Hastings Law Journal


Calvin Massey


Inherent in the two Religion Clauses is the possibility of conflict: some accommodations of religion in the name of free exercise may amount to forbidden establishments and some limits on religious accommodation in the name of avoiding prohibited establishments may impermissibly interfere with the free exercise of religion. Judicial mediation of the tension between the Establishment Clause and the Free Exercise Clause resolves into one of four patterns, each characterized by the degree of deference courts display toward the legislative choices of accommodation of religion. Courts may be deferential to legislative choices that arguably inhibit free exercise and foster religion; they may defer to inhibitions of free exercise but not promotions of religion; they may defer to religious promotion but not religious inhibition; or they may reject much deference to either prong.

The present Supreme Court has adopted a progressively more deferential approach to legislative choices about both inhibition and accommodation. This is partly the product of political and cultural changes over the past century, but has also been influenced by intellectual trends, particularly post-modern skepticism about the ability to determine objective truth. If nobody can know the truth, it becomes difficult to deny the claims of religious believers. Religious pluralism, while not the result of postmodem skepticism, has been freed to assert its claims in the agnostic-as-to-truth milieu of post-modern culture. This has pressured governments to avoid accommodating these limitless expressions of faith while at the same time trying to acknowledge this vast diversity of belief, and has influenced judicial deference to these legislative choices.

The result of this phenomenon is to encourage a political marketplace of religion, in which religious and secular actors compete in a political marketplace to obtain accommodations to or limitations upon religion. This is likely to promote greater proselytization, increasing irrelevance of the Lemon test, increased emphasis upon non-discrimination between sects by governments, and a heightened focus on legislative purpose.

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