CUTTER V. WILKINSON (03-9877) 544 U.S. 709 (2005) 349 F.3d 257, reversed and remanded.

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports.Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


No. 03—9877



[May 31, 2005]

Justice Ginsburg delivered the opinion of the Court.

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 804, 42 U.S.C. § 2000cc—1(a)(1)—(2), provides in part: “No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the burden furthers “a compelling governmental interest,” and does so by “the least restrictive means.” Plaintiffs below, petitioners here, are current and former inmates of institutions operated by the Ohio Department of Rehabilitation and Correction and assert that they are adherents of “nonmainstream” religions: the Satanist, Wicca, and Asatru religions, and the Church of Jesus Christ Christian.1 They complain that Ohio prison officials (respondents here), in violation of RLUIPA, have failed to accommodate their religious exercise

“in a variety of different ways, including retaliating and discriminating against them for exercising their nontraditional faiths, denying them access to religious literature, denying them the same opportunities for group worship that are granted to adherents of mainstream religions, forbidding them to adhere to the dress and appearance mandates of their religions, withholding religious ceremonial items that are substantially identical to those that the adherents of mainstream religions are permitted, and failing to provide a chaplain trained in their faith.” Brief for United States 5.

For purposes of this litigation at its current stage, respondents have stipulated that petitioners are members of bona fide religions and that they are sincere in their beliefs. Gerhardt v. Lazaroff, 221 F. Supp. 2d 827, 833 (SD Ohio 2002).

In response to petitioners’ complaints, respondent prison officials have mounted a facial challenge to the institutionalized-persons provision of RLUIPA; respondents contend, inter alia, that the Act improperly advances religion in violation of the First Amendment’s Establishment Clause. The District Court denied respondents’ motion to dismiss petitioners’ complaints, but the Court of Appeals reversed that determination. The appeals court held, as the prison officials urged, that the portion of RLUIPA applicable to institutionalized persons, 42 U.S.C. § 2000cc—1, violates the Establishment Clause. We reverse the Court of Appeals’ judgment.

“This Court has long recognized that the government may … accommodate religious practices … without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U.S. 136, 144—145 (1987). Just last Term, in Locke v.Davey, 540 U.S. 712 (2004), the Court reaffirmed that “there is room for play in the joints between” the Free Exercise and Establishment Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause. Id., at 718 (quoting Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 669 (1970)). “At some point, accommodation may devolve into ‘an unlawful fostering of religion.’ ” Corporation of Presiding Bishop of Church of Jesus Christ of Latter&nbhyph;day Saints v. Amos, 483 U.S. 327, 334—335 (1987) (quoting Hobbie, 480 U.S., at 145). But §3 of RLUIPA, we hold, does not, on its face, exceed the limits of permissible government accommodation of religious practices.



RLUIPA is the latest of long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens, consistent with this Court’s precedents. Ten years before RLUIPA’s enactment, the Court held, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878—882 (1990), that the First Amendment’s Free Exercise Clause does not inhibit enforcement of otherwise valid laws of general application that incidentally burden religious conduct. In particular, we ruled that the Free Exercise Clause did not bar Oregon from enforcing its blanket ban on peyote possession with no allowance for sacramental use of the drug. Accordingly, the State could deny unemployment benefits to persons dismissed from their jobs because of their religiously inspired peyote use. Id., at 874, 890. The Court recognized, however, that the political branches could shield religious exercise through legislative accommodation, for example, by making an exception to proscriptive drug laws for sacramental peyote use. Id., at 890.

Responding to Smith, Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bbet seq. RFRA “prohibits ‘[g]overnment’ from ‘substantially burden[ing]’ a person’s exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ ” City of Boerne v. Flores, 521 U.S. 507, 515—516 (1997) (brackets in original) (quoting §2000bb—1). “[U]niversal” in its coverage, RFRA “applie[d] to all Federal and State law,” id., at 516 (quoting former §2000bb—3(a)), but notably lacked a Commerce Clause underpinning or a Spending Clause limitation to recipients of federal funds. In City of Boerne, this Court invalidated RFRA as applied to States and their subdivisions, holding that the Act exceeded Congress’ remedial powers under the Fourteenth Amendment. Id., at 532—536.2

Congress again responded, this time by enacting RLUIPA. Less sweeping than RFRA, and invoking federal authority under the Spending and Commerce Clauses, RLUIPA targets two areas: Section 2 of the Act concerns land-use regulation, 42 U.S.C. § 2000cc;3 §3 relates to religious exercise by institutionalized persons, §2000cc—1. Section 3, at issue here, provides that “[n]o [state or local] government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government shows that the burden furthers “a compelling governmental interest” and does so by “the least restrictive means.” §2000cc—1(a)(1)—(2). The Act defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc—5(7)(A). Section 3 applies when “the substantial burden [on religious exercise] is imposed in a program or activity that receives Federal financial assistance,”4 or “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.” §2000cc—1(b)(1)—(2). “A person may assert a violation of [RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” §2000cc—2(a).

Before enacting §3, Congress documented, in hearings spanning three years, that “frivolous or arbitrary” barriers impeded institutionalized persons’ religious exercise. See 146 Cong. Rec. S7774, S7775 (July 27, 2000) (joint statement of Senator Hatch and Senator Kennedy on RLUIPA) (hereinafter Joint Statement) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways.”).5 To secure redress for inmates who encountered undue barriers to their religious observances, Congress carried over from RFRA the “compelling governmental interest”/“least restrictive means” standard. See id., at S7774.Lawmakers anticipated, however, that courts entertaining complaints under §3 would accord “due deference to the experience and expertise of prison and jail administrators.” Id., at S7775 (quoting S. Rep. No. 103—111, p. 10 (1993)).


Petitioners initially filed suit against respondents asserting claims under the First and Fourteenth Amendments. After RLUIPA’s enactment, petitioners amended their complaints to include claims under §3. Respondents moved to dismiss the statutory claims, arguing, inter alia, that §3 violates the Establishment Clause. 221 F. Supp. 2d, at 846. Pursuant to 28 U.S.C. § 2403(a), the United States intervened in the District Court to defend RLUIPA’s constitutionality. 349 F.3d 257, 261 (CA6 2003).

Adopting the report and recommendation of the Magistrate Judge, the District Court rejected the argument that §3 conflicts with the Establishment Clause. 221 F. Supp. 2d, at 846—848. As to the Act’s impact on a prison’s staff and general inmate population, the court stated that RLUIPA “permits safety and security–which are undisputedly compelling state interests–to outweigh an inmate’s claim to a religious accommodation.” Id., at 848. On the thin record before it, the court declined to find, as respondents had urged, that enforcement of RLUIPA, inevitably, would compromise prison security. Ibid.

On interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the Court of Appeals for the Sixth Circuit reversed. Citing Lemon v.Kurtzman, 403 U.S. 602 (1971),6 the Court of Appeals held that §3 of RLUIPA “impermissibly advanc[es] religion by giving greater protection to religious rights than to other constitutionally protected rights.” 349 F.3d, at 264. Affording “religious prisoners rights superior to those of nonreligious prisoners,” the court suggested, might “encourag[e] prisoners to become religious in order to enjoy greater rights.” Id., at 266.

We granted certiorari to resolve the conflict among Courts of Appeals on the question whether RLUIPA’s institutionalized-persons provision, §3 of the Act, is consistent with the Establishment Clause of the First Amendment. 543 U.S. ___ (2004).7 Compare 349 F.3d 257, with Madison v. Riter, 355 F.3d 310, 313 (CA4 2003) (§3 of RLUIPA does not violate the Establishment Clause); Charles v.Verhagen, 348 F.3d 601, 610—611 (CA7 2003) (same); Mayweathersv. Newland, 314 F.3d 1062, 1068—1069 (CA9 2002) (same). We now reverse the judgment of the Court of Appeals for the Sixth Circuit.



The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first of the two Clauses, commonly called the Establishment Clause, commands a separation of church and state. The second, the Free Exercise Clause, requires government respect for, and noninterference with, the religious beliefs and practices of our Nation’s people. While the two Clauses express complementary values, they often exert conflicting pressures. See Locke, 540 U.S., at 718 (“These two Clauses … are frequently in tension.”); Walz, 397 U.S., at 668—669 (“The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other.”).

Our decisions recognize that “there is room for play in the joints” between the Clauses, id., at 669, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause. See, e.g.Smith, 494 U.S., at 890 (“[A] society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation … .”); Amos, 483 U.S., at 329—330 (Federal Government may exempt secular nonprofit activities of religious organizations from Title VII’s prohibition on religious discrimination in employment); Sherbert v. Verner374 U.S. 398, 422 (1963) (Harlan, J., dissenting) (“The constitutional obligation of ‘neutrality’ is not so narrow a channel that the slightest deviation from an absolutely straight course leads to condemnation.” (citation omitted)). In accord with the majority of Courts of Appeals that have ruled on the question, see supra, at 7—8, we hold that §3 of RLUIPA fits within the corridor between the Religion Clauses: On its face, the Act qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause.

Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. See Board of Ed. of Kiryas Joel Village School Dist. v.Grumet, 512 U.S. 687, 705 (1994) (government need not “be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice”); Amos, 483 U.S., at 349 (O’Connor, J., concurring in judgment) (removal of government-imposed burdens on religious exercise is more likely to be perceived “as an accommodation of the exercise of religion rather than as a Government endorsement of religion”). Furthermore, the Act on its face does not founder on shoals our prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985); and they must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths, see Kiryas Joel512 U.S. 687.8

“[T]he ‘exercise of religion’ often involves not only belief and profession but the performance of … physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine … .” Smith, 494 U.S., at 877. Section 3 covers state-run institutions–mental hospitals, prisons, and the like–in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. 42 U.S.C. § 2000cc—1(a); §1997; see Joint Statement S7775 (“Institutional residents’ right to practice their faith is at the mercy of those running the institution.”).9 RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion.10

We note in this regard the Federal Government’s accommodation of religious practice by members of the military. See, e.g.10 U.S.C. § 3073 (referring to Army chaplains); Katcoffv. Marsh, 755 F.2d 223, 225—229 (CA2 1985) (describing the Army chaplaincy program). In Goldman v. Weinberger, 475 U.S. 503(1986), we held that the Free Exercise Clause did not require the Air Force to exempt an Orthodox Jewish officer from uniform dress regulations so that he could wear a yarmulke indoors. In a military community, the Court observed, “there is simply not the same [individual] autonomy as there is in the larger civilian community.”Id., at 507 (brackets in original; internal quotation marks omitted). Congress responded to Goldman by prescribing that “a member of the armed forces may wear an item of religious apparel while wearing the uniform,” unless “the wearing of the item would interfere with the performance [of] military duties [or] the item of apparel is not neat and conservative.” 10 U.S.C. § 774(a)—(b).

We do not read RLUIPA to elevate accommodation of religious observances over an institution’s need to maintain order and safety. Our decisions indicate that an accommodation must be measured so that it does not override other significant interests. InCaldor, the Court struck down a Connecticut law that “arm[ed] Sabbath observers with an absolute and unqualified right not to work on whatever day they designate[d] as their Sabbath.” 472 U.S., at 709. We held the law invalid under the Establishment Clause because it “unyielding[ly] weigh” the interests of Sabbatarians “over all other interests.” Id., at 710.

We have no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns. While the Act adopts a “compelling governmental interest” standard, see supra, at 5, “[c]ontext matters” in the application of that standard. See Grutter v.Bollinger, 539 U.S. 306, 327 (2003).11 Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions. See, e.g., 139 Cong. Rec. 26190 (1993) (remarks of Senator Hatch). They anticipated that courts would apply the Act’s standard with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with consideration of costs and limited resources.” Joint Statement S7775 (quoting S. Rep. No. 103—111, p. 10 (1993)).12

Finally, RLUIPA does not differentiate among bona fide faiths. InKiryas Joel, we invalidated a state law that carved out a separate school district to serve exclusively a community of highly religious Jews, the Satmar Hasidim. We held that the law violated the Establishment Clause, 512 U.S., at 690, in part because it “single[d] out a particular religious sect for special treatment,”id., at 706 (footnote omitted). RLUIPA presents no such defect. It confers no privileged status on any particular religious sect, and singles out no bona fide faith for disadvantageous treatment.


The Sixth Circuit misread our precedents to require invalidation of RLUIPA as “impermissibly advancing religion by giving greater protection to religious rights than to other constitutionally protected rights.” 349 F.3d, at 264. Our decision in Amos counsels otherwise. There, we upheld against an Establishment Clause challenge a provision exempting “religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.” 483 U.S., at 329. The District Court in Amos, reasoning in part that the exemption improperly “single[d] out religious entities for a benefit,” id., at 338, had “declared the statute unconstitutional as applied to secular activity,” id., at 333. Religious accommodations, we held, need not “come packaged with benefits to secular entities.” Id., at 338; see Madison, 355 F.3d, at 318 (“There is no requirement that legislative protections for fundamental rights march in lockstep.”).

Were the Court of Appeals’ view the correct reading of our decisions, all manner of religious accommodations would fall. Congressional permission for members of the military to wear religious apparel while in uniform would fail, see 10 U.S.C. § 774as would accommodations Ohio itself makes. Ohio could not, as it now does, accommodate “traditionally recognized” religions, 221 F. Supp. 2d, at 832: The State provides inmates with chaplains “but not with publicists or political consultants,” and allows “prisoners to assemble for worship, but not for political rallies.” Reply Brief for United States 5.

In upholding RLUIPA’s institutionalized-persons provision, we emphasize that respondents “have raised a facial challenge to [the Act’s] constitutionality, and have not contended that under the facts of any of [petitioners’] specific cases … [that] applying RLUIPA would produce unconstitutional results.” 221 F. Supp. 2d, at 831. The District Court, noting the underdeveloped state of the record, concluded: A finding “that it is factually impossible to provide the kind of accommodations that RLUIPA will require without significantly compromising prison security or the levels of service provided to other inmates” cannot be made at this juncture. Id., at 848 (emphasis added).13 We agree.

“For more than a decade, the federal Bureau of Prisons has managed the largest correctional system in the Nation under the same heightened scrutiny standard as RLUIPA without compromising prison security, public safety, or the constitutional rights of other prisoners.” Brief for United States 24 (citation omitted). The Congress that enacted RLUIPA was aware of the Bureau’s experience. See Joint Statement S7776 (letter from Department of Justice to Senator Hatch) (“[W]e do not believe [RLUIPA] would have an unreasonable impact on prison operations. RFRA has been in effect in the Federal prison system for six years and compliance with that statute has not been an unreasonable burden to the Federal prison system.”). We see no reason to anticipate that abusive prisoner litigation will overburden the operations of state and local institutions. The procedures mandated by the Prison Litigation Reform Act of 1995, we note, are designed to inhibit frivolous filings.14

Should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.


For the reasons stated, the judgment of the United States Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.


1.  Petitioners Cutter and Gerhardt are no longer in the custody of the Ohio Department of Rehabilitation and Correction. Brief for Petitioners 2, n. 1. No party has suggested that this case has become moot, nor has it: Without doubt, a live controversy remains among the still-incarcerated petitioners, the United States, and respondents. We do not reach the question whether the claims of Cutter and Gerhardt continue to present an actual controversy. See Steffel v. Thompson, 415 U.S. 452, 459—460, and n. 10 (1974).

2.  RFRA, Courts of Appeals have held, remains operative as to the Federal Government and federal territories and possessions. SeeO’Bryan v. Bureau of Prisons, 349 F.3d 399, 400—401 (CA7 2003);Guam v. Guerrero, 290 F.3d 1210, 1220—1222 (CA9 2002);Kikumura v. Hurley, 242 F.3d 950, 958—960 (CA10 2001); In re Young, 141 F.3d 854, 858—863 (CA8 1998). This Court, however, has not had occasion to rule on the matter.

3.  Section 2 of RLUIPA is not at issue here. We therefore express no view on the validity of that part of the Act.

4.  Every State, including Ohio, accepts federal funding for its prisons. Brief for United States 28, n. 16 (citing FY 2003 Office of Justice Programs & Office of Community Oriented Policing Services Grants by State).

5.  The hearings held by Congress revealed, for a typical example, that “[a] state prison in Ohio refused to provide Moslems with Hallal food, even though it provided Kosher food.” Hearing on Protecting Religious Freedom After Boerne v. Flores, before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. 3, p. 11, n. 1 (1998) (hereinafter Protecting Religious Freedom) (prepared statement of Marc D. Stern, Legal Director, American Jewish Congress). Across the country, Jewish inmates complained that prison officials refused to provide sack lunches, which would enable inmates to break their fasts after nightfall. Id., at 39 (statement of Isaac M. Jaroslawicz, Director of Legal Affairs for the Aleph Institute). The “Michigan Department of Corrections … prohibit[ed] the lighting of Chanukah candles at all state prisons” even though “smoking” and “votive candles” were permitted. Id., at 41 (same). A priest responsible for communications between Roman Catholic dioceses and corrections facilities in Oklahoma stated that there “was [a] nearly yearly battle over the Catholic use of Sacramental Wine … for the celebration of the Mass,” and that prisoners’ religious possessions, “such as the Bible, the Koran, the Talmud or items needed by Native Americans[,] … were frequently treated with contempt and were confiscated, damaged or discarded” by prison officials. Id., pt. 2, at 58—59 (prepared statement of Donald W. Brooks, Reverend, Diocese of Tulsa, Oklahoma).

6.  Lemon stated a three-part test: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion.” 403 U.S., at 612—613 (citations and internal quotation marks omitted). We resolve this case on other grounds.

7.  Respondents argued below that RLUIPA exceeds Congress’ legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents’ challenges under the Spending Clause, Gerhardt v.Lazaroff, 221 F. Supp. 2d 827, 839—849 (SD Ohio 2002), and theTenth Amendmentid., at 850—851, and declined to reach the Commerce Clause ques-
tion, id., at 838—839. The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents’ further arguments. See 349 F.3d 257, 259—260, 269 (2003). Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States’ choices are not subject to congressional oversight. See Brief for Respondents 9, 25—33; cf. Madison v. Riter, 355 F.3d 310, 322 (CA4 2003). Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here. See F. Hoffmann-La Roche Ltd v.Empagran S. A., 542 U.S. 155, 175 (2004); United States v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483, 494 (2001). But, at 1—2, n. 2 (Thomas, J., concurring).

8.  Directed at obstructions institutional arrangements place on religious observances, RLUIPA does not require a State to pay for an inmate’s devotional accessories. See, e.g.Charles v. Verhagen, 348 F.3d 601, 605 (CA7 2003) (overturning prohibition on possession of Islamic prayer oil but leaving inmate-plaintiff with responsibility for purchasing the oil).

9.  See, e.g.ibid. (prison’s regulation prohibited Muslim prisoner from possessing ritual cleansing oil); Young v. Lane, 922 F.2d 370, 375—376 (CA7 1991) (prison’s regulation restricted wearing of yarmulkes); Hunafa v. Murphy, 907 F.2d 46, 47—48 (CA7 1990) (noting instances in which Jewish and Muslim prisoners were served pork, with no substitute available).

10.  Respondents argue, in line with the Sixth Circuit, that RLUIPA goes beyond permissible reduction of impediments to free exercise. The Act, they project, advances religion by encouraging prisoners to “get religion,” and thereby gain accommodations afforded under RLUIPA. Brief for Respondents 15—17; see 349 F.3d, at 266 (“One effect of RLUIPA is to induce prisoners to adopt or feign religious belief in order to receive the statute’s benefits.”). While some accommodations of religious observance, notably the opportunity to assemble in worship services, might attract joiners seeking a break in their closely guarded day, we doubt that all accommodations would be perceived as “benefits.” For example, congressional hearings on RLUIPA revealed that one state corrections system served as its kosher diet “a fruit, a vegetable, a granola bar, and a liquid nutritional supplement–each and every meal.” Protecting Religious Freedom, pt. 3, at 38 (statement of Jaroslawicz). The argument, in any event, founders on the fact that Ohio already facilitates religious services for mainstream faiths. The State provides chaplains, allows inmates to possess religious items, and permits assembly for worship. See App. 199 (affidavit of David Schwarz, Religious Services Administrator for the South Region of the Ohio Dept. of Rehabilitation and Correction (Oct. 19, 2000)) (job duties include “facilitating the delivery of religious services in 14 correctional institutions of various security levels throughout … Ohio”); Ohio Dept. of Rehabilitation and Correction, Table of Organization, available at (department includes “Religious Services” division) (as visited May 27, 2005, and available in Clerk of Court’s case file); Brief for United States 20, and n. 8 (citing, inter aliaGawloski v. Dallman, 803 F. Supp. 103, 113 (SD Ohio 1992) (inmate in protective custody allowed to attend a congregational religious service, possess a Bible and other religious materials, and receive chaplain visits); Taylor v. Perini, 413 F. Supp. 189, 238 (ND Ohio 1976) (institutional chaplains had free access to correctional area)).

11.  The Sixth Circuit posited that an irreligious prisoner and member of the Aryan Nation who challenges prison officials’ confiscation of his white supremacist literature as a violation of his free association and expression rights would have his claims evaluated under the deferential rational-relationship standard described in Turner v. Safley, 482 U.S. 78 (1987). A member of the Church of Jesus Christ Christian challenging a similar withholding, the Sixth Circuit assumed, would have a stronger prospect of success because a court would review his claim under RLUIPA’s compelling-interest standard. 349 F.3d, at 266 (citing Madison v.Riter, 240 F. Supp. 2d 566, 576 (WD Va. 2003)). Courts, however, may be expected to recognize the government’s countervailing compelling interest in not facilitating inflammatory racist activity that could imperil prison security and order. Cf. Reimann v.Murphy, 897 F. Supp. 398, 402—403 (ED Wis. 1995) (concluding, under RFRA, that excluding racist literature advocating violence was the least restrictive means of furthering the compelling state interest in preventing prison violence); George v. Sullivan, 896 F. Supp. 895, 898 (WD Wis. 1995) (same).

12.  State prison officials make the first judgment about whether to provide a particular accommodation, for a prisoner may not sue under RLUIPA without first exhausting all available administrative remedies. See 42 U.S.C. § 2000cc—2(e) (nothing in RLUIPA “shall be construed to amend or repeal the Prison Litigation Reform Act of 1995”); §1997e(a) (requiring exhaustion of administrative remedies).

