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church and state should be separate realms, other early Americans were not.

      establishment clause the First Amendment guarantee that the government will not create and support an official state church

      A similar division continues today between the separationists, who believe that a “wall” should exist between church and state, and the nonpreferentialists, or accommodationists, who contend that the state should not be separate from religion but rather should accommodate it, without showing a preference for one religion over another. Accommodationists argue that the First Amendment should not prevent government aid to religious groups, prayer in school or in public ceremonies, public aid to parochial schools, the posting of religious documents such as the Ten Commandments in public places, or the teaching of the Bible’s story of creation along with evolution in public schools. Adherents of this position claim that a rigid interpretation of separation of church and state amounts to intolerance of their religious rights or, in the words of Supreme Court Justice Anthony Kennedy, to “unjustified hostility to religion.”¹⁶ Presidents Ronald Reagan, George H. W. Bush, and George W. Bush, and many other Republicans, have shared this view, as have many powerful interest groups such as the Christian Coalition.

      separationists supporters of a “wall of separation” between church and state

      accommodationists supporters of government nonpreferential accommodation of religion

      A lot is clearly at stake in the battle between the separationists and the accommodationists. On one side of the dispute is the separationists’ image of a society in which the rights of all citizens, including minorities, receive equal protection under the law. In this society, religions abound, but they remain private, not matters for public action or support. Very different is the view of the accommodationists, which emphasizes the sharing of community values, determined by the majority and built into the fabric of society and political life.

      Today U.S. practice stands somewhere between these two views. Sessions of Congress open with prayers, for instance, but a schoolchild’s day does not. Although religion is not kept completely out of our public lives, the Court has generally leaned toward a separationist stance.¹⁷

      As the more conservative appointments of Republican presidents Richard Nixon and Reagan began to shape the Court, the Court’s rulings moved in a more accommodationist direction. In Lemon v. Kurtzman (1971), the Court added to the old test a third provision that a law not foster “an excessive government entanglement with religion.”¹⁸ Under the new Lemon test, the justices had to decide how much entanglement there was between politics and religion, leaving much to their own discretion.

      Lemon test the three-pronged rule used by the courts to determine whether the establishment clause is violated

      As the current rule in deciding establishment cases, the Lemon test is not used consistently, primarily because the justices have not settled among themselves the underlying issue of whether religion and politics should be separate, or whether state support of religion is permissible.¹⁹ The justices still lean in a separationist direction, but their rulings occasionally nod at accommodationism. Meanwhile, many states have taken matters into their own hands by blurring the line, allowing students to give “inspirational” messages at school events, for instance, or allowing schools to offer Bible classes or to teach evolution as a controversy rather than settled science.²⁰ These practices and laws are the new battlefield over religious establishment, and the Court will no doubt be called on to weigh in before long.

      The Free Exercise Clause

      Another fundamental question about religious freedom that divides the public and justices alike is what to do when religious beliefs and practices conflict with state goals. The second part of the First Amendment grant of religious freedom guarantees that Congress shall make no law prohibiting the free exercise of religion. The free exercise clause, as it is called, has generated as much controversy as the establishment clause. When is the state justified in regulating religion? Although Americans have an absolute right to believe whatever they want, their freedom to act is subject to government regulation (see Snapshot of America: What Do We Believe?).²¹ The state’s police power allows it to regulate behavior in order to protect its citizens and to provide social order and security. These two valued goods of religious freedom and social order are bound to conflict, and the Court has had an uneasy time trying to draw the line between them. Although it waffled a bit before doing so, the Court has said that schoolchildren cannot be required to salute the American flag if it violates their religious principles to do so (as it does for Jehovah’s Witnesses).²²

      free exercise clause the First Amendment guarantee that citizens may freely engage in the religious activities of their choice

      police power the ability of the government to protect its citizens and maintain social order

      The Court has gone back and forth on other religious freedom issues as it has struggled to define what actions the state might legitimately seek to regulate. For a while the Court held that any incidental burden placed on religious freedom must be justified by a compelling state interest, that is, the state must show that it is absolutely necessary for some fundamental state purpose that religious freedom be limited.²³ How the Court determines what is and what is not a compelling state interest is examined in Chapter 5.

      compelling state interest a fundamental state purpose, which must be shown before the law can limit some freedoms or treat some groups of people differently

      Snapshot of America: What Do We Believe?

      Description

      Source: Pew Research Center, “America’s Changing Religious Landscape,” May 12, 2015, www.pewforum.org/2015/05/12/americas-changing-religious-landscape/.

      The Court rejected this compelling state interest test, however, in Employment Division, Department of Human Resources v. Smith (1990), when it held that if the infringement on religion is not intentional but is rather the by-product of a general law prohibiting socially harmful conduct, applied equally to all religions, then it is not unconstitutional.²⁴ The Court found that the compelling state interest test, while necessary for cases dealing with matters of race and free speech, was inappropriate for religious freedom issues. Under the Smith ruling, a number of religious practices have been declared illegal by state laws on the grounds that the laws do not unfairly burden any particular religion.

      Religious groups consider the Smith ruling a major blow to religious freedom because it places the burden of proof on the individual or church to show that its religious practices should not be punished, rather than on the state to show that the interference with religious practice is absolutely necessary. In response to the Smith decision, Congress in 1993 passed the Religious Freedom Restoration Act (RFRA). This act, supported by a coalition of ninety religious groups, restored the compelling state interest test for state action limiting religious practice and required that when the state did restrict religious practice, it be carried out in the least burdensome way. However, in the 1997 case of City of Boerne v. Flores, the Court held that the RFRA was an unconstitutional exercise of congressional power.²⁵ Congress amended the act in 2003

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