrowing of the protections of the free exercise clause because almost every case under this constitutional provision involves a challenge to a neutral law of general applicability that burdens religion.
In 1993, Congress enacted the Religious Freedom Restoration Act, to restore by statute the protection for free exercise of religion to what it had been under the Constitution before Smith. But in City of Boerne v. Flores, 521 U.S. 507 (1997), the court declared the Religious Freedom Restoration Act unconstitutional as exceeding the scope of Congress's power to legislate pursuant to Section 5 of the Fourteenth Amendment.
The court's narrowing of the free exercise clause has been matched by a relaxation of the limits imposed on government aid to religion by the establishment clause. In Agostini v. Felton, 521 U.S. 203 (1997), the court overruled a decade-old precedent and allowed the government to use public school teachers to provide special education in parochial schools. In Mitchell v. Helms, 530 U.S. 793 (2000), the court overruled several precedents and ruled that the government may give instructional equipment, such as computers and audiovisual equipment, to parochial schools, so long as it is not actually used in religious education.
In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the court approved an Ohio voucher program, even though 96 percent of all of the vouchers were used in parochial schools. In an opinion by Rehnquist, the court stressed the government's secular purpose in improving education for all children and concluded that it is parental choices, not government decisions, that places money in religious schools' coffers.
This term, the court has three cases involving the religion clauses. In Cutter v. Wilkinson, 349 F.3d 257 (6th Cir. 2003), certioari granted, 125 S.Ct. 308 (2004), the Supreme Court will consider whether the Religious Land Use and Institutionalized Persons Act violates the establishment clause of the First Amendment.
After the Supreme Court invalidated the Religious Freedom Restoration Act, Congress enacted Religious Land Use and Institutionalized Persons Act. Unlike the Religious Freedom Restoration Act that applied to all governments actions, Religious Land Use and Institutionalized Persons Act applies only to land use decision-making and to institutionalized individuals.
Like the earlier statute, Religious Land Use and Institutionalized Persons Act restores strict scrutiny, providing that in the covered areas the government may significantly burden religion only if its actions are necessary to achieve a compelling government purpose.
Cutter v. Wilkinson involves claims by several prisoners that their religious observances had been impermissibly restricted by prison administrators. The 6th U.S. Circuit Court of Appeals held that Religious Land Use and Institutionalized Persons Act is an impermissible establishment of religion. The court concluded that Religious Land Use and Institutionalized Persons Act provides exemptions from general regulations that are not available to any secular activities. The 6th Circuit stated that this favoring of religion violates the establishment clause.
Ultimately, the Supreme Court must decide whether the government may protect free exercise of religion without violating the establishment clause. Any government action to safeguard free exercise of religion is done with the purpose of, and has the effect of, aiding religion. By the 6th Circuit's analysis, any effort to advance free exercise of religion is impermissible.
Ultimately, this case will decide not only the fate of Religious Land Use and Institutionalized Persons Act, but also religious freedom restoration acts adopted in several states and, more generally, the ability of legislatures to enhance free exercise of religion.
The other two cases concerning the religion clauses involve Ten Commandments displays. Van Orden v. Perry, 351 F.3d 173 (5th Cir. 2003), certioari granted, 125 S.Ct. 346 (2004), involves the constitutionality of a six-foot-high, 31/2-feet wide Ten Commandments monument that stands between the Texas State Capitol and the Texas Supreme Court.
This is one of literally hundreds of similar monuments placed on government property by the Fraternal Order of Eagles. The monument, at the top and in large letters, says, "the Ten Commandments" and underneath it, also in large letters, says, "I am the Lord Thy God."
The first several commandments are overtly religious, such as: "Thou shall have no other gods before me"; "Thou shall not make to thyself any graven images"; "Thou shall not take the name of the Lord thy God in vain"; "Remember the Sabbath day to keep it holy."
The 5th U.S Circuit Court of Appeals upheld this monument, rejecting the claim that the prominent monument violated the establishment clause. The court stressed that the Ten Commandments was one of many monuments on the grounds of the State Capitol and that the Ten Commandments is secular in that it is part of the foundation of American law.
The other Ten Commandments case before the Supreme Court is McCreary County Kentucky v. American Civil Liberties Union of Kentucky, 354 F.3d 438 (6th Cir. 2003), certioari granted, 125 S.Ct. 310 (2004).
This case involves Ten Commandments displays placed in courthouses and public schools. After a constitutional challenge was brought, the government added other secular symbols to the displays. Nonetheless, the 6th Circuit upheld a preliminary injunction, concluding that the Ten Commandments is inherently a religious symbol and that the displays violate the Establishment Clause.
Ten Commandments displays have been a rallying cry for conservatives, as was seen by Alabama Supreme Court Justice Roy Moore's defiance in trying to keep a 21/2-ton Ten Commandments monument in the rotunda of the Alabama Supreme Court building.
Thus, the two Ten Commandments cases this year are likely to generate the kind of controversy seen last year when the Supreme Court considered, but did not decide, whether the words "under God" in the Pledge of Allegiance violate the establishment clause in public schools. Elk Grove Unified School District v. Newdow, 124 S.Ct. 2301 (2004).
The reality is that few issues are as divisive or do more to separate liberals and conservatives than government involvement with religion. Progressives believe that the establishment clause separates church and state; they thus oppose government aid to religious schools, believe prayer in schools is unconstitutional and think that the place for religious symbols is on private property.
In contrast, conservatives believe that religion should be accommodated in government and that the exclusion of religion is undue hostility. Conservatives would allow government aid to religious schools, so long as all religions are treated the same; would permit nonsectarian prayers in schools; and would allow religious symbols on government property.
If the Supreme Court becomes more conservative in the years ahead, as many predict with the re-election of President Bush, it can be expected that this will be one of the major areas of change in the law.
If Justice Sandra Day O'Connor or Justice John Paul Stevens is replaced with a justice who shares the views of Justices Antonin Scalia and Clarence Thomas, decades-old precedents excluding religion from government and restricting government aid to religion are likely to be overruled. The very nature of American government may be changed.
Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke Law School.
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