13.  Respondents argue that prison gangs use religious activity to cloak their illicit and often violent conduct. The instant case was considered below on a motion to dismiss. Thus, the parties’ conflicting assertions on this matter are not before us. It bears repetition, however, that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area. See supra, at 12—13. Further, prison officials may appropriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic. Although RLUIPA bars inquiry into whether a particular belief or practice is “central” to a prisoner’s religion, see 42 U.S.C. § 2000cc—5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 401 U.S. 437, 457 (1971) (“ ‘[T]he “truth” of a belief is not open to question’; rather, the question is whether the objector’s beliefs are ‘truly held.’ ” (quoting United States v. Seeger, 380 U.S. 163, 185 (1965))).

14.  See supra, at 13, n. 12.

Professor Marci A. Hamilton, Religion, the Rule of Law, and the Good of the Whole: A View from the Clergy, 18 J. L. & Politics 387 (2002)


I. Introduction

“The separation of church and state” is a malapropism, in the sense that it awkwardly captures the constitutional arrangement between church and state. While it rightly captures the notion that church and state are to have distinguishable identities, and distinguishable interests, it fails to come to grips with the reality that religion and the state must and do coexist in the lives of the people. This coexistence was not questioned in the latter half of the eighteenth century, leading up to the framing of the Constitution. Nor should it be today. While the debate over the meaning of Thomas Jefferson’s phrase “separation of church and state” 1 may continue indefinitely, there can be little question that the Framers, the text of the Constitution, and its realization in American society point to one fact: the two were intended to and do in fact exist together in a dialectical relationship of difference and interaction.

This principle is a direct application of the larger principle used to explain church-state relations in the Supreme Court’s decision in Lynch v. Donnelly: “No significant segment of our society and no institution within it can exist in a vacuum or in total or absolute isolation from all the other parts, much less from government. “It has never been thought either possible or desirable to enforce a regime of total separation… . .'” 2

Yet, how may government and religious entities coexist and interact under the First Amendment? To admit their mutuality does  [388]  not answer where the Constitution draws the line between their independent though interrelated existences. To answer this question, one must look not only to the Free Exercise and Establishment Clauses, but also to the structures of lawmaking within the Constitution. This Article reasons that when understood together, it is possible to know when law or religion rightfully may claim the upper hand of the believer’s allegiance and which branch is best suited to that determination. With the Supreme Court rightly having rejected the theory that the religious demand must always or even generally trump the law, the question left is when government may adjust the law to lighten burdens on religious believers through permissive legislative accommodation.

While “separation” treats church and state as mutual exiles, the question of permissive accommodation foregrounds the inescapable fact that religion and politics do operate together. They always have, and they always will. The Constitution may put the brakes on some results of that collaboration or relationship, 3 but it cannot hope to forbid either the exchange between or the inevitable mutual attraction of the two most authoritative structures of human existence.

So how are we to understand when the legislature may bow to the requests of religious claimants and when not? How may we understand when the religious believer or organization must defer to the law even when it conflicts with religious conduct?

The debate over the superiority of church or state mandate was energized when Professor Michael McConnell argued in an influential Harvard Law Review article that religious conduct, in general, ought to trump inconsistent law. 4 Using a blend of historical sources and arguments from a strand of evangelical theology, he argued for a constitutional right to avoid laws that conflict with religious conviction, which I will call the mandatory judicial accommodation thesis. 5Professors Philip Hamburger and Ellis West did an excellent job showing that the history does not [389]  support the concept of mandatory accommodation. 6 Even though the Supreme Court, in Employment Div. v. Smith, plainly rejected the mandatory judicial accommodation thesis nearly simultaneously with the publication of Prof. McConnell’s article, 7 the article stakes out an important position in the debate.

The question left open by the Supreme Court’s 1990 decision in Employment Div. v. Smith-and by the Supreme Court’s silence on the topic since Smith-is when accommodation is consistent with the right principles governing church and state’s coexistence. In rejecting McConnell’s mandatory judicial accommodation thesis, the Court did not reject accommodation altogether. Rather, the Court in Smith embraced the notion of permissive legislative accommodation: even though legislatures are not required to accommodate religious conduct at odds with generally applicable laws, they may consider and enact accommodations when doing so is consistent with the public good. 8 Thus, the Court did not rush to the opposite of McConnell’s position-that the rule of law must always trump or is ontologically superior to religious obligation-but rather simultaneously acknowledged the validity of the rule of the law and the social instinct that would avoid unnecessary burdens on religious conduct not at odds with the greater good:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a  [390]  society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. 9

In other words, the Court assumed in this religion-friendly polity that requests for exemption would be frequent and treated seriously. In fact, they are.

The false inference drawn by many regarding Smith was that the Court was prescribing a rampant majoritarianism that would be unfriendly to minority religions. 10 Thus, rejection of the mandatory judicial accommodation thesis plus the move to the political forum was thought to be a dramatic setback for religious liberty, or so the argument went. 11

Unfortunately, this point was reinforced by the Court’s statement that:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not  [391]  widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. 12

This concession on the part of the Court was as empirically wrong as it was unnecessary, and it betrays the actual structure of representation that legitimates legislative accommodation, a point I will go into in more detail in Section III.

Because McConnell argued that the believer cannot fail to do God’s bidding, and did not acknowledge a religious obligation to obey duly enacted law, an inescapable, underlying assumption of his thesis was that mandatory exemptions are religion-friendly, or required by anyone who takes religious devotion seriously. That is to say: within the universe of his reasoning, a mandatory exemption regime is pro-religion, with the corollary being that the Smith constitutional architecture is hostile to religion. That is precisely the message McConnell and others took to the public and the academy immediately following Smith. 13

This view, however, is an oversimplification that depends on a particular theological perspective, as opposed to a belief held by persons of all, or even most, religions. In fact, it does not reflect the view of the majority of religious leaders at the time of the framing, many of whom were instrumental in instituting and explaining to the people the operation of the rule of law as it applies to the actions of religious believers. 14 It is a fact-as true then as it is today-that some of the most influential leaders of United States society on issues of politics are members of theclergy. (It would be odd indeed were this not true, given the vast numbers of Americans who are [392]  religious. 15 Though it is empirically inaccurate to say that this is a Christian society, it is without question a religious society.)

From the mid-to the late-eighteenth century, many members of the clergy-in their sermons-helped to establish the relationship between religious conviction and the rule of law. As the shape of an American polity evolved through the Revolution, the Articles of Confederation, and finally the Constitutional Convention, members of the cloth addressed this pivotal issue directly. Unlike Deist Thomas Jefferson, though, they did not presume a stark separation of church and state, but rather mulled over the hard question of the coexistence in any citizen’s life of the demands made by the church and by the state.

The accumulated range of answers from later eighteenth-century clerics reveals a sophisticated set of presuppositions about the proper relationship between the church and the state that betray the easy assumption that application of the rule of law is hostile to religious individuals or faith. These views (1) falsify the either-or choice (for or against religion) implied by the mandatory judicial accommodation thesis as sketched by Prof. McConnell; (2) validate the criticisms levied against the McConnell formulation by Philip Hamburger and Ellis West; and most important for purposes of this Article, (3) pave the way for a legislative permissive accommodation that is in harmony with that described in Smith.

The sermons undermine McConnell’s implicit presupposition that the application of laws to religious conduct at odds with the law is anti-religious. At the very least, hearkening back to these members of the clergy makes clear that in most circumstances allegiance to the rule of law (passed by a duly elected representative whose power is derived from the people) was considered an obligation of a religious person.

The latter eighteenth century sermons reveal that religious leaders of the day did not envision a society that would permit any person to be a “law unto himself.” 16 Their vision was more collective, or at least  [393]  more community-based. For believers to achieve true liberty they needed to obey the laws enacted by the duly elected legislatures, for the sake of order and the public good. 17 The social compact generated not a deal whereby the believer could in good conscience retreat from society’s requirements, but rather a reciprocating compliance. The rule of law sat firmly in a theological vision of mutual reciprocity and obligation.

It is this duty to obey, and duty to the good of the whole, which sets this religious vision apart from the more recent theories that would interpret the Free Exercise Clause as a requirement of “equal treatment” or “equal regard” of atomistic individuals. 18 The vision painted in these sermons is not one wherein religious individuals meld into society, where all must be treated alike, but rather one in which religious individuals bear special obligations to serve the greater good. To state it in other words, the religious individual is under a stronger obligation to society and its laws than the nonbeliever. The claims to mandatory judicial accommodation turn this understanding on its head by treating the religious believer as a weak member of society that must be accorded special treatment in order to sustain belief. In the sermons of the eighteenth century, the greater good was achieved through believers who conformed their conduct to enacted law.

Yet, the obligation imposed was not a faithless or blind obedience. The obedience was due to just laws, which were defined as the creation of governments duly elected by the people and operating in the public good. 19 When laws became tyrannical, the people had reason and justification to depose their rulers, but not the rule of law itself. Even so, John Witherspoon warned against revolting too soon in light of the cost to society. Because “resistance … is subverting the society altogether, [it] is not to be attempted till the government is so corrupt, as that anarchy and the uncertainty of a new settlement is preferable to the continuance as it is.” 20

[394]  This Article is organized into three sections. First, it lays out the various explanations provided by members of the clergy regarding the rule of law and religious conduct in the half century culminating in the Constitution, for the purpose of more fully laying the groundwork for understanding where the Constitution draws the line between legal obligation and religiously motivated conduct. Second, it sketches the legitimate legislature that culminated in the Constitution and that could compel obedience from religious believers, under the views of the religious leaders at the time. Third, it shows how the Supreme Court’s contemporary jurisprudence is consistent with this early vision. By permitting accommodation by duly enacted legislators, the Court has placed accommodation decision-making, and therefore religious believers and lawmakers, under the shared horizon of the good of the whole. Thus, the vision painted by the Supreme Court in Smith is consistent with and supported by the predominant religious viewpoint at the time of the framing and before.

II. Eighteenth Century Clergy and Explanations of
the Rule of Law

As the experiments with democracy around the world in the last thirty years have taught, the rule of law cannot operate without the widespread acceptance of this principle among the people. 21During the latter half of the eighteenth century, such acceptance in this country was significantly furthered by sermons in a wide range of Protestant churches-Baptist, Presbyterian, Congregational, and Episcopalian. 22

[395]  Whether religious believers would be subject to the general laws of the new country was a topic that was frequently on the minds of preachers in the latter half of the eighteenth century. Their sermons, as well as governing documents of the churches, show the religious leaders of eighteenth-century society articulating a fairly cohesive vision for the coexistence of God’s law and civil law. I do not intend to overstate the consistency of their claims, because there are dissenting, minority views and not every preacher adopts every tenet discussed here. Nevertheless, there is a generally accepted view that is sufficiently repeated to justify the claim that it was an important and formative element in the social mix.

To be sure, the ideas that the various sermons set forth are consistent with and can even plausibly be traced not only to theology, but also to political philosophy of the time. In particular, many of the sermons reference the work of John Locke. The purpose of this Article is not to show the ultimate repository of any particular idea, however, but rather the sociological reality that religious leaders at the time of the formation of the Constitution conveyed a vision to their members: Congregants were urged by their religious leaders to follow the rule of law on a number of grounds.

The discussion of religion and the rule of law in the pulpit usually proceeded by an acknowledgment of the existence of two concurrent realms, one civil, one religious, each with a rightful pull on the citizen. While the argument for the superiority of God’s obligations is made, a point consistent as far as it goes with the mandatory exemption thesis, a number assert that the civil law is in fact a form of God’s law, a turn in the argument that undermines the mandatory exemption thesis. Believers were not to focus solely on their private understanding of what God asks of them individually, but rather, as part of their Christian practice, to take into account the good of the whole in their obedience to the law. They also argued, in the larger picture, that obedience to the civil law is necessary for the realization of true liberty and that the freedom of religion does not extend to conduct beyond worship. Far from the overly simplified assumption that conflicting laws automatically should give way to religious claims, eighteenth-century religious leaders cautioned their members of the perils to the broader society of failing to follow the law.


A. Church and Civil Government: Concurrent and Distinguishable Realms of Power

In eighteenth century sermons, there was a repeated emphasis on the concurrent and distinguishable realms of power, church and state. Each was to have its rightful, limited claim on human conduct and mutual boundaries. 23

Civil law made legitimate claims on religious believers, when civil law operated in the proper realm. For example, Elisha Williams in 1744 stated that “obedience is due to civil rulers in those cases wherein they have power to command, and does not call for it any farther.” 24 In other words, according to Williams, “The ground of obedience cannot be extended beyond the ground of that authority to which obedience is required.” 25 The proper ground included the preservation of “life, liberty, money, lands, houses, family, and the like.” 26 Three years later, Charles Chauncy echoed that civil “rulers … have an undoubted right to make and execute laws, for the publick good.” 27 The horizon under which legislatures were to make law was the public good. Per John Lathrop, “If the essential parts of any system of civil government are found to be inconsistent with the general good, the end of government requires that such bad systems should be demolished, and a new one formed, by which the public weal shall be more effectually secured.” 28

[397]  The two domains were coterminous and mutually exclusive. Thus, civil government’s proper realm ended when it attempted to “establish any religion” 29 by instituting or requiring “articles of faith, creeds, forms of worship or church government [in part because] … these things have no relation to the ends of civil society.” 30

To be sure, the clergy did not intend to rubber stamp the rule of any civil government per se, but rather only that government that flows directly or indirectly from the people and that is obligated to the public good. The law that binds is the law derived as follows:

Reason teaches men to join in society, to unite together into a commonwealth under some form or other, to make a body of laws agreeable to the law of nature, and institute one common power to see them observed. It is they who thus united together, viz. the people, who make and alone have right to make the laws that are to take place among them; or which comes to the same thing, appoint those who shall make them, and who shall see them executed. For every man has an equal right to the preservation of his person and property; and so an equal right to establish a law, or to nominate the makers and executors of the laws which are the guardians both of person and property. 31

For at least one preacher in 1784, the fact that citizens have legitimized the government by choosing their rulers leads to the conclusion that such rulers are to be obeyed. 32

Aside from the requirement that the people play a role in choosing their leaders, there is no necessary prescription for the  [398]  form of government. Rather, the right government is to be fit to the particular community. 33

Part of this shared vision does depend on a notion of differentiation between church and state, but it is not a total separation that forces the believer to choose one sphere over the other, but rather a distinction of spheres, each with a legitimate, concurrent, and strong pull on the believer’s allegiance. Thus, the free exercise of religion was to be pursued not in isolation but rather in “so far as may be consistent with the civil rights of society.” 34 Taking the image of concurrent but distinguishable realms to its logical end, Isaac Backus reasoned that when each is functioning properly within its own realm, “the effects are happy, and they do not at all interfere with each other.” 35 The key to such happiness lies in their separate spheres, with “mischiefs” ensuing whenever “these two kinds of government … have been confounded together.” 36

The one realm reinforced allegiance to the other. The obligation to obey the civil law was treated as part of the Christian’s obligation. Peace was to be achieved when men lived under these two authoritative regimes, because Christians “are taught to obey [civil] magistracy … .” 37 Thus, the allegiance to the Christian Church carried with it an allegiance to laws duly enacted by those who were appointed by the people and entrusted with serving the public good. 38


B. Reasons to Obey the Civil Law

Far from urging civil disobedience, many eighteenth century sermons exhorted believers to obey the civil law. There are three reasons offered by the clergy to obey the law. First, the law is given by God and therefore the believer must obey. Second, the rule of law serves the good of the whole. Third, which is a subset of the second justification, true or real liberty cannot be achieved in the absence of the rule of law functioning in a system appointed by the people.

1. The Law Is God-Given

For many of the preachers in the eighteenth century, God is present in both types of government-civil and ecclesiastical-in the sense that God has instituted government and that reason is founded in God. In a strong challenge to the notion that church and state are completely separate, Charles Chauncy in 1747 rejected the notion that civil government is purely a “humane constitution.” 39Rather, civil government arises out of reason and therefore is “essentially founded on the will of God. For the voice of reason is the voice of God.” 40 Indeed, God’s hand is in the very institution of civil government. 41

Applying these grounding principles, Elizur Goodrich preached in 1787 that “transgressing the laws of society … [will] expose ourselves to the high displeasure of Almighty God.” 42 In other words, the obligation to obey the law is not merely based on principles of reason, but rather is a directive from God.

2. For the Good of the Whole

In contemporary debate, the argument is oft raised that churches and their believers have a right to be left alone by the law, to isolate themselves from the community in effect. Indeed, one of the most  [400]  common justifications for the mandatory judicial exemption from the law is that the law should leave religious believers alone. In other words, no regulation affecting religion should be the baseline. 43

This is a vision that is alien to the religious leaders of the latter half of the eighteenth century. It is as though history is being read through the anachronistic prism of Brandeis’ famous twentieth century argument for the “right to be let alone.” 44 By contrast, in the eighteenth century sermons, there is a strong focus on the importance of believers contributing to the greater good, the community at large. In Nathaniel Eells’ words in 1743, “We are not made for our selves alone, but we are made to help in making the World better.” 45 Parishioners were exhorted to “promote the public peace and happiness,” not just their private salvation. 46 The failure to submit to the “just commands of the civil authority” was contrary to God’s will and worked “an injury … to the community.” 47

On these terms, there would be no true liberty, but rather only anarchy, in the isolationist Brandeis-like vision. Thus, “public good is not a term opposed to the good of individuals; on the contrary, it is the good of every individual collected.” 48 The Protestant preachers rejected the notion that Christians can live apart from society, isolated and not responsible for the common good. This element, in and of itself, points away from McConnell’s mandatory accommodation thesis, which rests on a vision of the individual, separate from society, who must foreswear the obligations of society in order to serve God. McConnell reasoned in a way directly contrary to the dominant eighteenth century vision, saying “If conscience must be respected, and if conscience can be defined in no other way than by the individual believer, then doesn’t liberty of  [401] conscience give believers a license to violate laws vital to social order?” 49 The sermons seem to say quite the opposite.

The move to the public good was coincident and further encouraged by the need following the Revolution and the era of the Articles of Confederation and the framing of the Constitution to institute a national order and identity. “With God’s help they would build a harmonious society of “comprehensive benevolence.'” 50 “”Let regard be had only to the good of the whole’ was the constant exhortation by publicists and clergy.” 51

Indeed, one of the most potent reasons given to distrust Catholics at the time was their predilection to esteem separate societies, such as monasteries and convents. Such isolation was a threat to the unity of the community that was emerging in the society during the latter half of the eighteenth century.

To secure true liberty, Christians were to be part of the tapestry of the society, contributing to its highest ends: peace, welfare, and security. “True liberty was “natural liberty restrained in such manner, as to render society one great family; where every one must consult his neighbour’s happiness, as well as his own.'” 52 Isaac Backus further explained the principle as follows: “Each rational soul, as he is a part of the whole system of rational beings, so it was and is, both his duty and his liberty to regard the good of the whole in all his actions.” 53

As parts of the fabric of society, Christians had obligations to ensure that the greater good was secured to the society as a whole in many categories. In Jonas Clarke’s words,

In a word, as by the social compact, the whole is engaged for the protection and defense of the life, liberty and property of each individual; so each individual owes all that he hath, even life itself, to the support, protection and defence of the whole, when  [402]  the exigencies of the state require it. And no man, whether in authority or subordination, can justly excuse himself from any duty, service or exertions, in peace or war, that may be necessary for the publick peace, liberty, safety or defense, when lawfully and constitutionally called thereto. 54

The alternative to this vision was anarchy, division, and war. Thus, God’s directive to seek peace was to be achieved by the body of Christians operating as a community together pursuing the common good.

Late in the eighteenth century, Jonathan Edwards reaffirmed this view of Christian community with an obligation to the common good: “it especially becomes this [Christian family], visibly to unite, and expressly to agree together in prayer to God for the common prosperity.” 55 Under this understanding, believers were obliged not simply to look after their own interests and to follow duly enacted law, but rather to embrace the needs of the polity as a whole as part of the Christian mission here on earth.

3. Obedience to the Rule of Law Is Necessary for True Liberty

Real liberty was to be achieved through obedience to law as well as the good of the whole. John Witherspoon taught his students, a number of whom later became Framers including James Madison, at the Presbyterian College of New Jersey, now Princeton, that the “true notion of liberty is the prevalence of law and order, and the security of individuals… .” 56 The various eighteenth-century sermons state that liberty from the law of a legitimate government is no liberty at [403]  all. Government is necessary and obedience to just laws is necessary for there to be “real liberty.” Indeed, “it is so far from being necessary for any man to give up any part of his real liberty in order to submit to government, that all nations have found it necessary to submit to some government in order to enjoy any liberty and security at all.” 57

The peace and good order imposed by a just government, i.e., one chosen by the people, was not to be undermined by the religious believer.

When a man adopts such notions as, in their practice, counteract the peace and good order of society, he then perverts and abuses the original liberty of man, and were he to suffer for thus disturbing the peace of the community, and injuring his fellow-citizens, his punishment would be inflicted not for the exercise of a virtuous principle of conscience, but for violating that universal law of rectitude and benevolence which was intended to prevent one man from injuring another.58

Thus, the laws ensuring peace, tranquility, and order obligated the believer and trumped counter-instincts for the purpose of achieving the fullest liberty. “It is true, the interests of society require subordination, but this deprives none of liberty, but helps all to enjoy it better.” 59

C. Conduct, Even When Religiously Motivated, Is Regulable

One of the most interesting aspects of the sermons, taken as a whole, is that they are consistent in naming the arenas over which the church has complete control as they leave the achievement of peace and order to the civil government. The churches’ domain  [404]  included the “power to make or ordain articles of faith, creeds, forms of worship or church government.” 60 Conversely, “the duty of magistrates is not to judge of the divinity or tendency of doctrines” 61 but rather to constrain actions that harm others and the public good. “Disturbers … ought to be punished.” 62

The ecclesiastical domain ended and the civil domain appropriately held sway when the beliefs, faith, worship, and church governance turned into “overt acts of violence [or effect].” 63 So even when overt acts involved the subject areas of ecclesiastical government, the civil authority permissibly dominated. Thus, religious defenses to a wide range of antisocial conduct, such as “murder, theft, adultery, false witness, and injuring our neighbor, either in person, name, or estate” were immoral or irreligious or both. 64

The sermons of the latter half of the eighteenth century raised and rejected the possibility that religious fervor could justify or excuse a violent crime:

A Shaking-Quaker, in a violent manner, cast his wife into a mill-pond in cold weather; his plea was, that God ordered him so to do. Now the question is, Ought he not to be punished as much as if he had done the deed in anger? Was not the abuse to the woman as great? Could the magistrate perfectly know whether it was God, Satan, or ill-will, that prompted him to do the deed? The answers to these questions are easy.

In the year of 1784, Matthew Womble, of Virginia, killed his wife and four sons, in obedience to the Shining One … to merit heaven by the action … .  [405]  Neither his motive, which was obedience, nor his object, which was the salvation of his soul had any weight on the jury. 65

In other words, actions taken in contravention of public peace and safety, under a civil government chosen by the people, left the perpetrator, even if a religious believer, vulnerable to civil action. 66 “The subjects of the kingdom of Christ, claim no exemption from the just authority of the magistrate, by virtue of their relation to it. Rather they yield a ready and cheerful obedience, not only for wrath, but also for conscience sake. And should any of them violate the laws of the state, they are to be punished as other men.” 67

The portrait of society painted by the sermons of the eighteenth century brought Christians from a wide sweep of denominations under a shared horizon of working toward the public good in concert with the government, a task that required obedience to duly enacted law governing actions. Backus captured this worldview when he explained that religious believers had “an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby.” 68

The following discussion of the Constitution’s structure of representation shows how the legislature in particular fits under this horizon.

III. The Legitimate Legislature

The sermons depicted believers in a joint enterprise with government to pursue the public good through their actions, which included obedience to duly enacted laws. In the absence of a  [406] government oriented toward the public good, their vision could not become real.

The exception that proves the rule of the foregoing (and the following) can be found in sermons delivered during the Revolution. The Revolution was sparked by rebellion against “virtual representation,” the claim in Britain that the Parliament could represent colonists’ views without representation by colonists. 69 For the colonists, virtual representation was not legitimate representation in the interest of the common good, but rather a usurpation of their rightful role in lawmaking that affected them. Accordingly, many members of the clergy counseled their members to refuse to obey the laws handed down by Parliament and to revolt. 70 For these preachers, the years leading up to the Revolution were a time when the true rule of law had been suspended by Britain vis-a-vis the colonies, and therefore obedience to law was not required. The foundation of their charge to obey the law was the legitimate legislature.

The following describes the Constitution’s structure of a legitimate legislature intended to be oriented primarily toward the public good, and away from personal, self-serving interests of any particular representative. This was the legislature the clergy had in mind.

For many of the religious leaders of the eighteenth century, two elements were essential in this formula. First, the government must be chosen by the people. 71 Second, the lawmaker must be capable of serving and striving for the common good, which was the proper goal of the government. 72 In Witherspoon’s words, there needed to be “wisdom to plan proper measures for the public good [and f]idelity to have nothing but the public interest in view.” 73

The Constitution crafted lawmaking bodies-the Congress and, via the Guarantee Clause, the state legislatures-that satisfy these requirements. They are chosen by the people through constitutional [407]  ratification and election. Though the Convention was not driven solely by the views of religious leaders, of course, the system of representation consciously was constructed to make it possible for representatives to strive for the common good.

The following is an explanation of the structure of representation that orients representatives toward the common good. In an article on religious jurisprudence, it may seem overly detailed. It is necessary, however, to explain fully the legislative process on which the eighteenth century sermons rested and to which the Court in Smith handed accommodation. Without this understanding, it is impossible to judge adequately where permissive legislative accommodation is or can be a good thing or to judge the constitutionality of any particular accommodation.

A paradox of distrust and hope, with strong Calvinist undertones, played a role in the Framers’ discussions during the framing of the United States Constitution, and in particular the legislative branch. 74 The Rev. John Witherspoon’s statement that “nothing is more natural than for rulers to grasp at power” is a commonplace. 75 Wherever the Framers looked, they accepted as a fact that men could and would use their power to accomplish evil, rather than good: “From the nature of man we may be sure, that those who have power in their hands will not give it up while they can retain it. On the contrary we know they will always when they can rather increase it.” 76 In James Madison’s words, “the truth was that all men having power ought to be distrusted to a certain degree.” 77

[408]  The fact that the Framers were consumed with identifying and preventing abuses of power (whether through inaction or aggression), did not translate into unanimity as to which particular governmental structure would tend to tyranny and which would not. Rather, these conclusions were empirical. In the context of discussing whether there ought to be popular elections, Mason stated the matter bluntly: “At one moment we are told that the Legislature is entitled to thorough confidence, and to indefinite power. At another, that it will be governed by intrigue & corruption, and cannot be trusted at all.” 78 James Wilson responded that “the legislature might deserve confidence in some respects, and distrust in others.” 79 In short, the disagreements at the Convention did not arise from different assessments of human nature or different judgments regarding ancient or modern forms of government, but rather revolved around the different empirical assessments made by each of the Framers with respect to each social entity examined and its ability to serve the greater good. Federalists distrusted state legislatures, Anti-Federalists distrusted the new federal powers, and each Framer brought his own individual assessment of whom and what to trust to the Convention.

A. The Rejection of Self-Rule

The Constitution plainly rejects direct democracy as did Rev. John Witherspoon, mentor to James Madison, who had the following to say about direct rule by the people:

Pure democracy cannot subsist for long, nor be carried far into the departments of state-it is very subject to caprice and the madness of popular rage. They are also very apt to chuse a favourite, and vest him with such power as overthrows their own liberty,-examples, Athens and Rome. 80

[409]  The Constitution does not provide a single mechanism for the people to rule directly on any issue. There was a time-around the Revolution-when legislators were considered servants to their constituents, subject to citizen direction, and beholden to citizens for the wisdom necessary to solve social problems. 81 At that time, there was a widespread belief in the ability of the people to manage government functions directly coupled with a corresponding disillusionment with Parliament’s conduct. 82 This theory of representation, when put to the test in the post-Revolutionary state constitutions, was found to be misguided. Legislatures controlled by the people tended not to serve the public interest. The Framers, pragmatic as always, took this experience into account as they moved toward a very different idea of representation for the Constitution.

Before the Revolution, the colonists chafed under the fact that they had no representation in Parliament, but were nonetheless ruled by it. Britain’s defenders attempted to justify the colonial arrangement as an example of “virtual representation.” 83 With no elected representatives in Parliament, the colonists were told that their interests were being virtually represented by British members of Parliament. Parliament was the supreme ruler of the realm of which the colonies were a part and whatever was in the interest of the realm would also be in the interest of the colonies, or so the reasoning went. 84 On the other side of the Atlantic, the equation of the realm  [410]  with the colonies simply was not persuasive. Virtual representation was no representation. Rev. John Witherspoon among others counseled war in the face of Parliament’s usurpation of power against the colonies. 85

The Revolution succeeded in casting off the yoke of the Parliament and the monarchy. However, it left the American citizens with the question of where to lodge governing power. Thus, during the pre-and post-Revolutionary years, sermons consistently referred to “legitimate” lawmakers, those chosen by the people, but did not specify more particulars as the emerging polity felt its way towards a workable system. The standard against which each successive form was judged, however, was the good of the whole identified in the sermons. 86 In the literature of the day, Britain, from its citizens to its government, was portrayed as utterly corrupt. In contrast, the colonists praised themselves as a more virtuous lot. 87 Thus, they flirted with the heady concept that ruling power should reside with the people. There was no movement to institute town-meeting style democracy in all the states, but following the Revolution many of the state legislatures were constructed so as to give the people oversight authority over their representatives. 88 In another move intended to hand power to the people by wresting it from corruptible institutions, many state executives were not given power. 89 By handing the bulk [411]  of governing authority to the people, the post-Revolutionary era expected to avoid the “tyranny” against which the war had been fought.

If there ever were a moment in American history when direct democracy or self-rule might have obtained a toehold, it was the post-Revolutionary era. The drift toward direct democracy, though, was impeded by the negative consequences of popular control unchecked by the executive: civil wars, impending anarchy, and a lack of leadership of the whole, especially on issues involving the economy and national defense. 90 Popular control of legislators had proven inadequate to serving the good of the whole.

The people-dominated legislatures proved no more capable of guaranteeing stability or good government than the British scheme. The state legislatures were transformed into collections of secret cabals, ironically becoming irresponsible and unresponsive to the people who were supposed to control them. 91 Only one decade after the states turned to the people to rule through their state legislatures, the Articles of Confederation were declared a failure and the Constitutional Convention was assembled. 92

The Framers were very forthright, in their belief that control by the people is a scourge. 93Speaking from their own experience, they were in broad and vocal agreement that rule by the people is mob rule and is incapable of serving the national interest or the higher  [412]  good.94 In his Notes of the Convention Debates, Madison explained why Rome had rejected direct democracy: “because the people by reason of their numbers could not act in concert; were liable to fall into factions among themselves, and to become prey to their aristocratic adversaries.” 95As a practical matter, the people could not be entrusted with ruling power, though they were the source of the power wielded by their representatives.

Within the Framers’ discourse, direct democracy conflicted with their chosen model of legislative representation. Direct democracy demands that the individual be empowered to reach governing decisions. Representation, in the Framers’ scheme, places the responsibility for decision-making in other hands. 96 The failure of the state constitutions to bring peace and prosperity following the Revolution led the Framers to conclude that representation is unavoidable as a pragmatic matter.

A caveat is in order. The Framers only rejected direct rule as a means of public governance. Private control of private concerns remained an important ideal, as the sermons’ reference to two spheres-one church, one government-reveals. 97 The Constitution aims to find the optimal role for the representative that ensures order as it preserves liberty, for the purpose of serving the greater good.

B. Conventional Wisdom and the Legislative Process

To explain fully the legislative process, it is necessary to unmask current false presuppositions. The Congress is widely assumed today  [413]  to be controlled by interest groups, and the leap is too often made that that feature necessarily and fully describes the nature of the process. The dominant legislative paradigm holds that legislators are self-serving, weak, blindly ambitious, and that interest groups are disproportionately powerful and resourceful. Legislators are depicted as mere salespeople of votes. 98 Others view them as single-minded reelection seekers. 99 Still others view legislators as motivated entirely by self-interest. 100 Interest groups are depicted as powerful  [414]  private elements struggling over legislative outcomes in the virtual absence of legislators. 101 Day-to-day observers of the legislative process have reached similar conclusions.102

According to these descriptions, the legislator is, at best, a toll-gate and, at worst, a pernicious rent-seeker who operates only out of a self-interest narrowly understood. Certainly, in many circumstances, they describe some instances of current legislative practice. But they have come to be taken as inevitable realities. As the interest group model has come to dominate, the role of the representative in serving the greater good has nearly disappeared. 103 If this were the structure of representation, the concerns expressed about the fairness of throwing constitutionally required accommodation to the legislature would have serious weight.

Rent-seeking behavior is not a necessary condition for legislation, nor does it express the unalterable nature of the legislator in the system constructed by the Constitution. It is a real possibility, nothing more and nothing less. Counterbalancing the possibility of thoroughgoing selfish behavior is the human capacity, identified as essential for other functions within the practice of law and  [415]  lawmaking, for altruism, 104 integrity, 105 and empathy. 106 In short, those are the characteristics that constitute a legislator’s unselfish capacity to seek the good of the whole. Fortunately, we do not have to choose between the two extremes of human behavior in crafting a theory of legislation. 107 Even a cursory observation of one’s own conduct reveals that each of us is capable of operating within the spectrum of possibilities between the two extremes as well as at either extreme. 108 Legislators certainly must, as human beings, share this capacity for a range of motives and behaviors. It is precisely this character of human experience that motivated the Framers and that is repeatedly revealed in the eighteenth-century sermons of religious leaders.

If the negative portrait of the legislator described the necessary qualities of the legislator representation should be abandoned altogether. The Constitution establishes a legislative scheme that is intended to orient legislators toward the best interests of all, to transcend their individual interests, and to serve the nation as a whole.


C. The Constitution’s Model of Representation

James Madison believed that the most important element of the Constitution was its institution of a system of representation. 109 There are two fundamental characteristics of representation as adopted by the Framers: the exercise of independent judgment and the maintenance of continual communication with constituents. The constitutional scheme places burdens on both representatives and the people: the former to perform to high standards in the interest of the whole and the latter to monitor and check the former.

1. The Source of the Legislator’s Authority and the Circumstances of Its Delegation

The two primary architects of representation at the Convention were James Madison and James Wilson. They identified the initial source of governing power as the people. That does not mean, however, that they would rest ultimate governing power in the people per se.

According to the Constitution, the constituent is the source of whatever power the representative has, and an election legitimizes the transfer of authority from the people to the legislator. The principle of popular sovereignty centers the relationship between the people and their representative because “the people retain the supreme power.” 110 The three branches of government may serve as checks upon each other, but the people are the ultimate check on all three. In James Wilson’s words, “in all governments, whatever is their form, however they may be constituted, there must be a power established from which there is no appeal … . The only question … is where that power is lodged? … It remains and flourishes with the people.” 111 For Wilson, neither kings, nor legislatures, could hold final or absolute power over the people. Rather, the people are  [417]  the source of sovereignty. 112 Their “consent is the sole obligatory principle of human government and human laws.” 113 Thus, representatives act “not by their own power, but by the power of those whom they represent.” 114

Power is transferred from constituent to representative out of necessity. If self-rule were the sine qua non of right rule, such a transfer would be anathema. Government by self-rule, however, is impracticable and ill suited to serving the common good. 115 Even at the time of the framing, actual self-rule was a practical impossibility. 116 In a complex and geographically large country, which cannot be managed through town meetings, the legislature was a necessity.

The Framers believed that self-rule becomes increasingly difficult as the constituency becomes larger and more complex. 117 Wilson envisioned, more fully than any of his counterparts, the United States as a national and united public. 118 His vision of a national polity, 119  [418] combined with his passionate belief in the capacities of the people in a representative democracy and his recognition of the need for efficient government, naturally drew him to advocate what would become the Constitution’s scheme. 120

Consistent with the views of religious leaders of the time, the Framers believed that “self-rule” is in fact anarchy. Individuals in a system of self-rule, acting without restraints, were thought to be less likely to serve the common good, a fear expressed in not a few of the sermons. 121 Because of this understanding, representatives were placed in a constitutional structure intended to deter their abuses of power and to channel their decision-making toward the common good through checks and balances and the dispersion of power.

The practical argument for representative government is even more compelling today when the multiplicity of technically complex issues facing government makes it impossible for any one constituent and, perhaps, any one legislator to fully comprehend them all. Reality, time constraints, complexity, and multiplicity all counsel in favor of a delegation of decision-making power through a representative form of government.

[419]  The Framers readily conceded the practical impossibility and undesirability of self-rule. In like fashion, they also rejected monarchy. They embraced instead a third option, representation.

2. The Nature and Scope of the Delegation of Power

The Constitution makes one facet of representation clear: the constituent delegates not merely the right to vote on an issue according to the majority’s preferences but rather the power to determine the particulars of public decisions. This delegation entails a transfer to the legislator of the power and responsibility to make the “hard choices.” 122 The nature and scope of the delegation of decision-making power from constituent to representative differs greatly from the self-rule concept’s tendency to reduce representation to little more than vote aggregation. The Constitution’s representation scheme legitimizes the representative’s exercise of personal and moral judgment.

The people have “intrusted” their representatives with the power and obligation to make binding law. 123 While the self-rule paradigm would turn representatives into little more than placeholders for the majority’s preference on any particular issue, the Constitution is centered around the necessity of a delegation of decision-making, which is to say the legislature, as constructed, did not create a majoritarian “difficulty,” but rather freed government to pursue the common good, regardless of majority preferences.

[420]  The representative contemplated by the Constitution is yoked with heavy responsibilities. The legislature is elected to make independent and well-informed judgments in the best interests of the people regardless of whether the people would make those particular judgments themselves. 124 As James Wilson explained his own role at the Convention as follows:

Mr. Wilson … asked himself the serious question what he should say to his constituents in case they should call upon him to tell them why he sacrificed his own Judgment in a case where they authorized him to exercise it? Were he to own to them that he sacrificed it in order to flatter their prejudices, he should dread the retort: did you suppose the people of Pennsylvania had not good sense enough to receive a good Government? 125

The delegation of power is not unlimited, it is a delegation of decision-making power and responsibility. The power and right to make law is “delegated [by the people] for a certain period, on certain conditions, under certain limitations, and to a certain number of persons.” 126

Legislators were held to a high standard of performance whereby they were expected to exercise judgment, which included taking into account the struggle of interests occurring around them and the expressed needs and desires of their constituents. 127

Representatives were not to be utterly detached from the people, in contemplation of an ideal good. Rather, a representative acting according to the Framers’ prescriptions must weigh the desires and needs of her present and future constituents in constructing what  [421]  she viewsas the best solution. In attempting to achieve a best-world solution the representative properly may depart from particular constituents’ views.

For example, the southern mayor who enforced the dictates of the Brown v. Board of Education decision falls into this category, as does the federal legislator representing the Bible Belt who refuses to vote in favor of legislation that would declare the United States a Christian country. Some would argue or assume that representatives are majority-driven, because they seek re-election, but this is an oversimplification. For each vote cast the representative must think, as James Wilson did, whether his constituents will think he did the right thing, not, whether he followed their will in the face of better ideas at hand. Elections test results, not simple allegiance, except for one-issue voters. 128

This is precisely the point where the Court in Smith departed from the constitutional design. When the Court presumed and accepted that minority religions would be disabled in the legislative process constructed, it rested on a false assumption. The legislative process is constructed so that representatives consider a larger horizon than the simple majoritarianism the Court presumed, and instead creates the very possibility for minorities to get their voice heard and their needs served.

Although the people have no continuing right to instruct after the election, 129 they do have the power publicly to disapprove, ridicule, and refuse to reelect their representatives. 130 Thus, the typical  [422]  legislator, far from being an isolated, sovereign ruler, 131 is driven to engage in an ongoing dialogue with the people. Moreover, the legislator hears not only the judgment of her present-day constituents, but also the judgment of history imaginatively played out during the course of her representation. The legislator, thus, is accountable both to her geographically designated constituents, as well as to the res publica. 132 This reality belies the simplemindedness of a representation scheme that involves only the aggregation of existing individual preferences and explains the necessary resort by the representative to best world rather than direct representation. 133

What distinguishes the legislator from a conduit of preferences is judgment, which includes the capacity to make choices between seemingly equally valued prospects and the capacity to include in the ultimate calculation the prioritization of particular issues. 134 Instead, legislators mediate between two poles of a dialectic, one pole being careful consideration of the judgments of citizens and the other being the exercise of independent judgment in the interest of the polity.

3. The Requirement of Communication

The necessity and the reality of the delegation of political authority to representatives immediately raises the issue of accountability. The Framers gathered at a time when American culture was consumed with the idea of avoiding the tyrannies of the  [423]  past. 135 “Most commonly the discussion of power centered on its essential characteristic of aggressiveness: its endlessly propulsive tendency to expand itself beyond legitimate boundaries.” 136 By the time the Constitution was being framed, the robust optimism of the post-Revolutionary era had given way to a more frank distrust of the people and governing institutions. In that milieu, it was inevitable that the increase in the power of representatives would be coupled with a strong belief in the need for plain communication between them and their constituents.

The Constitution constructs a marketplace of expression that institutes two-way communication between the people and their representatives through a number of mechanisms.

First, the Framers included a Speech and Debate Clause that would prevent legislators from being incarcerated or prosecuted for their statements during legislative session. 137 Blasphemy, heresy, and sedition laws had been used against members of Parliament in England. This clause was intended to free members of Congress to speak their minds during debate and had the effect of making it more likely that their views would be known by the public.

Second, the Houses of Congress must keep a record of their proceedings and publish them:

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal. 138

They must record the votes of each member even when only a small number ask for such a recording. This is forced communication that is intended to prevent the Congress from turning into a collection of secret cabals making secret laws  [424]  according to whim. 139 Plainly, Congress is not supposed to operate as a secret cabal hiding its intentions from the people. These measures, though not absolute in their requirements, guarantee at least some information to the public.

The Congressional Record is the answer to the Journal Clause, and carries all statements made on the floor of either House. The Record certainly does not give citizens an unvarnished view of the legislative debate, with its prepared speeches, but it does provide some evidence of legislators’ views. The House has done the Clause one better by routinely reporting votes unless the rules are suspended. 140 In addition, both Houses require committee reports to be made public. The Senate Rules provide that reports made by a committee of conference to the Senate shall be printed as a report of the Senate. 141 In the House, with exceptions, committee reports are to be filed with the Clerk and then printed in the Congressional Record.

The Appropriations Publication Clause also requires Congress to publish a statement and account of the receipts and expenditures of all public money. 142 Congress is required thereby to disclose a report of all money received by the federal government and an account of all expenditures. 143These Clauses have not succeeded in making Congressional processes fully transparent, of course. The two Houses have evolved various means by which they may make their  [425]  most important determinations in secret as public disclosure has hit a low with too many enactments passed through “voice vote” or “unanimous consent,” neither of which requires members to be present, let alone have their votes recorded. 144

The Religious Test Oath Clause also enhances information flowing from Congress to the people.145 Members of Congress may not be required to take a religious test oath, which contributes to their sense that they may speak their minds regardless of their religious status. These three Clauses-Journal, Speech and Debate, and Test Oath-operate jointly to encourage representatives themselves (and not just the press) to report on their deliberations and decisions.

Third, and this is normally overlooked by constitutional scholars, the Constitution’s Copyright Clause lays the foundation for a free market in privately generated expression that may challenge the government. It creates a system whereby “authors” may have “exclusive rights” in their writings for “limited times” and thereby collect the monetary (or other) rewards the market is willing to bestow. 146 Because of the Copyright Clause, individuals can express themselves through reporting, the arts, and even religious tracts without being beholden to the government. They are granted the potential economic independence necessary to be able to create works that either directly or indirectly challenge the government’s potential for hegemony over meaning. 147Some surely will create and profit from works that are pleasing to the government, but even those individuals who curry the government’s favor will not have the worth of their contribution determined solely by the government itself. Value, rather, is determined by the consumers in the marketplace, the people. Most important, they can choose to change their tune and criticize the government, and yet they may still find  [426]  financial support through the market. The Copyright Clause thus makes a substantial contribution to the possibility of communicating plainly with the government.

Fourth, the Framers crafted a limited set of powers for the Congress, which included no enumerated power regarding speech or the press. 148 Control of the marketplace of ideas thus would not be a primary power or object of the Congress.

The Federalists, who masterminded the structure of the Constitution, including James Wilson, James Madison, and Alexander Hamilton, believed that an enumerated bill of rights was unnecessary because Congress was not given the power to make laws regarding speech, religion, or the press. 149 The Anti-Federalists, who hoped to protect the people and states from a strong and potentially tyrannical national government, however, demanded a bill of rights. 150 A  [427] compromise was struck: the Constitution’s backers agreed to accept amendments-a list of rights-if the naysayers would ratify the Constitution as it stood. Thus, the Constitution was ratified with an implicit contract to add a bill of rights.

James Madison drafted the explicit bill of rights, the first ten amendments, which were ratified on December 15, 1791. The First Amendment stated that Congress could not “abridge the freedom of speech, or of the press.” 151 When added to Article I’s reporting requirements and the Copyright Clause, the First Amendment constructs a two-way conversation process between the people and their leaders.

Fifth, the First Amendment reinforces the principles of communication laid down in the body of the Constitution. In this day, some assume that somehow the First Amendment single-handedly constructs the marketplace of expression that will keep government in check. The First Amendment, however, is parasitic on the pre-existing clauses mentioned above, the Speech and Debate Clause, the reporting requirement, the Copyright Clause, and the decision not to include speech or the press under the enumerated powers of Congress. The First Amendment is a gate that forbids the government from undue interference with the marketplace already instituted through these other means and would be superfluous were these factors ineffective.

Sixth, the entire Constitution rests on a moral, philosophical, and theological premise that all centers of power ought to check abuses of power by the others. Each office is delineated and distinguishable from the others. It is not enough simply for the three federal branches to check each other or for the states to check the federal government and vice versa. The people are also intended to check the abuses of power by their representatives. They have the voting booth where they may oust those representatives who displease them, but they also have an obligation to inform their representatives during the term of representation of their views. Similarly, representatives have a moral obligation-if the system is to work-to inform the people during the term of their intentions and actions. Neither side can claim the moral high ground in the event of failed  [428]  communication on their part. This imperative permeates the various individual mechanisms instituted and the society in general.

An obligation of two-way communication between representatives and constituents is crucial to understanding the Constitution’s prescription for representation. Without it, representative democracy starts to look suspiciously like an aristocracy, or oligarchy. The Constitution constructs a representative system of palpable accountability. 152 In Wilson’s words, “an unreserved communication of sentiments, as well as a union of interest, should always subsist between those who direct and those who delegate to them the direction of public affairs.” 153 Wilson believed in the necessity of freedom against government censorship as well as the right of the people to know the activities of the legislature as concomitants to the representative fulfilling his communication obligation.

In addition to communication, the Constitution limits representatives through the voting booth. The Framers rejected perpetual terms of office. 154 Under the U.S. Constitution, the people are not only capable of affecting political outcomes through mandatory communication by Congress and mandatorily permissible communication from the people, but they also hold the power to decide whether to re-elect a member of Congress. During the term  [429]  of representation, therefore, the people wield two weapons over their representatives, both of which are intended to ensure that representatives do not spin off into an elitist aristocracy utterly divorced from the people’s views and needs.

With their deep distrust of the people, the Framers struggled over whether elections of representatives should be direct or indirect. James Wilson argued most forcefully in favor of direct election of both houses of Congress, seeing that this was a valuable tool in checking the abuses of legislative power where the people no longer held a right to instruct their legislators. The fear of mobocracy at the Convention, though, led the Framers to divide the baby. Members of the House of Representatives were to be directly elected by the people, but the Senate-and the President-were to be indirectly elected. As the system matured, it became apparent that the people required the tool of direct election to make Senators more accountable, though not the right to instruct. In 1913, the Seventeenth Amendment was enacted, which provides for the direct election of Senators.

A two-way communication process, 155 along with the power to vote and to refuse to reelect,156 forges a necessary link between the people  [430]  and their representatives. This link is forged by mutual challenge and distrust, however, not by blind trust.

4. The Many Facets of Representation

The resort to self-rule in so much of the literature and public discourse, including the Smith decision, falls in the face of the complicated nature of the representative relationship. The relationship is not a simple pairing of governor and governed, ruler and people. The constitutional relationship is complex and so is the job assigned to the representatives. The prevailing theories falsify reality by oversimplifying representation. 157 The representative stands in a vortex of dialectical relationships to a wide variety of phenomena. It is only by acknowledging the complexity of the judgment required that one fully can come to understand the enormous responsibility the Constitution places on the shoulders of representatives. The failure to address any one can doom the decision made, though the possibility of employing all parameters with respect to every law is virtually impossible. The taxonomy of judgment includes the following features, some of which go to the quality of the legislator, some of which go to the criteria by which the legislator must reach decisions, while others contextualize the decision.


a. The qualities of the legislator.

Though the Framers did not institute an aptitude test for federal representatives, they acknowledged that the constitutional scheme would only succeed to the extent that at least some virtuous rulers took the helm. Virtue in those representing the people is in fact the fulcrum on which the constitutional system rests. If no virtuous leaders can be found, the scheme cannot succeed. But that does not mean all representatives must be great leaders. Certain that not all representatives would be virtuous, the Framers hoped that enough would be inclined to serve the common good and that the system could check the overreaching of those bad men not so inclined.

After the Constitution was enacted, Witherspoon assessed whether sufficiently virtuous men were in the Congress:

The persons chosen to fill the houses of Congress, have been generally approved. Perhaps some states, in a few instances, might have made a better choice; but upon the whole, there is little reason to complain. I remember to have heard a gentleman well acquainted with the subject, say of the former Congress which conducted the war, that he had never known a time in which it did not contain a great plurality of men of integrity, and of those a very respectable number of distinguished abilities. I hope and believe that this is the case at present; and may it always continue to be so. 158

There is no ideal representative, because there are no perfect humans. Ever pragmatic, the Framers were acutely aware that representatives would not be gods but humans. Thus, the legislature operates best that contains a mix of qualities wherein individual representatives can counterbalance each other’s strengths and weaknesses (the play of characteristics found at the Convention itself). But there are qualities that are innately valuable to the formation of good judgment, such as education, maturity, common sense, intelligence, empathy, and integrity. The good legislator might also have certain traits of character, courage, vision, and fealty to the rule of law. Each legislator brings with him a peculiar mix of these qualities.

b. Whom does he represent?

The federal representative represents many constituencies, including his electorate (the state or district from which he was  [432]  elected); the national constituency of the people taken as a whole; the factions or interests that knock on his door; the moral or religious zeitgeist; and even the international community. Despite his obligation to take all or some of these factors into account, depending on the issue, none of the entities being represented has the constitutional right or power to direct the representative’s judgment. Though rarely alone in his decision-making, he is independent.

His judgment thus is a synthesis brought to bear on a mix of entities being represented. The multiplicity of legislators, combined with the particular qualities of those individuals exercising judgment, leads inevitably to compromised conclusions.

c. What are the building blocks of his judgment?

Just as the representative does not act merely as a conduit for the people’s preferences, he does not rest solely on guesses or predictions regarding their preferences. Polls are often employed to “direct” the legislator to a certain decision, but exclusive resort to polls falsifies and undermines the Constitution’s fuller role for the representative. The legislator can receive and take into account information from many sources: the press, the research services of the Congress such as the Congressional Research Service or the General Accounting office, interest groups, history (either read as a mandate or as a set of teaching examples), and projections into the future that reflect back on the present decision. Even more than information, though, moral and religious principles inevitably guide, if not drive, particular legislators on particular issues.

d. What are the limits on his judgment?

Each legislator is limited by his own shortcomings, a reality the Framers assumed into the constitutional structure. The whole, though, may be greater than the sum of its parts, and the virtues of some compensate for the weaknesses of others. Of course, as Madison feared, this formula only works where the more virtuous outnumber and out-judge their weaker cohorts on important issues. When the uneducated and self-serving reach critical mass, the whole may be no better than accumulated evil of the weaker members.

Legislators are also limited by the necessity of compromise in a body of so many. It is literally impossible for each and every representative to achieve his own independently determined [433]  legislative goals. The multiplicity of the participants, combined with the fact that they can only act as a whole, forces representatives to prioritize and to vote at times against their best judgment on a particular issue to preserve the right outcome on a more important issue.

The Constitution also poses meaningful barriers on the ability of legislators to follow their independently reached conclusions. The enumerated and limited powers of Article I, the checks and balances from the President and the courts, the countervailing power of the states’ dual sovereignty, and the Bill of Rights place obstacles in the path of decisions that would otherwise satisfy the legislator’s designs.

The matrix of representative judgment at the federal level, therefore, is exceedingly complex; indeed, so complex that evaluation of the wisdom of any one legislative enactment is often quite difficult and may be impossible, especially in the short run. Those affected certainly can criticize representatives for not serving their particular concerns, but that is no final judgment on whether the “right” result-the good of the whole-was reached. Thus, the legislator’s internal tally of whether a particular decision was right or wrong in retrospect is exceedingly difficult to keep during the term of service. It may be years and even decades before the representative, the historian, or the people can assess whether that act was the right act, at the right time, for the right reasons, and for the right people.

But this assumes that the representative is struggling to reach the right answers for the common good. When members of Congress shirk their responsibilities by deferring solely to interest groups, by solely following opinion polls, or by handing the hard choices to the executive branch, the constitutional judgment is swift: failure. The structure of the Constitution requires more of members of Congress than of any other governmental office. In James Wilson’s words, the legislators have the “hardest and least profitable task of any who engage in the service of the state.” 159

There is little wonder that Madison left the Convention with a profound depression and a conviction that the system simply could not work. For one who had approached the framing of the Constitution as Calvin had approached the Church, filled with a zeal for concocting a structure that would deter abuses of power, it was  [434]  nearly intolerable that the selection of the men who would bear this awesome burden was beyond the Framers’ actual control.

The legislative structure was crafted by the Framers to avoid the problems of majoritarianism, or mob rule. Representatives are free of their constituents’ instruction as they are simultaneously driven to consider the public good in a fishbowl of public scrutiny within which they operate and seek re-election. This structure is far superior in creating the possibility of consideration of the public good over direct democracy, which operates solely on a majoritarian basis. Currently, raw majoritarianism is most apparent in public initiatives, which permit a bare majority of the people to determine issues of public concern, without the mediating influence of the representative. 160

The foregoing discussion describes the legitimate legislature, which ought to be obeyed even by religious believers, under the reasoning of religious leaders at the time of the framing.

IV. The Rule of Law, the Legislature, and
Permissive Accommodation

The rivers of ink spilled in criticism of the decision in Employment Division v. Smith 161 are the stuff of which legends are made. The law review articles, 162 the hearings in Congress, 163 and the numerous editorials in newspapers and magazines contributed to a Nile of print. The standard story was apocalyptic, with the Supreme Court-actually, Justice Scalia himself-betraying the Free Exercise Clause  [435]  and ruining religious liberty. In the words of one of my First Amendment students, which reflect the view of so many upon first reading the opinion, it was “just idiotic.”

The focus of ire was on the reasoning that rejected the McConnell thesis on mandatory judicial exemptions under the Free Exercise Clause and declared that generally applicable laws (i.e., those that pass through duly elected legislatures with a neutral purpose) that incidentally burden religious conduct are constitutional.

Smith is to the Free Exercise Clause what Lemon v. Kurtzman is to the Establishment Clause. 164Both surveyed the entirety of previous jurisprudence to derive the principles that should govern the Clause. Essentially, in Smith, the Court looked back over its jurisprudence and saw what was there to be seen: religious claimants had not done terribly well fighting the rule of law except during the years 1963-90 in a particular arena, unemployment compensation, 165 and in an individual case involving compulsory education law. 166 Even though the Court accurately captured the general trend of the cases, it immediately was attacked as knowing nothing and being anti-liberty, in the press, in the law reviews, and in Congress. 167 Religious organizations, which were informed by leading academics that the Court had just pulled a fast one, united to fight the Court’s alleged unjust treatment.

To be sure, the Court did itself no favors by engaging the issue of what standard to apply under the Free Exercise Clause in a case in which the parties never addressed the issue, either in their briefs or during oral argument. If a charge was ever to be made against the Court for acting unilaterally, those are the conditions that foment such a charge. In this case, it was a criticism more procedural than substantive. Truth be told, the Court did not need briefing to lay out its own cases, and the standard under the Free Exercise Clause was certainly well within the purview of the necessary doctrine to determine the outcome of the case. Yet, had the Court heard re-argument on the issue, the hue and cry would have been muted,  [436]  because everyone would have known the issue was up for consideration. Oral argument would have permitted the Justices to lay the groundwork for reconsideration.

The standard story on Smith has been tightly focused on the Free Exercise Clause, which has been read as a fundamental right of individual and organized religious believers to trump the rule of law. 168 But the Court did not reject simply the mandatory accommodation thesis. That it decidedly did, but it also pointed to another path: legislative permissive accommodation. 169

It reaffirmed the view of the relationship between legislative government and religious interests first painted by religious leaders of the latter half of the eighteenth century. The first element of the opinion is quite true to the views of religious leaders in the eighteenth century: there was no absolute or general right for believers to trump duly enacted law. 170 To the contrary, they had an obligation to obey as part of serving the common good. 171 Further, legislatures, when acting legitimately, were responsible for serving the general peace, safety, and welfare of society, the common good, as well. 172

The question left open is whether legislatures could consider exempting religious believers from a particular law burdening their practices under this horizon. The reasoning follows from the co-presence of the rule of law and the role of the legitimate legislature. There is no reason within that universe to reject the concept of legislative accommodation. In fact, it seems to have been an accepted practice at the time. As Professor Hamburger has pointed out: though some “did seek exemption from civil laws, they typically asked, not for a general right of exemption, but merely for exemptions from a small number of specified civil obligations.” 173 Even then, only a few were provided in state constitutions.

[437]  Legislators were always under an obligation to consider the public good with every decision, and that horizon logically can extend to considerations for exemption. But the legislature never gets out from under the obligation of considering the common good. Thus, any consideration for exemption that focuses solely on the religious claimant without reference to the common good fails to fulfill the constitutional scheme. Where the exemption can be explained by the legislature as consistent with the public good, then the legislature has acted not solely in response to lobbying by religious entities, but rather with the larger good in mind.

It is impossible to invalidate a law where the legislature does not consider the public good solely on that ground, but it is possible to critique the process and to discern the actual purpose of the law by examining the way in which the legislature considered the public good (or not). Where the legislature’s focus is solely upon providing a benefit to a particular religious group, and not on the general good, the argument that it is an unconstitutional, bare benefit for religion in violation of the Establishment Clause is quite strong. But where the focus was on the public good and the exemption was found to be a rational means of lightening a government-caused burden on religious conduct (with the exemption well tailored to the burden and therefore not overbroad), then the argument for bare benefit is likely to fail.

The best example of this lies in the exemptions for faith-healing groups from medical neglect laws. It is illegal in most states medically to neglect either a child or a disabled adult, but religious organizations have achieved exemptions in many states. 174 A crucial question to be asked with respect to such exemptions is whether the legislature ever considered the public good or simply acquiesced to a request from a persistent lobbying effort. The same can be asked  [438]  about child abuse reporting requirements that exempt religious entities from reporting child abuse.

There is an important caveat. No law issued through such a process is automatically immune from constitutional attack. To the extent that any such law offends constitutional boundaries, then the law is unconstitutional and obviously not intended to be obeyed. Conversely, in the absence of constitutional defect, the law is binding in the system of the rule of law.

For example, a law passed by a legislature that plainly considers the public interest still could fail by transgressing the separation of powers or by violating the procedures for amendment set forth in Article V, or by violating the inherent limitations of federalism.

When a religious individual or entity demands exemption-essentially a right to break the law that otherwise applies to others-it is required to account for how its actions affect the common good.

While this particular issue was not addressed directly in the various sermons, it follows from their discussions that where the welfare of society could be served by creating an exception to a general law for a religious believer, the legislature had still fulfilled its fullest function. Which is to say that the sermons and the Smith Court’s reach for permissive legislative accommodation have in common a resort to a theory of civil government that it is to be devoted to the greater good of the whole and that the life of the citizen-religious believer carries with it a responsibility likewise to be dedicated to the good of the whole and to be bound by laws duly enacted under that horizon.

Having been bound by such laws, there is no constitutional prohibition on believers requesting an exemption to ease a burden on religious belief, so long as the resulting law reasonably can be said to serve the common good.

The history following Smith further illuminates how this union of the rule of law and legislative accommodation might work consistently. After the outcry over Smith, various forces went forward in the state and federal legislative processes and achieved exemptions for the religious use of peyote from additional states and the federal government. 175 In fact, the Smith Court had rather unsubtly pointed  [439]  the way to such accommodation, by citing state laws that already exempted peyote from narcotics laws for religious use. 176 So even though the standard story was and continues to be that the Court had closed the door on religious liberty, the subject matter in Smith itself was treated to widespread legislative exemption and therefore an increase in religious liberty, consistent with legislative responsibility. The reason why? Because such exemptions were found to be consistent with the larger public good. Peyote is not the sort of recreational drug, like heroin, that poses a serious risk of addiction and death, and it generally is used only in religious ceremonies because the experience it provides is not terribly pleasant. 177Under the horizon of the common good, the peyote exemptions made a great deal of sense.

In current lawmaking practice, there are instances where the public good is not effectively included within the process. Were an exemption to be enacted outside the usual legislative process and instead through a public initiative, which permits laws to be enacted based on a bare majority of the voters, that exemption would illustrate the bare majoritarianism that is rightly decried by Smith’s  [440]  detractors. Such initiatives fall short of the constitutional scheme for representation. 178

The peyote example also brings to light the error in the majoritarian thesis advanced against Smith and unnecessarily conceded by the Court in Smith. 179 The Native American Church is a small minority church with few members and little political clout. Were representatives simply subject to majoritarian control, the requests for peyote exemption before Smith and after would have fallen on deaf ears. Yet, there were such exemptions both before and after, because legislators are placed in a position of power that permits them to consider claims by minority groups with concern and seriousness. Representatives are free from the instruction of their constituents and, as discussed above, must make decisions in light of how those decisions actually will play out against the backdrop of the common good. 180

Political scientist Mancur Olson’s work in political science is critical here. His work shows that small, cohesive groups with a coherent message do better in the legislative fight than do unorganized, majority groups. 181 The key is in the directed organization of the delivery of a message and in the coherence of the message itself. These conditions are not insuperable obstacles to a quest by any religious organization for an exemption.

While Smith did not find the Court creating an exemption for the particular claimants in that case, it opened the door to greater dialogue between religious and legislative entities, not only about laws that pose burdens on religious entities, but also about the common good. No longer could legislatures pass such determinations off to the courts, which are institutionally incompetent to consider the nexus between any particular exemption and the common good. Instead of the courts haphazardly skewing the common good through individual determinations under the Free Exercise Clause, the legislatures, which are intentionally  [441]  constructed to consider the larger public good, became the proper forum.

The result is worth close analysis by sociologists and political scientists as well as law professors. The permissive accommodation formulation makes it impossible for legislatures to send claimants to the courts for individual case-by-case exemptions. At the same time, it forces religious entities to present their requests for exemption in terms of the public good. Far from being a path to majoritarianism, permissive accommodation brings back the uniting horizon of the common good. While not dictated by the views of the framing generation, the dynamic is consistent with its vision and with common sense.

Of course, permissive accommodation is not all good news for those religious believers who would seek an exemption. The legislative process, including executive signing into law, which considers such requests against the backdrop of the common good, will doom some requests. For example, Sikh schoolchildren in California sought to carry knives-or kirpan-in school as part of their religious heritage, which requires a weapon to defend their honor. The issue was considered publicly by the California legislature over several years, which did enact such an exemption, but Governor Pete Wilson vetoed it on the ground that he was “unwilling to authorize the carrying of knives on school grounds and abandon public safety to the resourcefulness of a thousand districts.” 182

Perhaps the most obvious and sensible permissive accommodation was the exemption for the use of sacramental wine during Prohibition. 183 The harms generated by alcohol could not be substantiated in the miniscule amount of wine drunk during communion, and therefore the exemption was consistent with the public policy goals of the general law and of Prohibition (however misguided Prohibition itself was in retrospect), and independently consistent with the general good.

As the Prohibition example illustrates, as the laws change over time, the need for exemption may change. In addition, as society  [442]  alters its view on the value of any particular set of individuals within the society, exemptions will appear to be inconsistent or consistent with the public good. For example, many state legislatures have granted exemptions for children’s medical neglect and abuse to faith healers. 184 As the rights of children have increased incrementally over time, however, children’s advocates have become increasingly vocal and have lobbied state legislatures to repeal the neglect and abuse exemptions. The same story is occurring with respect to reporting requirements of child abuse; there was a time when churches were regularly exempted from such reporting. 185 This era of clergy child abuse scandals has brought into sharp relief this special treatment for religious entities. Massachusetts, the site of the most scandalous of the recent revelations of seriatim child abuse, recently added clergy to the list of professionals required to report child abuse. 186

This is not the article to lay out the parameters for the consideration and adoption of constitutional permissive legislative accommodation. That I leave to further endeavors. Rather, this final Section was intended to illustrate through contemporary examples how the shared common good that motivates the worldview of eighteenth-century religious leaders and the Constitution’s legislative process can be understood to be at work today-both in the Court’s doctrine and in existing legislative accommodations.

Without doubt, having sketched this much, a huge question looms, and that is: how do we determine the common good? It is a perfectly fair and a perfectly difficult question, but one, like the question of how to draft a constitutional legislative accommodation, that I will leave to a later day. This Article aims only for the more modest goal of uncovering the inherent connection between two seemingly disconnected elements in the Constitution-free exercise and the legislative process.



What makes the United States’ constitutional engine run is in no small part the American people’s embrace of the rule of law. This embrace was fostered by religious leaders in the eighteenth century, who took it upon themselves to explain how the believer is to live in two kingdoms simultaneously. Believers were, at the same time, to believe and worship God under the church’s domain over belief, conscience, and worship and to obey the civil government when it regulated injurious conduct. Government, church, and believers were intended to share the horizon of a common good.

As arguments for the free exercise of religion have moved to a theory of isolationism rather than participation in the public good, this essential feature of the constitutional experiment has been threatened. The Supreme Court in Employment Div. v. Smith, however, reinstituted the accountability of religious believers, a move that is in harmony with the views of religious leaders at the time of the framing of the Constitution and that is likely to be essential to preserving this national community as the plurality of religions ever increases. 187

Copyright (c) 2002 Journal of Law & Politics, Inc.
Journal of Law & Politics


Protection Act of 1999” Marci A. Hamilton Professor of Law
Benjamin N. Cardozo School of Law, Yeshiva University

May 12, 1999

Thank you, Mr. Chairman, for inviting me to speak today on this
important topic. I am a Professor of Law at Benjamin N. Cardozo
School of Law, Yeshiva University, where I specialize in
constitutional law, especially church-state issues. I also served
as lead counsel for the City of Boerne, Texas in the case that
ultimately invalidated the Religious Freedom Restoration Act
(RFRA). See Boerne v. Flores, 117 S. Ct. 2157 (1997). I have
devoted the last six years to writing, testifying, lecturing, and
litigating on the Religious Freedom Restoration Act and similar
religious liberty legislation in the states. For the record, I am
a religious believer.


The question this bill addresses is the following: When is a
government restrained from enforcing neutral, generally
applicable laws that have been violated by religious individuals
and institutions? This bill is an unvarnished request from
religious lobbyists to permit religious individuals and
1999 HR 1691 1RG
institutions to break a wide variety of laws. H.R.1691 forces
governments to permit religious individuals and institutions to
break the law unless the government can prove that it has a
compelling interest and employed the least restrictive means to
reach that interest, the highest level of scrutiny known in
constitutional law.

Because the bill originates from religious entities, its focus is
on providing as much protection for religious conduct that
violates the law as is humanly imaginable. The more appropriate
focus for this body, as a legislature representing the entirety
of the polity, is to ask which laws religious individuals and
institutions may violate.

Letter to House Subcommittee on the Constitution

Here are some choices for Congress. These are a few of the laws
with which religious entities and institutions have come into

1. Child abuse, endangerment, and neglect laws, including laws
that require medical treatment to prevent death or permanent

2. Civil rights laws, including fair housing laws.(1)

3. Domestic violence laws.

4. Prison regulations.

5. Land use laws:

a. On- and off-street parking, especially in residential

b. Lot and building size regulations, especially in circumstances
where the religious institution wishes to build a “megachurch” or
construct several buildings in one location, including movie
theaters, coffee houses, fitness centers, gymnasiums, schools,
and child or senior day care centers.

c. Health and safety code regulations, including fire prevention
and occupant capacity in residential and child care facilities.

d. Zoning regulations.

e. Historical and cultural preservation.

6. Public school order and safety regulations, including weapons

7. Fiduciary duty laws applicable in cases of clergy misconduct
(typically for abuse of children or impaired adults).

8. Child custody and support laws.

9. Anti-polygamy laws.

1999 HR 1691 1RG
In sum, HR 1691 asks Congress to make simultaneous policy
judgments regarding a vast array of crucial federal and state
legal schemes.

RLPA is a blank check for religion. It took the ACLU
approximately five years to fathom that RFRA (and now RLPA) is a
threat to the civil rights laws. What other hidden agendas lie in
this across-the-board preference for religion? For example, there
are religions that hope to run day care centers without having to
satisfy the onerous health and safety regulations under which
secular day care centers operate. RLPA will make that easier.
Others hope to operate soup kitchens or hold worship services in
residential neighborhoods without having to abide by certain
zoning and land use regulations.

The Constitution counsels against handing power blindly to any
social entity, even religion. See generally Marci A. Hamilton,
The Constitution’s Pragmatic Balance of Power Between Church and
State, 2 Nexus: A J. of Opinion 33, 34-36 (1997). Instead of
RLPA, Congress would do far better to focus on individual arenas
within which actual and substantial burdens on religious conduct
exist and where accommodation is likely to be consistent with the
public good. By concentrating on those specific instances,
Congress could investigate whether such exemptions are consistent
with the public good and therefore fulfill its constitutional
duty to serve the entire polity.


The Religious Liberty Protection Act of 1999 is ultra wires. It
ostensibly rests on three powers of Congress: the Commerce Clause
Power, the Spending Power, and Section 5 of the Fourteenth
Amendment. Instead, it attempts to stretch each of these powers
beyond their proper boundaries.

1. RLPA Is Not a Valid Exercise of Congress’s Commerce Power. The
test to be applied in Commerce Clause cases is two-fold. First,
the courts must ask whether the law regulates activities that
“substantially affect” interstate commerce. United States v.
Lopez, 514 U.S. 549, 558-59 (1995). Second, the courts must
consider the inherent limits of federalism on the exercise of the
Commerce Clause. The Constitution “withhold[s] from Congress a
plenary police power that would authorize enactment of every type
of legislation.” 514 U.S. at 566.

Prong One: Substantially Affects Commerce. RLPA would subject
state and local government actions to strict scrutiny whenever a
“substantial burden on the person’s religious exercise affects”
commerce. See Sec. 2(a)(2). There are two problems with RLPA’s
formulation. In Lopez, the Court explicitly rejected the simple
“affects” test and embraced the requirement that the subject of
the law must “substantially affect” interstate commerce. 514 U.
S. at 559. RLPA is not limited to activities that substantially
affect interstate commerce and therefore exceeds Congress’s power
under the Commerce Clause.

Second, the connection between religious practices and interstate
commerce is tenuous at best. It should go without saying that the
vast majority of religious conduct has nothing to do with
commerce. Hair length, the decision to wear a particular
religious symbol, the wearing of yarmulkes, the laying on of
hands, or the construction of a sweat lodge are actions that do
not have substantial impact on interstate commerce.

Prong Two: Federalism. Congress may not employ its Commerce
Clause power in a way that would “convert congressional authority
under the Commerce Clause to a general police power of the sort
retained by the States.” 514 U.S. at 567. This bill would seem to
intervene in every situation where a local or state government
attempts to enforce its generally applicable, neutral laws that
incidentally substantially burden religious conduct. This is a
new federalization of local autonomy.

This bill is not about regulating commerce, but rather is a
handout for religion. It is a bald-faced attempt to transform a
subject matter of the First Amendment (the free exercise of
religion), which is a limitation on the Congress, into an
enumerated power.

2. RLPA Is Not a Valid Exercise of Congress’s Spending Power.
RLPA applies to every arena that receives any federal financial
assistance. The only way for state and local governments to avoid
RLPA’s burdens is for them to forego all federal financial

Under South Dakota v. Dole, 483 U.S. 203 (1987), a federal law is
a valid exercise of Congress’s power under the Spending Clause if
there is a nexus between the spending and the condition attached
to the spending. See 483 U.S. at 207 (“[C]onditions on federal
grants might be illegitimate if they are unrelated to ‘the
federal interest in particular national projects or programs.”).
The condition attached to spending under RLPA is that the
government or governmental entity receiving federal financial
assistance will subject itself to suits (including the cost of
attorneys’ fees, see Sec. 4(b)) whenever its generally
applicable, neutral laws substantially burden any religious
claimant’s conduct within the context of any state or local
program that receives any federal funds.

The only way to avoid such liability under RLPA is to refuse the
federal financial assistance. On the current state of the record,
Congress has not begun to ask what the nexus is between its
national interest in any spending and burdens on religious
conduct. Neither House of Congress has even attempted to survey
the vast sweep of spending programs implicated by this bill.
Where the constitutional basis for congressional action is not
“visible to the naked eye” and Congress provides no
“particularized findings” to support the law, the courts
invalidate the law rather than provide the factual predicate that
they are ill-equipped to provide. See, e.g., Lopez, 514 U.S. at

Second, the “financial inducement offered by Congress might be so
coercive as to pass the point at which ‘pressure turns into
compulsion”’ and therefore exceed Congress’s power under the
Spending Clause. 483 U.S. at 211. RLPA is as coercive as it gets.
It is mandatory for all those government entities take any
federal financial assistance. The states and local governments
must choose between taking the funds with the liability or taking
no funds. RLPA is unlike the highway bill upheld in South Dakota
v. Dole, which penalized states who did not set the state’s
drinking age to a minimum of 21 only by taking a small percentage
of the federal highway funds provided.

3. RLPA Is Not a Valid Exercise of Congress’s Power to Enforce
Constitutional Rights Under Section 5 of the Fourteenth
Amendment. Section 3(b) of RLPA federalizes local land use in
every scenario where the land use authorities engage in
“individualized assessments”(2) and where religious claimants
claim burdens on their religion.

Under Boerne v. Flores, the Congress may only enforce
constitutional rights pursuant to Sec. 4 of the Fourteenth
Amendment if there is congruence between the means chosen and the
end of preventing constitutional violations. “While preventive
rules are sometimes appropriate remedial measures, there must be
a congruence between the means chosen and the ends to be
achieved. Strong measures appropriate to address one harm may be
an unwarranted response to another, lesser one.” 117 S. Ct. at
2169. RLPA is a very strong measure addressing an unproven set of
constitutional violations.

To prove congruence, two facts need to be widely recognized or
established through reliable factfinding (which can be
accomplished through general acknowledgment of a fact). First,
the states and local governments must have done something
unconstitutional or likely unconstitutional to justify the
federal intervention in their affairs. See The Civil Rights
Cases, 109 U.S. 3 (1883), cited in Flores, 117 S. Ct. at 2166.

To my knowledge, there is no evidence that the states and local
governments have engaged in a pattern of free exercise violations
through their land use laws. Religious buildings do tend to
conflict with land use regulations, but that does not mean that
religious entities’ rights under the Free Exercise Clause have
been violated. If the laws are applied generally and neutrally,
the incidental burden imposed by such laws is not
unconstitutional. Smith, 494 U.S. 872, 882 (1990).

If there were ever time when state and local governments needed
to be permitted to enforce general and neutral land use laws,
even if they burden religious institutions, now is the time.
Communities are increasingly interested in preserving open space,
historical properties, and cultural artifacts. The people seem
genuinely devoted to these causes, which have been taken up
recently by First Lady Hillary Clinton and Vice President Al
Gore. At the same time, religious institutions are turning to
ever-larger houses of worship and building complexes. There is an
unmistakable development toward all-inclusive services on one
religious entity’s property. For example, a single congregation
may build a building for worship, a movie theater, a coffee house
or restaurant, a fitness center, and a child and senior care
center on the same property. Religious entities are eager to
avoid land use laws with respect to these other buildings as well
as their houses of worship. By its terms, RLPA does not appear to
be limited to houses of worship and therefore would appear to
undermine local control over any building that is constructed by
a religious entity.

RLPA’s land use provisions take a large leap from existing
precedent to micromanage local land use decisions. They exceed
the power of Congress under Section 5 and they violate the
Constitution’s inherent principles of federalism.

Second, the means chosen must be “responsive to, or designed to
prevent, unconstitutional behavior.” Boerne, 117 S. Ct. at 2170.
In the absence of proof of unconstitutional behavior, this prong
cannot be satisfied.

4. RLPA Violates the Establishment Clause. According to the Court
in Employment Div. v. Smith, a “nondiscriminatory religious-
practice exemption is permitted.” 494 U.S. 872, 890 (1990). See,
e.g., Dep’t of Air Force, Reg. 35-10, para. 2-28 (b)(2) (Apr.
1989) (permitting wearing of religious head covering when
military headgear is not authorized and when the religious head
covering does not interfere with the function or purpose of
required military headgear); see also American Indian Religious
Freedom Act, 42 U.S.C. sec. 1996a (1994) (permitting Native
American use of peyote during religious ceremonies). RLPA,
however, is not a religious-practice exemption. Rather, it is a
readjustment of power between church and state intended to force
accommodation even when the government deems such an exemption
opposed to the general welfare.

There is no case support for the proposition that Congress has
the power to provide for or force accommodation in a wide variety
of fields simultaneously. Justice Stevens pointed out the
Establishment Clause evil in RFRA (and, therefore, RLPA) in his
concurrence in Boerne. 117 S. Ct. at 2172. Some have tried to
make a great deal out of the fact that no other Justice joined
Justice Stevens’ concurrence. Equally true is the fact that no
other Justice mentioned, let alone rejected, Justice Stevens’
reasoning. The oral argument before the Court in the Boerne case
would indicate that a significant number of Justices have sincere
concerns regarding the propriety of RFRA (and therefore RLPA)
under the Establishment Clause.

RLPA privileges religion over all other interests in the society.
While the Supreme Court indicated in Smith that tailored
exemptions from certain laws for particular religious practices
might pass muster, it has never given any indication that
legislatures have the power to privilege religion across-the-
board in this way.

RFRA’s and RLPA’s defenders have relied on Corporation of the
Presiding Bishop v. Amos, 483 U.S. 327 (1987), for the
proposition that government may enact exemptions en masse. This
is a careless reading of the case, which stands for the
proposition that religion may be exempted from a particular law
(affecting employment) if such an exemption is necessary to avoid
excessive entanglement between church and state. RLPA, like RFRA,
creates, rather than solves, entanglement problems. RLPA, which
was drafted by religion for the purpose of benefitting religion
and has the effect of privileging religion in a vast number of
scenarios, violates the Establishment Clause.

In sum, Congress lacks the power to institute this broad-ranging
attempt to privilege religion in a vast array of arenas. Even if
it held such power, this exercise of congressional power crosses
the line from permissible accommodation to the unconstitutional
establishment of religion.

Please do not hesitate to let me know if I can provide any
further information. Additional information on state and federal
religious liberty legislation can be obtained at my website:

1. Letters written to both the California and the Texas
legislatures indicate that one of the primary objectives of the
Christian Legal Society in supporting such legislation is to
permit members to trump the fair housing laws and to discriminate
against homosexuals.

2. The reference to “individualized assessments” is an attempt to
piggyback on dictum in the Smith case. The Court in Smith
indicated that individual assessments in unemployment
compensation cases might justify strict scrutiny. See 494 U.S.
884. The Court clearly did not mean that all unemployment
compensation schemes require strict scrutiny. The Smith case
itself involved an unemployment compensation claim and the Court
did not apply strict scrutiny. What the Court meant by
“individualized assessments” and whether the idea can be
analogized to the land use arena are open questions.

Professor of Law
Benjamin N. Cardozo School of Law

Professor Marci A. Hamilton, COMMENTARY: ON SCHOOL VOUCHERS AND THE ESTABLISHMENT CLAUSE: Power, the Establishment Clause, and Vouchers, 31 Conn. L. Rev. 807 (1999)


The Establishment Clause is a particular example of the Constitution’s separation of powers. The concept of separation of powers is often ascribed solely to the question of the proper relationship between the federal branches, but the entire Constitution is governed by the overarching principle that society is best served when centers of power are kept separate. Indeed, the most important contribution the American experiment has made to liberty may well be its extension of the concept of separation to the church-state relationship.

The very natures of church and state have made their separation frustratingly difficult. Each is authoritative, each is capable of exercising power in the public sphere with great alacrity, and each is more than willing to use the other to accomplish its own ends. The Supreme Court has had its hands full, to say the least.

In the midst of a chorus of criticism trained on supposed inconsistencies in the Supreme Court’s Establishment Clause cases, the Court has been admirably forthright about the fact that the establishment cases pose formidable challenges to judgment. The decisions have “reflected the need to rely on careful judgment–not simple categories. . . .” 2 The Justices have not flinched from their difficult duty under the Establishment Clause and have displayed relatively little angst over the conclusions they have reached. While Justice Scalia has been an intense critic of the Court’s apparent inconsistencies, 3 the Court has simply acknowledged the inevitable difficulty of the issues and forged ahead. This simultaneous admission of the difficult judgments posed by establishment questions and the Court’s relative comfort with its conclusions was captured in Chief Justice Burger’s opinion for the Court in Walz v. Tax Commission, 4 when  [809]  he stated: “This is a ‘tight rope’ and one we have successfully traversed.” 5 Underneath the tight rope lie crocodiles hungry for power–church and state among them.

There seems to be an almost irresistible impulse to find a particular “test” that would lead to clear answers for all the difficult questions posed by the Establishment Clause. The curious history of the so-called “Lemon test” illustrates my point. In Lemon v. Kurtzman, 6 the Court articulated several factors that had been used in previous establishment cases. 7 The Court did not claim to be crafting a bright-line test that would make it possible to leave judgment behind in all future establishment cases but rather characterized its mission with some modesty. These were the factors that had been used in previous cases, the Court told us, and they were now being gathered together. 8 Within a matter of years, the Lemon factors were transformed into the “Lemon test,” and this so-called test was subjected to withering criticism for its failure to predict results in close cases. 9 Yet, the Lemon Court’s summary of previous standards was not intended to foreclose further analysis under the Clause. This criticism of the Lemon factors is misplaced. The fact that it did not forestall the need for the further application of judgment in establishment cases is not remarkable. The hard cases are inevitable. In a particularly difficult case in which to articulate definitive establishment standards, Board of Education of Kiryas Joel Village School District v. Grumet, 10 Justice O’Connor declared what the case law had already revealed: the Establishment Clause lends itself to no “Grand Unified Theory.” 11

[810]  The task of balancing church-state power is unavoidably difficult. Power does not exist in static form. Rather, it is plastic in its permutations and infinitely creative in its drive to realize itself. Thus, the Establishment Clause is charged with the task of policing a constantly changing boundary between two dynamic social entities. It is hardly surprising that the “cases arising under these Clauses have presented some of the most perplexing questions to come before the Court.”12 The search for a unified theory is a diversion from the hard task assigned by the Establishment Clause.

There can be no grand unified doctrine under the Clause because of a congeries of factors, including the ontological status of religion, the nature of power, and the larger constitutional milieu within which church-state relations are set. On the basis of these circumstances, this Article rejects the search for a unified doctrine. Instead, it focuses attention on constitutional history as well as political and theological realities to explain and clarify the contingent nature of the Court’s doctrine. In the final section, this Article applies these insights to school voucher schemes. Like other establishment issues, school vouchers require the courts to apply careful and nuanced judgment regarding a particular scheme against a backdrop of church-state relations.


To say that there is no bright-line rule that will generate reliable answers in every establishment case is not to say that there are no principles capable of guiding the courts. The most important constitutional guiding principle is that all concentrations of power should be kept separate to the extent possible. The Establishment Clause rests on three constitutional fundamentals intended to distribute power throughout society. First, all concentrations of power can be turned toward tyrannical ends. 13 Second, liberty is best achieved by promoting a balance of power between social entities within society. 14 Third, religion will operate in the public, political  [811]  sphere.15 Through the Free Exercise and Establishment Clauses, the Constitution attempts to achieve a rough balance of power between church and state, simultaneously strengthening and cabining each. 16

As a historical matter, it is best to begin any analysis of the Bill of Rights, including the Establishment Clause, with the debates at the Constitutional Convention. The Federalists, and particularly James Madison, did not view the First Amendment as a new substantive limitation on the main text of the Constitution but rather as an iteration of the fact that the enumerated powers had not granted Congress power over religion. In other words, the First Amendment was thought to be a consistent, though wordier, statement of principles already inherent in the original draft. Thus, it makes sense to examine the Convention to divine the Framers’ views on religion.

At the Constitutional Convention, religion was treated like any other social entity capable of holding power. 17 Wherever the Framers looked, they accepted as a fact that men could and would use their power to accomplish evil, rather than good, ends: “From the nature of man we may be sure, that those who have power in their hands will not give it up while they can retain it. On the contrary we know they will always when they can rather increase it.” 18 In James Madison’s words, “The truth was that all men having power ought to be distrusted to a certain degree.” 19

There was broad consensus on the end to be avoided–tyranny from any social center of power. The Framers typically focused on the choice of the best means to avoid tyranny. All those with power were assumed to be interested in exceeding their authority. 20 Thus, this new national government  [812]  the Framers were crafting was constructed on the presupposition that its power was likely to be misused. 21

To avoid undue concentrations of power, the Framers sought to achieve a balance of power between identified social entities. 22 They envisioned society as a solar system or a watch. 23Each part had an assigned and independent role. But they were roles that were alsointerdependent. One force was intended to counterbalance every other force. Society was to be governed by the concept of separation of powers, a phrase unfortunately relegated in contemporary constitutional lore solely to the three branches of the federal government.

For the Framers, the appropriate exercise of power fell between two extremes. The one holding power could exercise it ineffectually or overbearingly. Either extreme was unacceptable. 24 Thus, James Wilson catalogued the types of bad, or tyrannical, government as follows: “Bad governments are of two sorts. First, that which does too little. Second, that which does too much: that which fails through weakness; and that which destroys through oppression.” 25 The Articles of Confederation had produced a government that was too weak. The Framers desired to construct a government that was strong, but not too strong.

The Framers’ general attitude of distrust was not limited to the government or politicians. Even religion was worthy of distrust. While the Framers acknowledged religion’s power and potential goodness, 26 they were more than a little concerned that religion could exceed its appropriate bounds in the political sphere. 27 When the Framers did refer to religion during the Debates, it was not for the purpose of singing its praises but  [813]  rather for the purpose of pointing to the fact that it, like all other social entities, is capable of overstepping its bounds. In particular, Madison pointed out that religious parties had lobbied the British Parliament to abuse its power to regulate “the qualifications both of the electors, and the elected . . . .” 28 This view was consistent with Madison’s earlier views expressed in his famous Memorial and Remonstrance in which he criticized religious assessments as a “dangerous abuse of power.” 29 As the Constitution worked itself out in practice, James Madison continued to voice such fears. In the years following his presidency, Madison warned of the “danger of silent accumulations & encroachments by Ecclesiastical Bodies,” saying that they “have not sufficiently engaged attention in the U.S.” 30

This distrustful attitude toward religion is hardly surprising; many in the states had fled Europe to escape religious oppression at the hands of powerful churches. 31 Moreover, one must take into account the predominantly Protestant mind set of many of the Framers. The Reformation occurred a brief two centuries before the Framing. Europe witnessed a series of events in that era that will continue to reverberate as long as Protestant sects remain distinct from the Catholic Church. The eighteenth century Protestant could not help but know and believe that religion had abused the people’s trust and undermined the public good at some time or another. This distrust of religion is evidenced in James Madison’s criticism of the Anglican Church in Virginia, when he complained that “pride, ignorance and knavery” prevailed among the priesthood while “Vice and Wickedness” afflicted the laity. 32 Indeed, inter-sect disputes at the time of the Framing were commonplace. 33

For the Framers, religion manifested itself in the political culture as religious sects or factions capable of wielding significant power. 34 The Framers valued religious liberty and therefore believed in protecting religion  [814]  from a potentially tyrannical state, but they equally regarded religion itself as potentially tyrannical. 35 In their view, religion was capable of applying political pressure in ways that were unacceptable in a republican democracy. 36 This complex attitude was basically Calvinist and in some senses paradoxical: they had faith in the good that human institutions can accomplish but also an acceptance of the fact that all human institutions are inevitably fallible. 37

In sum, a balance of societal powers is the Constitution’s graspable but elusive goal. Church and state not only fit into this model, but also demand such treatment if the maximum liberty is to be grasped.


The constitutional matrix with its focus on the balance of power invites courts to assess–either overtly or covertly–the relative power of religion and state. Without doubt, the power of the government has increased since the time of the Framing. Equally, the power of religion has increased. At this stage in history, neither entity should give solace to those–like the Framers–who fear abuses of power.

A. Religion’s Power in Contemporary Society

There is a tendency in modern discourse to assume that religion is marginalized or trivialized in American society. 38 The implicit argument has been that as the state and culture have increased in power and scope, religion has remained relatively the same or lost ground and therefore has been proportionally disabled in the political sphere. 39 Another branch of this theory is that religion has been relegated to a smaller portion of people’s lives. The argument is that religion must compete against pop culture, the government, and the global marketplace for a spot in the believer’s life. The problem with the marginalization thesis is that it conflicts with sociological data and political facts.

[815]  Since the 1993 publication of Stephen Carter’s tome to trivialization, The Culture of Disbelief, 40 the President and Congress have been striving mightily to prove that they take religion seriously. The Religious Freedom Restoration Act (“RFRA”), 41 which accorded religion more power against government than it has ever had in this country’s history, and the Federal Workplace Guidelines speak to the power of religion in politics today. 42 The huge margin by which RFRA was passed evidences the power of religion in Congress. 43 Moreover, RFRA’s legislative history, which is barren of critical analysis of its likely untoward effects on many elements of society including children, schools, prison administration, the environment, and historical and cultural preservation, demonstrates an almost mindless deference to religion that the Framers would have eschewed. The comments by members of Congress and the President on RFRA’s passage and the President’s remarks on the day the Guidelines were released make absolutely clear that the federal political branches are acutely aware of religion’s power in the marketplace and eager to serve it. 44 More recent hearings on the Religious Liberty Protection Act evidence a continuing zeal to serve religion. 45 Similar deference to religious interests can be found in the states. 46 The cases and statutes discussed below reinforce this political reality. 47

Father Andrew Greeley has presented statistical evidence that strongly indicates religion has not been marginalized in people’s lives. Indeed, he asserts that religion is just as much, if not more, a force in this era than it was in the supposedly deeply religious Middle Ages. 48

The case simply has not been made that religion’s power is weaker against the state than it was in the era of the framing. The Framers’ discussion of religion at the Constitutional Convention is just as insightful  [816]  today as it was then. They were not concerned about religion’s marginalization or the secularization of society. Nor were they infected by the Marxist or enlightenment dogma that holds that religion is a social fiction that will give way to a truer reality. The Framers treated religion not as a step in human social evolution, but rather as an unavoidable fact of human existence.

B. The Power of Religion to Obtain State Aid

Religion in the United States has tended to fare well in obtaining state aid. It has succeeded at the legislative level frequently and also fared increasingly well under Establishment Clause review of such legislation. Its successes bring to mind James Madison’s warning that “no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges.” 49

1. The Legislature: The Willingness of the State to Satisfy Religion’s Demands in the Political Arena

Just as Madison predicted, religion has not been reticent in the public realm or unwilling to approach the public trough. 50 In recent history, politically savvy groups, from the Christian Coalition to the Christian Science Church to the Coalition for the Free Exercise of Religion, have been active players in the political process eager for certain governmental favors. The very existence of the Establishment Clause cases discussed in the next section proves that religion has not been shy in the public realm. It would strain credulity to argue that the state benefits disputed in the establishment cases were simply the largesse and the initiative of state legislators. Common sense informs us that religious individuals and institutions have been pushing for such benefits for decades and will continue to do so. Indeed, these cases were before the Supreme Court and were therefore deemed worthy of lengthy and costly litigation only because the religious individual or institution desired to take advantage of particular public assistance. The Supreme Court’s cases only touch the tip of the political iceberg.

In each era, particular religious entities have taken center stage. Today, we hear most about two coalitions, the Christian Coalition and the Coalition for the Free Exercise of Religion. The question of their power is an empirical one. The following is an introduction to religious involvement [817]  and successes in the legislative process.

The political muscle of the Christian right was forcefully expressed by Pat Robertson last year when he declared with some confidence that his organization would tell Congress what to do on a variety of issues. 51 The Christian Science Church also has been extremely active in the state legislatures lobbying for exemptions from mandatory childhood immunization for communicable diseases, medical care requirements, and child neglect and abuse laws. Forty-five states, including the District of Columbia, permit parents to forego immunization for their children for religious reasons. 52 Those believing in spiritual treatment also have sought to avoid criminal prosecution or civil penalties when a child is permanently disabled or dies as a result of the failure to obtain medical treatment. 53 They have succeeded on this score in a large number of states.54 For example, in Oregon, a faith-healing sect was responsible for the death of three children. The local prosecutor sought to indict members of the sect but could not because Oregon state law exempted from the child neglect laws those who failed to obtain medical care for their children because of religious beliefs. 55

Faith-healing sects also have had significant successes at the federal level. 56 Under recent Medicare regulations that were amended so as not to be so obviously sect-specific after they became the subject of a lawsuit and media attention, faith-healing “nurses” who had trained one week to  [818]  assist those near death received federal Medicare funding. 57 In other words, individuals who did not believe in medical care were receiving federal funds intended for medical care. Similarly, the most popular HMO bill in the 105th Congress contained a provision that would have permitted faith-healing nurses to receive HMO insurance funds, and to do so without satisfying the rigorous screening requirements attached to any medical provider’s request for payment. 58

The most impressive accumulation of power by a religious entity in recent years resides in the Coalition for the Free Exercise of Religion (the “Coalition”). This organization, which now consists of approximately eighty organized religions and some civil liberties groups, was formed to correct the Supreme Court’s free exercise decision in Employment Division v. Smith. 59 The Court inSmith held that the Free Exercise Clause did not require the state of Oregon to pay unemployment compensation to fired state-paid drug counselors who used a narcotic, peyote, even if it was used in a religious ceremony. 60 The Coalition’s first tack was to attempt to overrule Smith through congressional enactment, the Religious Freedom Restoration Act (“RFRA”).61 RFRA attempted to alter dramatically the existing balance of power between church and state by forcing every government that substantially burdened religious conduct to prove that its law was enacted for a “compelling interest” and was the “least restrictive means” of achieving that interest. 62 This new benefit for religion was granted without serious scrutiny by Congress. 63The Supreme Court, however, held RFRA unconstitutional as beyond Congress’s authority. 64

The Coalition’s defeat with RFRA did not halt its political momentum  [819]  or tarnish its political influence. Within weeks of the Court’s decision invalidating RFRA, the House held hearings in which members of the Coalition were permitted to vent about the decision. 65 The Coalition then turned to two separate tasks: introduction of state-level rfras in all fifty states and a new federalrfra. 66 They have paired up with the Rutherford Institute in the states and succeeded in obtaining such legislation in Florida and in Illinois as well as a state constitutional amendment in Alabama. 67 They also succeeded in guiding such legislation through the California legislature, though it was vetoed in its entirety by then-Governor Peter Wilson. 68

At the federal level, the Coalition attempted to reinstate the RFRA regime through other congressional powers, including the Commerce Clause, the Spending Clause, and Section 5 of the Fourteenth Amendment. The bill was entitled the Religious Liberty Protection Act of 1998. 69 The hearings for the bill were heavily stacked by members of the Coalition, and members of Congress appeared receptive to their message at that time. 70

The list of religiously motivated political lobbying is longer than this Article can possibly document, but in addition to the above, three other examples are worthy of mention. First, the Catholic Church has been quite active in lobbying for school vouchers, both from the pulpit and in the [820]  public arena. 71 Various religious entities also have pushed for the charitable choice proposals that would funnel welfare funding from state or federal agencies into the hands of religious institutions. 72 Finally, the Native American Church has been extremely successful in asking for exemptions from generally applicable narcotics laws for the use of peyote in religious ceremonies. 73

[821]  Whatever one thinks about any of these examples as a policy matter, and I would support some and not others, their very existence proves that religion is an energetic actor in the political realm that will push for its own ends. Religion is not a passive participant in the political process but rather a potent presence with the capacity to overreach. 74 It continues to deserve the mantle of distrust Madison placed upon it when the courts approach establishment questions.

2. The Cases: The Willingness of the Courts to Uphold the State’s Beneficence

While religion has not been shy about requesting or accepting public assistance, the Court has tended to permit an increasing amount of aid to sectarian institutions. Beginning with the Court’s first establishment decision upholding free transportation for children attending nonpublic–primarily sectarian–schools, 75 the Court has had to address a large variety of schemes that benefit sectarian institutions. Every imaginable aspect of a sectarian school’s budget has been the object of state legislation at some point: transportation; 76 books; 77 maintenance and repair;78 tuition assistance through tax deductions, benefits, or direct grants; 79 teachers’ salaries; 80field trip transportation; 81 test and scoring services; 82 diagnostic and therapeutic services; 83on-site special education teachers; 84 specially drawn school districts; 85 vocational rehabilitation; 86 interpreters for the deaf; 87 and  [822]  property tax exemptions. 88

As the previous section shows, though, the political reality of religion’s power extends well beyond the scenarios addressed in the Court’s establishment cases. 89 Too often, the Court treats the benefits disputed in the establishment cases as isolated, and therefore likely benign, events. The apparently benign provision of a tax deduction for sectarian school tuition or textbook loans does not appear as benign, however, when one understands that they are integral pieces of a larger puzzle of political pressure. The political realities prove the fundamental soundness of the Court’s admonition in Committee for Public Education and Religious Liberty v. Nyquist 90 that a lax establishment doctrine will lead states “openly [to] subsidize” sectarian interests. 91


The history of the Establishment Clause argues in favor of retaining a distrustful attitude of those with power, whether they operate under the guise of church or state. The Court’s contemporary doctrine needs to be realigned to serve this fundamental constitutional insight.

A. The Inadequacy of Nonpreferentialism to Meet the Evils Intended to Be Redressed by the Establishment Clause

There is precious little regarding the framing of the Establishment Clause on which we can hang our hats. Some have examined selective bits of the Clause’s history to conclude, along with Chief Justice Rehnquist, that the Clause creates a nonpreferentialist rule. Such a rule precludes the establishment of a single church by the state but permits the government to favor religion on an evenhanded basis. The nonpreferentialist rule is seductively simple, seemingly offering a path away from the current thicket of establishment cases. As a historical matter, however, it is an oversimplification of the milieu against which the Establishment Clause was drafted and adopted.

The nonpreferentialist school is mistaken. The Establishment Clause was drafted in an era when most states did not have single establishments. Rather, they had multiple establishments. 92There were a number of states that established not the Episcopal Church but rather Protestantism. In  [823]  each community, the people would vote on who would be their minister from a range of denominations. That denominational choice would then preach in the church constructed with citizen’s tax dollars.

This concept of multiple establishment was an innovation in the states. In contrast, in Europe, establishments had been sect-specific–for example, the Church of England or the Roman Catholic Church. 93 Because the era surrounding the Establishment Clause featured multiple establishments rather prominently, the prohibition on establishment in the Establishment Clause should not be taken to mean only a prohibition on the Europeanstyled single-church establishment. Rather, the Clause was intended to prevent the establishment of a class of religion or even of religion generically. Thus, it does not mean only that a single church cannot be joined to the state, but it also means that no set of religions can be joined to the state.

Nonpreferentialism forbids the evil of a single-church state, but it fails to redress the inappropriate exercise and accumulation of power when religious entities band together. Indeed, it invites the political union of religious entities seeking similar ends as a way of avoiding establishment strictures. In other words, it creates an incentive for the religious sects that Madison believed would not join together (and therefore would pose little risk for the balance of power between church and state) to join together. One might argue that the nonpreferentialism “rule” is accurate historically on the ground that the Framers did not believe disparate religions would come together and therefore the only evil the Establishment Clause needed to address was single-sect overreaching. Such an empirical basis for nonpreferentialism has been withdrawn in this era in which religious entities have learned that working together can serve their mutual ends in the political sphere. 94 The balance of power cannot be served therefore through simple protection against single-sect domination but rather through the more complicated task of finding an appropriate balance of power between state and church.

This reading is consistent with the many statements at the Constitutional Convention that the Constitution is intended to demarcate boundaries of power between social entities and to keep the various powers discrete. 95 In Madison’s words, “religion and Government will exist in  [824] greater purity, without [rather] than with the aid of Government.” 96 Church and state are both better off on this account if they remain significantly distant. The hard question is how distant they must be and how that distance is to be achieved. This is a matter of line drawing, obviously not a simple task in this arena. 97

Given the ever-changing state of play between church and state, any landmark in establishment jurisprudence has been wrung for meaning. Most notably, Thomas Jefferson’s famous “wall of separation” between church and state has been one of the pivotal metaphors in the Establishment Clause debate. 98 Unfortunately, the metaphor can be misleading because it seems to offer an either-or proposition: there is a wall or there is not. But that is an unhelpful tack because the either-or approach focuses solely on the wall between church and state, rather than on what lies on either side. An overly constricted focus on the wall itself forces the inquiry into its potential characteristics: from brick and mortar to porous. 99 Yet the wall is not what matters most under the Establishment Clause. What matters more is the shape and strength of religion and state on either side of that wall. Depending on those characteristics, the wall needs to be either brick and mortar, porous, or somewhere in between. It is the Court’s job to custom design a series of walls over time, taking into account the relative power of church and state at that time in that scenario. Thus, “it has never been thought either possible or desirable to enforce a regime of total separation.” 100 Equally, it has never been thought prudent to remove the wall altogether.

Nonpreferentialism builds an insuperable wall between the state and any one religious entity but removes the wall altogether when the religious entity is an accumulation of sects. Its oversimplification of the evils to be redressed by the Clause thus ties the hands of the courts when they address the relevant balance of power between church and state.

B. Establishment Clause Doctrine

The Supreme Court’s doctrine in the Establishment Clause arena has  [825]  been treated to more internal and external criticism for its lack of consistency, perhaps, than any other constitutional doctrine. 101 Yet, this is one of those constitutional arenas where consistency is more a “hobgoblin” 102 than a helpful criterion.

The existential fact of changing power relations between these two most authoritative structures of human existence forces the doctrinal analysis into a fluid mode that must focus on the facts of each case. This political, theological, and ontological reality forecloses the possibility that any one case or controversy necessarily should predetermine whether an arguably similar law should be held valid in the future. 103 The relevant facts in any establishment decision include the particular issue at stake but also the social context against which the church-state relationship must be assessed. For example, the inscription of “In God We Trust” on our coins in contemporary culture has not caused the courts concern, but a ruling by the Securities and Exchange Commission that all stocks must bear the same inscription would indicate a shift in church-state relations that is likely to trigger serious concerns. The logical result is that particular arrangements between church and state that may achieve an appropriate balance of power in one era may not do so in another.

The Establishment Clause does not lend itself to a “Grand Unified Theory.” 104 Rather, it charges the courts with delineating the boundaries between church and state over time. This is an arena where lamentations over inconsistent doctrine are beside the point. 105 Because church and state ever will reach for an increase in power (either alone or together) and therefore their relative power can change in an infinitely creative number  [826]  of ways, mere predictability of the standards to be applied cannot and should not be the final goal of Establishment Clause doctrine. Rote application of bright-line rules to similar factual skeletons would hand church and state a too easily manipulable regime. 106

In fact, only a minority of the Court has trumpeted the necessity of consistency, while the majority has followed the more difficult path of divining whether particular church-state relations approximate the constitutional goal of a balance of power. The demands for consistency are but a distraction from the more important question of the appropriate allocation of power between state and religion.

From the beginning of the Court’s establishment jurisprudence, it has used accumulations of power as a touchstone for establishment violations, rather than any single bright-line test. In the establishment cases, the Court’s attention has been trained, appropriately, not on devising a bright-line test, but rather on the political reality of the balance of power between church and state presented in each case. The Court’s analysis is more akin to Goldilocks’ approach (too hot, too cold, just right) than any rigid logical formula. In this arena, the Court has internalized to a degree the Framers’ distrustful attitude toward any entity exercising power. As it has done so, establishment doctrine has evolved into a context-dependent and era-dependent balancing approach, which affords the Court maximum flexibility to identify inappropriate relationships of power. 107

The Court’s context-dependent and era-dependent doctrine has accreted so that the clause can redress not any one particular evil but rather a series of evils that have revealed themselves as time marches on. The underlying question posed throughout the establishment cases is whether the balance of power between church and state is tipped by the particular law under attack. The presumption standing behind this question is that the current status quo likely presents an acceptable balance of power. It is not the only acceptable balance that might be struck, but it is acceptable at this stage in history, because the earmark of an inappropriate balance–tyranny by either church or state–is not evident.

This explains the Court’s willingness to uphold practices that are embedded in society, even if they would appear suspect if they were first introduced  [827]  today. For example, in Walz v. Tax Commission, 108 the Court upheld by a vote of eight to one real property tax exemptions for religious entities. 109 Without question, such exemptions are a significant source of wealth redistribution to the churches. Indeed, many churches have reached a point where they could not operate without such exemptions. Yet, the Court did not invalidate the property tax exemption. The important question is why.

Although the Walz Court walked through its existing doctrinal approach, the Court’s trump card was the fact that such arrangements had been in place since the framing of the Constitution. 110After years in place, property tax exemptions did not appear to the Court to have resulted in either church or state becoming tyrannical. Its analysis was political and pragmatic. In response to Justice Douglas’s dissent, in which he argued that tax exemptions are the first step in establishing a state church, the majority replied: “If tax exemption can be seen as this first step toward ‘establishment’ of religion, as Mr. Justice Douglas fears, the second step has been long in coming. Any move that realistically ‘establishes’ a church or tends to do so can be dealt with ‘while this Court sits.'” 111 Thus, the Court refused to take a categorical approach to establishment analysis as it embraced a case-by-case, era-by-era analysis that turns on the practical political realities of the time.

In 1971, twenty-four years after its first foray into interpreting the Establishment Clause, 112 the Court reviewed its establishment cases to conclude that various factors are relevant to establishment analysis. The Court summarized the factors it had considered as follows: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.'” 113 This collection of disparate factors was geared to meet abuses of power coming from any of a number of directions: from the state purposefully attempting to elevate a religion or religions above all other societal interests, from the churches achieving favorable legislative effects simply because they were churches, and from the inappropriate intermingling  [828]  of church and state power. 114 The Court was concerned not only with intentional state action that resulted in an inappropriate shift of power toward religion but also with religious windfalls in the legislatures and with the potential mischief created when the two entities share power. With its announcement of the Lemon factors, the Court consciously positioned itself as the guardian against the complicated play of power between church and state mutually or individually overreaching.

Thus, the Court’s doctrine has been crafted to address a multiplicity of evils rather than any single evil. In the Court’s words, “What our cases require is careful examination of any law challenged on establishment grounds with a view to ascertaining whether it furthers any of the evils against which that Clause protects.” 115

1. The Talisman “Neutrality” Has Torqued the Doctrine and Opened the Door Wider for Religion to Operate to Achieve Its Political Goals

Some of the most vexing cases under the Establishment Clause have involved state aid to religion. This is an arena where the Court has clearly applied a pragmatic balancing approach. It is also an arena where the concept of “neutrality” has shifted the analysis away from the Framer’s fundamental insight that religion is capable of acting against the public good. Like nonpreferentialism, neutrality does not offer a magical elixir that can lay to rest establishment quandaries in the future.

In a stream of cases, the Court has examined each aid situation as an individual set of unique facts. They have brought to these cases a variety of factors that have accreted to the establishment doctrine over time and attempted to determine if the balance of power in that particular scenario was tipped.

From its first establishment case, the Court adamantly has refused to read the Establishment Clause as an absolute ban on aid to religion. In Everson v. Board of Education, 116 the Court ruled that public school districts could bus parochial as well as public school students. 117 As a realistic matter, free bus transportation is a boon to both religious school students and the schools themselves. 118 The state, thus, is assisting religion. In dissent, Justice Jackson assessed the facts of the case to conclude that  [829]  such assistance was unconstitutional.

The rest of the Court, however, rejected the notion that free transportation crossed the establishment divide. The members of the Court reasoned from a determinedly pragmatic perspective. They worked from the proposition that children must attend school and that they had earlier ruled that students must be permitted to attend nonpublic schools. 119 Moreover, it was a fact of contemporary reality that churches received a vast range of “assistance” from the community in the form of police and fire protection, sewer systems, public highways, and sidewalks. 120 This was a “general program” that did not amount to a contribution of “money to the [sectarian] schools” or “support them.” 121 As a pragmatic matter, then, there was no fear that the state was supporting the churches or furthering their religious mission.

The Court has taken this pragmatic approach through its aid cases to determine that a state could not fund maintenance and repair costs for sectarian schools, provide tuition reimbursement, grant income tax benefits, 122 provide instructional materials and auxiliary services programs, 123 free transportation for field trips, 124 or on-site special education teachers. 125 The state has been permitted, however, to provide free transportation, 126 property tax exemptions, 127 textbook loans, 128 secular textbook loans, standardized tests and scoring services, diagnostic and therapeutic services, 129 vocational rehabilitation assistance for the blind, 130 tax deductions for tuition, textbooks, and transportation, 131 an interpreter for a deaf student, 132 and on-site teachers for special education. 133 There are more cases permitting a particular type of aid than not. In other words, the Court has not been parsimonious about permitting the state to aid religious schools. Through piecemeal efforts–a book here, a bus there–state legislatures have been permitted to provide a great deal of assistance to students who  [830]  are in sectarian schools. State allocations to discrete student needs when examined on a case-by-case basis simply have not appeared to tip the balance of power between church and state to any significant degree.

Yet, not all aid arrangements have passed muster. In Committee for Public Education and Religious Liberty v. Nyquist, 134 the Court held that repair and maintenance grants and tuition reimbursement grants were unconstitutional. 135 The Court also invalidated the grant program that permitted poor parents to receive reimbursement of “$ 50 for each grade school child and $ 100 for each high school child . . . [provided] the amount of state reimbursement [does] not exceed 50%” of actual tuition paid. 136 In a 6-3 decision, the Court rejected these programs on the ground that both programs permitted a stream of income to benefit sectarian schools without any assurance that the expenditures were used for the secular teaching of the schools rather than the religious. In other words, the programs lacked any safeguards that would prevent the grants from turning into direct state support for religious schools.

The repair and maintenance grants failed because the state made no effort to restrict the monetary payments for repair and maintenance to solely secular purposes. Moreover, the Court implied that such monitoring would run afoul of the Constitution as well. 137 Thus, the payment to the schools was insufficiently policed and incapable of being adequately policed.

The tuition reimbursements, which were limited to 50% of nonpublic school tuition, also failed on the same reasoning, with the Court saying that they lacked “a guarantee that state funds will not be used to finance religious education.” 138 The State “must be certain” that its money is not being used to “inculcate religion.” 139

The Nyquist Court then stepped back to its pragmatic perch and assumed that whatever line they drew in the establishment cases would be subject to constant pressure from both sides. The 50% limitation in the tuition reimbursement scheme was inadequate to ensure that public monies would not support religious inculcation. It recalled that in Earley v. DiCenso, a companion case toLemon v. Kurtzman, 140 a salary supplement to  [831]  teachers of secular subjects in all schools was invalidated even though it was limited to 15% of the teacher’s annual salary. The Court had reasoned that the mere assumption that a low percentage–15%–would subsidize secular rather than religious subjects was insufficient. The state in Earley could not rely “on the assumption that, whatever a secular teacher’s inabilities to refrain from mixing the religious with the secular, he would surely devote at least 15% of his efforts to purely secular education, thus exhausting the state grant. It takes little imagination to perceive the extent to which States might openly subsidize parochial schools under such a loose standard of scrutiny.” 141

In sum, the primary concern in Nyquist was that the financial assistance could find its way into religious purposes. The underlying assumption, which rings of the Framers’ presuppositions regarding the exercise of power, was that there would be a constant political push to aid parochial schools and a willingness in those institutions to convert public monies to religious ends. Neither state nor church could be utterly trusted, and therefore schemes without mechanisms of limitation could not pass muster.

In a sea change, a 5-4 Court in Mueller v. Allen 142 did not find the same constitutional errors in a Minnesota law permitting taxpayers to deduct expenses incurred in providing tuition, textbooks, and transportation for their children. The Court’s focus shifted in this case. No longer was the Court worried either overtly or implicitly about abuses of power by either church or state. Rather, the Court operated at a farther level of abstraction. Indeed, the burden shifted. In Nyquist, the Court held that it was necessary to be “certain” that the funds did not further religious purposes.143 In Mueller, however, the Court stated that to invalidate an aid program benefitting religious institutions, there must be “certainty” that there is an empirical benefit to religious institutions.144

The Court concluded that the tax deductions did not advance religion because they applied to both private and public school students. This was an “attenuated financial benefit,” 145 rather than a direct payment into the schools, and therefore looked more like the cases in which aid was approved than the invalidated scheme in Nyquist. The Court explained that the scheme in Nyquistonly benefitted parents of children in nonpublic schools but that the Mueller scheme benefitted children in all schools.  [832]  Thus, “neutrality” saved the day.

From the Framers’ perspective, this is odd reasoning at best. The Court looks more like an ostrich than any other creature. The distrust of all social entities inherent in the Constitution is mediated in favor of a presumption that “neutral” state aid does not effect a real benefit for religion. This is, undoubtedly, a twist on establishment jurisprudence, but it requires careful parsing to determine exactly how the Court has torqued the doctrine.

The Court does not, in fact, take issue with the Framers’ warnings about abusive exercises of power. The Court continues to operate within a Calvinist framework: “‘What is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.'” 146 Having acknowledged the structural role of the Establishment Clause, however, the Court made an empirical determination that there need be less worry in this century about the evils to be addressed by the Establishment Clause than in the Framers’ time:

At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. The risk of significant religious or denominational control over our democratic processes–or even of deep political division along religious lines–is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court. 147


Thus, the Court decided Mueller under the same legal analysis that was applied in Nyquist but against a differently understood empirical reality. The Framers’ pragmatic distrust was assuaged by an apparently tolerable status quo. The result was allegiance to neutrality combined with a sanguine assumption that religions would not exercise its power in the public sphere inappropriately or in opposition to the public good.

In sum, establishment jurisprudence has turned on two considerations: (1) a doctrinal foundation that distrusts inappropriate accumulations of power in either church or state, and (2) the finding of a constitutional fact, an empirical finding that measures the threat to liberty engendered by certain church-state relations in a particular era. At some level, the cases  [833]  have held to the Framers’ views under the first prong, but have widely departed from the second.

2. From Aguilar to Agostini: A Case Study in Context-Dependent Balancing

One of the most explicit examples of the Court’s pragmatic, power-balancing approach in establishment cases exists in the Aguilar/Agostini pair of decisions. In Aguilar v. Felton, 148 the Court held that state-paid special education teachers were prohibited from going on the premises of sectarian schools. 149 The Court explained as follows: “Though a comprehensive system of supervision might conceivably prevent teachers from having the primary effect of advancing religion, such a system would inevitably lead to an unconstitutional administrative entanglement between church and state.” 150

The Court’s decision resulted in some interesting, and even comical, arrangements in the New York City school system, where millions of dollars were spent to locate trailers on the streets outside sectarian schools where special education teachers could assist the sectarian school students. 151 This strained arrangement continued for over a decade.

The same case then returned to the Supreme Court, with a new name, Agostini v. Felton. 152The Court this time held that public school teachers could go on the premises of the sectarian schools where their tasks were plainly not in furtherance of the religious mission of the school.153 Only ten years apart, the Court reached opposite conclusions under the Establishment Clause in precisely the same case.

The easy critique of the Aguilar to Agostini story is that the Court’s Establishment Clause jurisprudence is in disarray, that the Justices do not know what they are doing in this arena, and, therefore, some quick-fix is needed. 154 I would explain the decisions more charitably. The Court’s  [834]  willingness to overturn Aguilar does not necessarily signal a lack of direction. Rather, it indicates that the Court’s compass is gauging political realities, rather than abstract principles. 155 The decision in Agostini reversing Aguilar is evidence that the Court is monitoring its establishment decisions to determine that the proper balance between church and state has been reached. Had Aguilar led to an efficient and successful delievery of services to private school systems, it is highly unlikely the Court would have been so eager to overrule it. When the result of its decisions is nonsensical, expensive, and the likelihood of tyranny is low, were the Court to reverse itself, it does so. Not because it does not understand how and why to apply the Establishment Clause’s prohibitions, but precisely because it does.

The Court’s establishment cases, thus, turn on constitutional factfinding regarding the relative power of church and state. To date, this factfinding has been stated as a set of presuppositions and has been subject to precious little hard analysis. The empirical relationship between church and state is crucial to determining whether there is a risk of establishment. 156 This empirical foundation to establishment analysis has gone unnoticed as scholars and Justices have debated the doctrine without acknowledging the factual presuppositions underlying their analysis. Thus, the cases turn on unexamined presuppositions about the sociological status of religion in society.

In this game of power, which is played on a field of unexamined presuppositions, characterization may be everything. The more unthreatening religion is made to appear, the more likely aid to religion will appear to be unthreatening. One can expect religion to don the garb of ineffectualness as it improves its political tactics.

Whether religion will become a threat to liberty can be examined on two axes. The first question is how much power religion holds. The second question is what kind of power religion is being permitted to exercise. The establishment cases have tended to answer both questions in ways that privilege religion. First, they have assumed too often that religion is a relatively powerless player in the political sphere. Thus, they have ruled, a little bit of discrete aid, 157 an opening legislative prayer, 158 and a Christmas  [835]  display balanced by other religious and secular symbols, 159 can do no harm to the church-state balance.

Second, they have assumed that religion exercises benign power. As recently as 1970, the Court has treated religion to be protected under the Religion Clauses as a rather homogeneous entity that has a “harmonious relationship to the community.” 160 The Court justified real property tax exemptions for all churches on the ground that “certain entities . . . that foster [the community’s] ‘moral or mental improvement,’ should not be inhibited in their activities by property taxation or the hazard of loss of those properties for nonpayment of taxes.” 161 The Court seems to believe that religion is a milquetoast set of beliefs that will necessarily enhance the public good. The modern Court has generally failed to acknowledge the wide range of religions that may pose a threat to the general welfare such as the Aryan Brotherhood or the Satanists or even the multitude of mainstream religions, each of which is capable of acting in ways that undermine the public good.

Yet, as the Court has resorted to oversimplified and whitewashed versions of religion in deciding the establishment aid cases, it has held to a more realistic view of religion in the free exercise cases. In a strangely schizophrenic twist, at the same time that the Court’s establishment doctrine has treated religion as a benign and nonthreatening force, its free exercise doctrine has treated it as a force capable of undermining the public good. This attitude spans its first free exercise case,Reynolds v. United States, 162 to its more recent jurisprudence. In Employment Division v. Smith, 163 the Court held that religion does not have a constitutional right to trump generally applicable, neutral laws. 164 In Smith in particular, the Native American religion’s practice of smoking peyote, an illegal narcotic, could not trump the state’s laws against illegal drug use. 165One of the major premises of this conclusion is that religion is capable of doing that which is inconsistent with the general welfare, which is protected by neutral laws of general applicability. Just as it had said in its first free exercise case, the Court reaffirmed in Smith that the Religion Clauses do not  [836]  permit an individual “to become a law unto himself.” 166 Religion is not a necessarily benign force permissibly fostered by the state but rather a forceful entity capable of undermining the public good. It is also an entity capable of protecting itself through the political process where its demands can be assessed according to the greater public good. 167 This relatively less flattering, though more accurate portrayal of religion as a capable political actor, brings to the foreground the clashes between law and religion that have been swept aside in the Court’s establishment discourse. The examples of such clashes are numerous: religions have claimed the right to override a wide variety of laws, including laws protecting children, 168 local land use laws, 169 and school safety rules. 170 The inevitable conflict between laws for the general welfare and religion is unlikely to abate any time soon. Likewise, religion’s propensity to ask for state aid is unlikely to vanish. These political realities should inform the factual presuppositions undergirding the courts’ aid cases, including those addressing school vouchers.


Despite the tight budgets most states and local governments labor under, there is a serious push to institute voucher systems. The policy justifications for voucher schemes tend to turn on the claims that there is a crisis in public education and that public schools deserve to be subjected to competition. 171 Without disagreeing with this policy perspective, I doubt very much that voucher schemes that funnel public monies to sectarian schools are sufficiently constitutional to justify the interest currently focused upon them. The constitutionality of voucher schemes turns on two elements: constitutional fact-finding regarding the current state of play between church and state,172 and application of the doctrine to that  [837]  constitutional fact-finding.

All voucher schemes are means by which local governments provide tuition assistance for students to attend nonpublic schools. Obviously, public schools receive public assistance. Aid to nonpublic schools comes in at least three flavors. Assistance can be provided to (1) sectarian school students only, (2) nonsectarian school students only, or to (3) all nonpublic school students, sectarian and nonsectarian.

The first flavor–aid to sectarian students only–is undoubtedly unconstitutional. Assistance directedonly to religious schools violates even the most lax establishment doctrine. 173

The second flavor–aid to nonsectarian students only–is likely constitutional on the grounds that the exclusion of religious schools is necessary to avoid serious establishment difficulties. This is precisely the reasoning employed in Corporation of Presiding Bishops v. Amos 174 to uphold Title VII’s exemption of religious employers from the proscription of discrimination on the basis of religion. 175 Such a scheme could be subject to a free exercise challenge, however, if the excluded religious schools could show that they were excluded on the basis of animus. 176 In the absence of animus, such a program should pass free exercise muster. 177

It is the third flavor on which this Article will focus: the voucher scheme that is facially neutral, i.e., that provides tuition assistance to all nonpublic students, whether they attend a sectarian or nonsectarian school. 178 Nonpreferentialism that fails to investigate the empirical relationship between church and state would argue in favor of such a scheme. It would also pass a facial “neutrality” test. Once one starts exploring beneath the surface, however, potential establishment evils appear.

First, a facially neutral scheme may be a pretext to privileging a particular religion. If all of the nonpublic schools in a particular district are  [838]  from one sect, then the balance of power between the state and religious sects has tipped too far in favor of a single religion.

Second, a facially neutral scheme may also, as a factual matter, favor religion over irreligion. 179A system in which all of the nonpublic schools are pervasively sectarian, though not all of a single sect, permits a significant union of church and state power that should be troubling. In this era, in which the vast majority of nonpublic schools are pervasively sectarian, 180 facial neutrality is likely not substantive neutrality. 181 While programs that “neutrally provide[] state assistance to a broad spectrum of citizens [may not be] readily subject to challenge under the Establishment Clause” 182 under the Court’s reasoning in Mueller and Bowen v. Kendrick, 183 the political reality is that voucher schemes at the end of the twentieth century in the vast majority of jurisdictions in the United States are unlikely to provide assistance to a “broad spectrum of citizens.” 184

Third, a facially neutral scheme may distribute public moneys to sectarian institutions in a manner roughly equivalent to the money distributed to nonpublic nonsectarian institutions. The question is whether this evenhanded distribution forestalls establishment concerns. This is where “judgment–not simple categories” 185 must come into play in each case.

To be true to the Establishment Clause’s fundamental political presuppositions, the courts would do best to adopt the Court’s approach in Nyquist, which is aligned with the Framers’ general attitude of distrust even if benefits are packaged with benefits for nonsectarian institutions. The Establishment Clause argues against the Court’s more trusting presuppositions in Mueller. 186Religion may have chosen to go behind the scenes in this republican democracy throughout the course of over two hundred years, but that does not make its drive to power any less a matter of concern.  [839]  We have not reached a point “far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights,” 187 but rather live in an era when we need be certain that religion is not overreaching. On the state of the existing political record, “it takes little imagination to perceive the extent to which States might openly subsidize parochial schools.” 188 Thus, the “channel [for direct aid to sectarian schools should be] a narrow one.” 189

How narrow the channel will be will depend on the questions posed in each establishment case by the courts. Where the benchmark is the relevant power between church (whether an individual sect or a collection of sects) and state, an appropriately distrustful court should ask the broaderLemon questions as well as the following: (1) how much money is being passed from public hands to sectarian hands, in raw dollars, in proportion to the sectarian institution’s budget, and in proportion to the government’s school budget; (2) who decides how much money is given to the sectarian institutions; (3) how is the money distributed to the sectarian institution; (4) which students are receiving the benefit of the money, for example, is it limited to a small class of the poor or does it provide money to those who would have been able to pay the tuition regardless; (5) how does the government know how its money is being spent by the sectarian institution; (6) may the sectarian institution raise its tuition once the government starts paying and then use the difference for purely sectarian purposes; (7) how will increases in funding be enacted in the future; and (8) is the same amount of money being handed to each sectarian institution, either by pro rata share or in raw dollars.

This is not an eight-part test to be amended to a three-part Lemon test. Rather, it reflects the beginning of an open-ended, challenge-specific inquiry into the relevant power between church and state before the scheme is instituted and after the scheme is in place. Admittedly, it provides precious little succor for those hoping for a safe haven in establishment cases that could protect one from the burden of exercising judgment. But it is the best that can be done.

Facially neutral voucher schemes posit a potential mingling of church-state power that should make anyone–including voucher supporters–step back for a minute. Voucher schemes open the statehouse doors to church lobbying for increases in voucher rates, lobbying regarding when payments are made and how they are made. It takes little imagination to extrapolate from these inevitable topics of lobbying in a voucher district to  [840]  a scenario where sectarian administrators are in as much consultation with public officials on a wide variety of school issues as are public school administrators.

The entanglement between church and state is the least of it. Competition between sects for aid likely will increase. We can take a page from history here. When New York lived under a multiple establishment in the seventeenth and eighteenth centuries, a system in which a variety of religions were preferred, “there was constant argument [between those supporting the Church of England and those supporting other Protestant denominations] concerning the disposition of tax funds for the support of religion.” 190 The reality is that money breeds political activity and that contemporary churches are very comfortable in the lobbying mode. In short, a voucher system opens the door to excessive and escalating entanglement even if the voucher system on its face looks neutral.

The result of this mingling of church-state power is unlikely to be good for the public good, and it may not even be good for the churches. It is instructive to examine the German system of tithing to get some perspective on the question of state aid to churches in the United States. In Germany, if one declares membership in a particular church, the state taxes one’s income by a flat rate. 191 If one does not pay the tithing tax, tax evasion charges follow. German tennis star Stefi Graf can attest to this. 192 I raise this point because the state’s involvement as the throughway mechanism for church income may have hurt church giving in Germany. 193

This rupture may have been caused in part by the fact that churches are now a step removed from their givers. The theory among givers apparently is that what the state takes is enough, even too much. Therefore, why give spontaneously, why give for particular causes? You have done your duty by paying into the state’s church fund.

This experience can be analogized to the voucher scenario. At this time, private schools are largely self-funded entities and the relationship between parent and school is cemented by tuition payments, i.e., money. The parents give a great deal in volunteer efforts to raise money and to [841]  oversee the school’s actions. Will this continue to be just as true when the government operates as the funds gatherer and dispenser? Government involvement sunders the previously self-referential system and, therefore, may hinder fund-raising as it reduces the accountability of the sectarian school officials for the funds received.

When the money parents currently pay to sectarian schools is given to the parents by the state, the bonds of accountability have been stretched if not breached. If the school does not have enough money to fulfill its desired program, the school may well argue in favor of a tax increase rather than going to the parents. In a voucher regime, it is likely to do both. Or, when the school complains of inadequate funds, the sectarian school parents may well accuse the school of ineffective lobbying. State funding of sectarian schools therefore transforms the parents’ concerns into issues that are “not their problems” because the money does not originate in their pockets and travels directly to the school. Far from the benevolent contributors to a free market in education their supporters invoke, 194 voucher systems are an assault on the free market in educational systems because they rupture this otherwise close relationship between consumer and producer.

Current political reality thus counsels caution in the face of facially neutral voucher systems. Neither nonpreferentialism nor neutrality should be permitted to short-circuit the important, though difficult task of discerning the appropriate balance of power between church and state. There may be an “education emergency,” but tipping the balance of power between church and state by further opening the states’ coffers to religion trades in a serious policy dilemma for one that could shake the foundations of the republic. Fortunately, “the Constitution protects us from our own best intentions” by prohibiting us from “concentrating power in one location as an expedient solution to the crisis of the day.” 195


In this era, many voucher systems that permit governments to subsidize sectarian education cross the constitutional line. Along with other religious liberty legislation now being promoted in Congress and the  [842]  states, they are classic examples of overreaching. 196 True to the Framers’ fears, religion has not limited itself to an ineffective political institution over which there need be no concern. It is as eager in the political arena now as it has ever been in history. The push for school vouchers is just one part of the picture. The Court’s free exercise doctrine takes this political reality into account; its establishment cases have yet to do so.

The pervasive hand-wringing over inconsistency in the establishment cases has deflected attention from the more fundamental inquiry into the unexamined presuppositions in the establishment cases regarding the power exercised by religion. The charge of inconsistency is attributable to a misdirected focus on tangential aspects of the Court’s cases:

In attempting to articulate the scope of the two Religion Clauses, the Court’s opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles. 197


The courts properly stand as a brooding omnipresence behind the complex play of political forces between church and state. This complex task requires “room for play in the joints” of the doctrine. 198 Under the Establishment Clause, the courts need to be a substantial check on present abuses of power, not just legislative-like bodies issuing reliable edicts for the future. 199Thus, the inevitably sly permutations of power make ad hoc, case-by-case decision-making in this arena not only inevitable but a positive good.

James Madison issued a prescient warning that the “danger of silent accumulations and encroachments by Ecclesiastical Bodies has not sufficiently engaged attention in the U.S.” 200Establishment Clause doctrine needs to be re-innoculated by this healthy, albeit distrustful attitude.



1. Alaska: ALASKA STAT. § 14.30.125 (Michie 1998).
2. Arizona: ARIZ. REV. STAT. ANN. § 15-873 (West 1991).
3. Arkansas: ARK. CODE ANN. § 6-18-702 (Michie 1993 & Supp. 1997).
4. California: CAL. HEALTH & SAFETY CODE § 120365 (West 1996).
5. Colorado: COLO. REV. STAT. ANN. § 25-4-903 (West 1998).
6. Connecticut: CONN. GEN. STAT. ANN. § 10-204a (West 1996 & Supp. 1998).
7. Delaware: DEL. CODE ANN. tit. 14, § 131 (1997).
8. District of Columbia: D.C. CODE ANN. § 31-506 (1998).
9. Florida: FLA. STAT. ANN. § 232.032 (West 1998).
10. Georgia: GA. CODE ANN. § 20-2-771 (Harrison 1997).
11. Hawaii: HAW. REV. STAT. ANN. § 302A-1156 (Michie 1997).
12. Idaho: IDAHO CODE § 39-4802 (1997).
13. Illinois: 105 ILL. COMP. STAT. 5/27-8.1 (West 1993 & Supp. 1998).
14. Indiana: IND. CODE ANN. § 10-4-1-16 (West 1998).
15. Iowa: IOWA CODE ANN. § 140.13 (West 1998).
16. Kansas: KAN. STAT. ANN. § 72-5209 (1997).
17. Kentucky: KY. REV. STAT. ANN. § 214.034 (Michie 1997).
18. Louisiana: LA. REV. STAT. ANN. § 17.170 (West 1997).
19. Maine: ME. REV. STAT. ANN. tit. 20-A, § 6355 (West 1997).
20. Maryland: MD. CODE ANN., EDUC. § 7-403 (1997).
21. Massachusetts: MASS. GEN. LAWS. ANN. ch. 76, § 15 (West 1996).
22. Michigan: MICH. STAT. ANN. § 25.358(27) (Law. Co-op. 1998).
23. Minnesota: MINN. STAT. ANN. § 123.70 (West 1993).
24. Missouri: MO. ANN. STAT. § 167.181 (West 1991 & Supp. 1999).
25. Montana: MONT. CODE ANN. § 20-5-405 (1997).
26. Nevada: NEV. REV. STAT. § 392.437 (1996 & Supp. 1997).
27. New Hampshire: N.H. REV. STAT. ANN. § 141-C:20-c (1996).
28. New Jersey: N.J. STAT. ANN. § 26-1A-9.1 (West 1996).
29. New Mexico: N.M. STAT. ANN. § 24-5-3 (Michie 1998).
30. New York: N.Y. PUB. HEALTH LAW § 2164 (McKinney 1994 & Supp. 1999).
[844]  31. North Carolina: N.C. GEN. STAT. § 130A-152 (1997).
32. North Dakota: N.D. CENT. CODE § 23-07-17.1 (1997).
33. Ohio: OHIO REV. CODE ANN. § 3313.671 (Anderson 1998).
34. Oregon: OR. REV. STAT. § 433.267 (1997).
35. Pennsylvania: PA. STAT. ANN. tit 24, § 13-1303a (West 1998).
36. Rhode Island: R.I. GEN. LAWS § 16-38-2 (1997).
37. South Carolina: S.C. CODE ANN. § 44-29-180 (Law. Co-op. 1997).
38. South Dakota: S.D. CODIFIED LAWS § 13-28-7.1 (Michie 1998).
39. Tennessee: TENN. CODE ANN. § 37-10-402 (1997).
40. Texas: TEX. EDUC. CODE ANN. § 38.001 (West 1997).
41. Utah: UTAH CODE ANN. § 53A-11-302.5 (1998).
42. Vermont: VT. STAT. ANN. tit. 18, § 1122 (1997).
43. Virginia: VA. CODE § 22.1-271.2 (Michie 1998).
44. Washington: WASH. REV. CODE ANN. § 28A210.090 (West 1997).
45. Wisconsin: WIS. STAT. ANN. § 252.04 (West 1997).
46. Wyoming: WYO. STAT. ANN. § 21-4-309 (Michie 1997).



1. Alabama: ALA. CODE § 26-14-7.2 (1997).
2. California: CAL. PENAL CODE § 11165.2 (West 1998).
3. Colorado: COLO. REV. STAT. ANN. § 19-3-103 (West 1998).
4. Connecticut: CONN. GEN. STAT. ANN. § 17a-104 (West 1998).
5. Delaware: DEL. CODE ANN. tit. 31, § 403 (1997).
6. Florida: FLA. STAT. ANN. § 39.01 (West 1998).
7. Georgia: GA. REV. CODE ANN. § 19-7-5 (Harrison 1998).
8. Idaho: IDAHO CODE § 16-1602 (1997).
9. Iowa: IOWA CODE ANN. § 232.68 (West 1998).
10. Kansas: KAN. STAT. ANN. § 21-3608 (1997).
11. Kentucky: KY. REV. STAT. ANN. § 600.020 (Michie 1997).
12. Louisiana: LA. REV. STAT. ANN. § 2019(e)(4) (West 1997).
13. Maine: ME. REV. STAT. ANN. tit. 22, § 4010 (West 1997).
14. Michigan: MICH. STAT. ANN. § 722.634 (Lay. Co-op. 1998).
15. Mississippi: MISS. CODE ANN. § 43-21-105 (1998).
16. Missouri: MO. ANN. STAT. § 210.115.3 (West 1998).
17. Montana: MONT. CODE ANN. § 41-3-102 (1997).
18. New Hampshire: N.H. REV. STAT. ANN. § 169-C:3 (1997).
19. New Jersey: N.J. STAT. ANN. § 9:6-8.21 (West 1998).
20. New Mexico: N.M. STAT. ANN. § 32A-4-2 (Michie 1998).
21. North Dakota: N.D. CENT. CODE § 50-25.1-05.1 (1997).
22. Ohio: OHIO REV. CODE ANN. § 2919.22 (Anderson 1998).
23. Oklahoma: OKLA. STAT. tit. 10, § 7103 (1998).
24. Oregon: OR. REV. STAT. § 419B.OO5 (1997).
25. Pennsylvania: PA. STAT. ANN. tit. 23, § 6303 (West 1998).
26. Rhode Island: R.I. GEN. LAWS § 40-11-15 (1997).
27. South Carolina: S.C. CODE ANN. § 20-7-652 (Law. Co-op. 1998).
28. Tennessee: TENN. CODE ANN. § 39-15-402 (1998).
29. Utah: UTAH CODE ANN. § 76-5-109 (1998).
30. Vermont: VT. STAT. ANN. tit. 33, § 4912 (1997).
31. Virginia: VA. CODE § 63.1-248.2 (Michie 1998).
32. Washington: WASH. REV. CODE ANN. § 26.44.020 (West 1998).
33. West Virginia: W. VA. CODE § 61-8D-4 (1998).
34. Wisconsin: WIS. STAT. ANN. § 948.03 (West 1997).
35. Wyoming: WYO. STAT. ANN. § 14-3-202 (Michie 1998).

Professor Marci A. Hamilton, TESTIMONY TO THE SENATE COMMITTEE ON THE JUDICIARY S. 1248, The Religious Liberty Protection Act of 1998


1998 WL 354837

Federal Document Clearing House

Copyright (c) 1998 Federal Document Clearing House, Inc.


June 23, 1998



Religious Liberty




S. 1248, The Religious Liberty Protection Act of 1998


Marci A. Hamilton

Professor of Law

Benjamin N. Cardozo School of Law, Yeshiva University

55 Fifth Avenue

New York, NY 10003

(212) 790-0215

(212) 790-0205 (fax)


June 23, 1998


Thank you, Mr. Chairman and members of the Committee, for

inviting me to speak today on this important constitutional law

topic. I am a Professor of Law at Benjamin N. Cardozo School of

Law, Yeshiva University, where I specialize in constitutional

law. I was also the lead counsel for the City of Boerne, Texas in

the case that ultimately invalidated the Religious Freedom

Restoration Act (RFRA). See Boerne v. Flores, 117 S. Ct. 2157

(1997). I have devoted the last five years of my life to writing

about, lecturing on, and litigating the Religious Freedom

Restoration Act and similar religious liberty legislation in the

states. For the record, I am a religious believer.


As you know, the Boerne v. Flores decision unequivocally rejected

RFRA. Not a single member of the Supreme Court defended the law

in either the majority, the concurrences, or the dissents. The

Court’s decision was not a result of any hostility on the part of

the Court toward this body. That is evident in its calm,

evenhanded tone. Nor was it the result of mistaken understandings

of its own precedents. The decision was inevitable. Contrary to

Professor Laycock’s and the Congressional Research Service’s

confident assurances in the RFRA legislative record, RFRA was

plainly ultra vires.


I will not belabor RFRA’s faults here, but rather refer you to

the bibliography that follows this testimony.


Today I am here to tell you that I believe that RLPA violates the



That this bill, which is a slap in the face of the Framers and

the Constitution, is receiving a hearing indicates that what I

say today may not make much difference. If Congress wants to be

perceived as the savior of religious liberty and wants to defer

to the most powerful coalition of religions in this country’s

history, there is absolutely nothing that I can do about it.

Thus, I will not offer detailed critique of each of this bill’s

glaring constitutional errors. Instead, I will offer a summary of

those errors.


Then I will share with you the interests that will be hurt by

granting religion this unprecedented quantum of power against the

government.[1] I represent none of these interests, but I have

heard their stories in my travels around the country these five



RLPA’s Most Severe Constitutional Defects


[1] RLPA Violates the Separation of Powers. Like RFRA, RLPA is an

undisguised attempt to reverse the Supreme Court’s interpretation

of the Free Exercise Clause in Employment Division v. Smith, 494

U.S. 872 (1990), and to take over the Court’s core function of

interpreting the Constitution. See Secs. 2(a) and 3(a). For a

clear discussion explaining why this is beyond Congress’s power,

see Boerne v. Flores, 117 S. Ct. at 2172.


[2] RLPA Violates the Constitution’s Ratification Procedures.

Like RFRA, RLPA attempts to amend the Constitution by a majority

vote, bypassing Article V’s required ratification procedures in

direct violation of Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803). For a plain discussion in which the Court reasserts its

allegiance to Marbury, see Boerne v. Flores, 117 S. Ct. at 2168.


[1] Professor Douglas Laycock tilts at windmills when he attempts

to argue that the test instituted by RLPA (and RFRA), the

compelling interest/least restrictive means test, was the test

regularly employed in all free exercise cases before 1990. He

neglects to mention Turner v. Safley, 482 U.S. 78 (1987), which

makes explicit that strict scrutiny does not apply in the prison

context or any of other cases in which the Court demonstrated

great deference to government interests. See, e.g., Goldman v.

Weinberger, 475 U.S. 503 (1986); Bowen v. Roy, 476 U.S. 693

(1986). Whatever Professor Laycock’s interpretation of the

Supreme Court’s free exercise jurisprudence may be, the Supreme

Court itself made absolutely clear in Boerne v. Flores that the

least restrictive means test is “a requirement that was not used

in the pre-Smith jurisprudence RFRA purported to codify.”117

S.Ct. at 2171.


[3] RLPA Is an Assault on States’Rights. Despite its rote

recitation of language from cases addressing federalism issues,

see, e.g., Sec. 2(d) (“state policy not commandeered”), this bill

federalizes local land use law and (if good law) would eviscerate

one of the final stronghold’s of local government. It violates

the letter and the spirit of the modem Court’s emerging

structural constitutional jurisprudence. See Printz v. United

States, 117 S. Ct. 2365 (1997); United States v. Lopez, 514 U.S.

549 (1995); New York v. U.S., 505 U.S. 144 (1992). If good law,

RLPA’s micromanagement of local land use law would set the pace

for an expansive invasion of state and local government



If RLPA becomes law, it will haunt any representative who

attempts to climb onto the limited federal government platform.


[4] RLPA Fails to Satisfy the Enumerated Power Requirement. RLPA

is ultra vires. There is not a single statute that provides a

model for RLPA’s claim to be grounded in either the Spending

Clause or the Commerce Clause. Congress has not identified any

specific arena of spending or commerce.Rather, it has identified

all religious conduct as its target and attempted to cover as

much religious conduct as possible by casting a net over all

federal spending and commerce. See Hearings, H.R. 4019, The

Religious Liberty Protection Act, Subcommittee on the

Constitution, House Committee on the Judiciary (June 16, 1998).

Like RFRA, its obvious purpose is to displace the Supreme Court’s

interpretation of the Free Exercise Clause in as many fora as

possible. It is a transparent end-run around the Supreme Court’s

criticism of RFRA in Boerne v. Flores.


The specious argument that Congress may grant religion this

windfall under the Commerce Clause because religion generates

commerce attempts to transform the First Amendment, a limitation

on congressional power, into an enumerated power.


[5] RLPA Violates the Establishment Clause. RLPA privileges

religion over all other interests in the society. While the

Supreme Court indicated in Smith that tailored exemptions from

certain laws for particular religious practices might pass

muster, it has never given any indication that legislatures have

the power to privilege religion across-the-board in this way.

RFRA’s and RLPA’s defenders rely on Corporation of the Presiding

Bishop v. Amos, 483 U.S. 327 (1987), for the proposition that

government may enact exemptions en masse. This is a careless

reading of the case, which stands for the proposition that

religion may be exempted from a particular law (affecting

employment) if such an exemption is necessary to avoid excessive

entanglement between church and state. RLPA, like RFRA, creates,

rather than solves, entanglement problems. RLPA, which was

drafted by religion for the purpose of benefitting religion and

has the effect of privileging religion in a vast number of

scenarios, violates the Establishment Clause. For the Court’s

most recent explanation of the Establishment Clause, see Agostini

v. Felton, 117 S. Ct. 1997 (1997).


The following is a list of interests that will be affected

adversely if RLPA is adopted, because it elevates religion above

all other societal interests. As Oregon recently discovered when

a prosecutor attempted to prosecute a religious community for the

death of three children, particular exemptions from general laws

can have real consequences. This is a zero-sum game: by granting

religion expansive new power against generally applicable,

neutral laws, Congress inevitably subtracts from the liberty

accorded other societal interests.


Before blindly passing this law with its mandate to exempt

religion from general laws in an infinite number of scenarios,

Congress should know that it risks responsibility for harming the

following constituencies:


[1] Children in religions that advocate and practice abuse


[2] Women in religions that advocate male domination


[3] Children in religions that refuse medical treatment,

including immunizations


[4] Pediatricians, who have lobbied vigorously for mandatory



[5] The handicapped, women, minorities, and homosexuals, whose

interests are currently protected by anti-discrimination laws and

may well be trumped by religions exercising the compelling

interest/least restrictive means test


[6] Departments of correction and prison officials attempting to

ensure order in prisons populated by increasingly violent



[7] Artistic and historical preservation interests, including

whole communities that depend on historical districts for revenue

and jobs


[8] Neighborhoods attempting to enforce neutral rules regulating

congestion, building size, lot size, and on- and off-street



[9] School boards desperately attempting to ensure order and

safety in the public schools

[10] State, local, and municipal officials who will be forced to

bear the cost of accommodating every religious request (whether

from a mainstream religion or a cult) or bear the cost of

litigating refusals to do so Last, but not least, citizens who

will bear the extreme increase in litigation costs created by

these new rights coupled to an attorney’s fees provision (a

virtual invitation to sue)


In sum, RLPA is no better than RFRA. In fact, it is worse.

Congress has a duty to investigate its wide-ranging effects with

care before taking this plainly unconstitutional path.


For those who take comfort from the fact that RLPA is supported

by a wide cross-section of religions, I leave you with the words

of Framer Rufus King, one of the youngest members of the

Constitutional Convention but a Harvard graduate who was highly

respected on structural issues: “[I]f the clergy combine, they

will have their influence on government.”


Bibliography of works by Marci A. Hamilton addressing the

Religious Freedom Restoration Act and Boerne v. Flores:


The Religious Freedom Restoration Act Is Unconstitutional,

Period, 1 U.Penn. J. Constl. L.1 (1998).


City of Boerne v. Flores: A Landmarkfor Structural Analysis, 39

Wm. & Mary L. Rev. 699 (1998).


Religion’s Reach, Christian Century 644 (July 16-23, 1997).


The Constitution’s Pragmatic Balance of Power Between Church and

State, 2 Nexus, A Journal of Opinion 33 (1997).


The Religious Freedom Restoration Act: Letting the Fox into the

Henhouse Under Cover of Section Five of the Fourteenth Amendment,

16 Cardozo L. Rev. 357 (1994).


The Constitutional Rhetoric of Religion, U. Ark. Little Rock L.J.

(forthcoming 1998).



Professor of Law

Yeshiva University



Professor Marci A. Hamilton, TESTIMONY TO THE HOUSE COMMITTEE ON THE JUDICIARY’S SUBCOMMITTEE ON THE CONSTITUTION, H.R. 4019: The “Religious Liberty Protection Act of 1998”


H.R. 4019: The “Religious Liberty Protection Act of 1998”

Marci A. Hamilton
Professor of Law
Benjamin N. Cardozo School of Law, Yeshiva University
55 Fifth Avenue
New York, NY 10003
(212) 790-0215
(212) 790-0205 (fax)
June 16,1998

Thank you, Mr. Chairman, for inviting me to speak today on this
important constitutional law topic. I am a Professor of Law at
Benjamin N. Cardozo School of Law, Yeshiva University, where I
specialize in constitutional law. I was also the lead counsel for
the City of Boerne, Texas in the case that ultimately invalidated
the Religious Freedom Restoration Act (RFRA). See Boerne v.
Flores, 117S. Ct. 2157 (1997). I have devoted the last five years
of my life to writing about, lecturing on, and litigating the
Religious Freedom Restoration Act and similar religious liberty
legislation in the states. For the record, I am a religious

As you know, the Boerne v. Flores decision unequivocally rejected
RFRA. Not a single member of the Supreme Court defended the law
in either the majority, the concurrences, or the dissents. The
Court’s decision was not a. result of any hostility on the part
of the Court toward this body. That is evident in its calm,
evenhanded tone. Nor was it the result of mistaken understandings
of its own precedents. The decision was inevitable. Contrary to
Professor Laycock’s and the Congressional Research Service’s
confident assurances in the RFRA legislative record, RFRA was
plainly ultra vires.

I will not belabor RFRA’s faults here, but rather refer you to
the bibliography that follows this testimony. I also refer you to
my letter of November 11, 1997 to Rep. Jerrold Nadler, which is
attached, in which I explain the limited options open to Congress
to aid religion.

When I first read The Religious Liberty Protection Act of 1998, I
thought someone was playing a prank on me. If I had been
commissioned to write a law post-Boerne v. Flores that contains
multiple constitutional violations, I could not have done a
better job. There is no enumerated power that would support this
bill. Moreover, it violates a score of structural
constitutional principles.

That this bill, which is a slap in the face of the Framers and
the Constitution, is receiving a hearing indicates that what I
say today may not make much difference, If Congress wants to be
perceived as the savior of religious liberty and wants to defer
to the most powerful coalition of religions in this country’s
history, there is absolutely nothing that I can do about it.
Thus, I will not offer detailed critique of each of this bill’s
glaring constitutional errors. Instead, I will offer a summary of
those errors.

Then I will share with you the interests that will be hurt by
granting religion this unprecedented quantum of power against the
government. [1] I represent none of these interests, but I have
heard their stories in ray travels around the country these five

RLPA’s Most Severe Constitutional Defects

– RLPA Violates the Separation of Powers, Like RFRA, RLPA is an
undisguised attempt to reverse the Supreme Court’s interpretation
of the Free Exercise Clause in Employment Division v. Smith, 494
U.S. 872 (1990), and to take over the Court’s core function of
interpreting the Constitution. See Secs, 2(a) and 3(a). For a
clear discussion explaining why this is beyond Congress’s power,
see Boerne v. Flores, 117 S. CT, at 2172.

– RLPA Violates the Constitution’s Ratification Procedures. Like
RFRA, RLPA attempts to amend the Constitution by a majority vote,
bypassing Article V’s required ratification procedures in direct
violation of Marbury v. Madison, 5 U.S. (1 Crarich) 137 (1803).
For a plain discussion in which the Court reasserts its
allegiance to Marbury, see Boerne v. Flores, 117S.
Ct. at 2168.

[1] Professor Douglas Laycock tilts at windmills when he attempts
to argue that the test instituted by RLPA (and RFRA), the
compelling interest/least restrictive means test, was the test
regularly employed in all free exercise cases before 1990. He
neglects to mention Turner v. Safley, 482 U.S. 78 (1997), which
makes explicit that strict scrutiny does not apply in the prison
context or any of other cases in which the Court demonstrated
great deference to government interests. See, e.g., Goldman v.
Weinberger, 475 U.S. 503 (1986); Bowen v. Roy, 476 U.S. 693
(1986). Whatever Professor Laycock’s interpretation of the
Supreme Court’s free exercise jurisprudence may be, the Supreme
Court itself made absolutely clear in Boerne v. Flores that the
least restrictive means test is “a requirement that was not used
in the pre-Smith jurisprudence RFRA purported to codify,” 117S.
Ct. at 2171.

– RLPA Is an Assault on States’Rights. Despite its rote
recitation of language from cases discussing federalism issues,
see, e.g., Sec. 2(d) (“state policy not commandeered”), this bill
federalizes local land use law and (if good law) would eviscerate
this final stronghold of local government. Local land control is
one of the key elements of personal liberty, It violates the
letter and the spirit of the modem Court’s emerging structural
constitutional jurisprudence. See Printz v. United States, 117S.
Ct. 2365 (1997); United States v. Lopez, 514 U.S. 549 (1995); New
York v. US., 505 U.S. 144 (1992). If good law, RLPA’s
intervention in local land use law would set the pace for the
most expansive invasion of state and local government authority
in this nation’s history.

If RLPA becomes law, it will haunt any representative who
attempts to climb onto the limited -federal government platform.

– RLPA Fails to Satisfy the Enumerated Power Requirement. RLPA is
ultra vires. There is not a single statute that provides a model
for RLPA’s claim to be grounded in either the Spending Clause or
the Commerce Clause. Congress has not identified any specific
arena of spending or commerce. Rather, it has identified all
religious conduct as its target and attempted to cover as much
religious conduct as possible by casting a net over all federal
spending and commerce. Like RFRA, its obvious purpose is to
displace the Supreme Court’s interpretation of the Free Exercise
Clause in as many fora as possible. It is a transparent end-run
around the Supreme Court’s criticism of RFRA in Boerne v. Flores.

– RLPA Violates the Establishment Clause. RLPA privileges
religion over all other interests in the society. While the
Supreme Court indicated in Smith that tailored exemptions from
certain laws for particular religious practices might pass
muster, it has never given any indication that legislatures have
the power to privilege religion across-the-board in this way.

RFRA’s and RLPA’s defenders rely on Corporation of the Presiding
Bishop v. Amos, 483 U.S. 327 (1987), for the proposition that
government may enact exemptions en Masse. This is a careless
reading of the case, which stands for the proposition that
religion may be exempted from a particular law (affecting
employment) if such an exemption is necessary to avoid excessive
entanglement between church and state. RLPA, like RFRA, creates,
rather than solves, entanglement problems. RLPA, which was
drafted by religion for the purpose of benefitting religion and
has the effect of privileging religion in a vast number of
scenarios, violates the Establishment Clause. For the Court’s
most recent explanation of the Establishment Clause, see Agostini
v. Felton, 117S. Ct. 1997 (1997).

The following is a list of interests that will be affected
adversely if RLPA is adopted, because it elevates religion above
other societal interests. As Oregon recently discovered when a
prosecutor attempted to prosecute a religious community for the
death of three children, particular exemptions from general laws
can have real consequences. Before blindly passing this law with
its mandate to exempt religion from general laws in an infinite
number of scenarios, Congress should know that it risks
responsibility for harming the following constituencies:

1)Children in religions that advocate and practice abuse
2) Women in religions that advocate male domination
3) Children in religions that refuse medical treatment, including
4) Pediatricians, who have lobbied vigorously for mandatory
5)The handicapped, women, minorities, and homosexuals, whose
interests are currently protected by antidiscrimination laws and
may well be trumped by religions exercising the compelling
interest/least restrictive
means test

6)Departments of correction and prison officials attempting to
ensure order in prisons populated by increasingly violent

7) Artistic and historical preservation interests, including
whole communities that depend on historical districts for revenue
and jobs

8) Neighborhoods attempting to enforce neutral rules regulating
congestion, building size, lot size, and on- and off-street

9) School boards desperately attempting to ensure order and
safety in the public schools

10) State, local, and municipal officials who will be forced to
bear the cost of accommodating every religious -request (whether
from a mainstream religion or a cult) or bear the cost of
litigating refusals to do so Last, but not least, citizens who
will bear the extreme increase in litigation costs created by
these new rights coupled to an attorney’s fees provision (a
virtual invitation to sue)

In sum, RLPA is no better than RFRA. In fact, it is worse.
Congress has a duty to investigate its wide-ranging effects with
care before taking this plainly unconstitutional path.

For those who take comfort from the fact that RLPA is supported
by a wide cross-section of religions, I leave you with the words
of Framer Rufus King, one of the youngest members of the
Constitutional Convention but a Harvard graduate who was highly
respected on structural issues: “[i]f the clergy combine, they
will have their influence on government.”

Professor, Benjamin N. Cardozo School of Law
Yeshiva University