Washington University Journal of Law and Policy
A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency-well, apparent consistency- to the doctrine. I say "apparent consistency" because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court's religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of a more general category of benefits, or burdens religion as part of a more general category of burdens, neither clause is violated. Thus, religion clause doctrine seemingly fits together nicely, tracking a more general development in equality jurisprudence. However, there are some outlier cases in which the Rehnquist Court upheld special benefits for or special burdens on religion. These outlier cases are a window into a deeper inconsistency in religion clause doctrine. The outlier cases-and a proper understanding of why and when the Court views religion as foregrounded, rather than backgrounded, in Establishment Clause cases-remind us of the ways in which religion is distinctive. That distinctiveness is not properly valued by a formal doctrine that matches general benefits (valid) against general burdens (valid), and special benefits (invalid) against special burdens (invalid). What we take away from religion by the cases that invalidate religion-favoring governmental action is not offset by those that invalidate religion- disfavoring governmental action. We need a broader conception of free exercise to compensate for the ways in which the doctrine (properly, in my judgment) treats religion as distinctive under the Establishment Clause.
Abner S. Greene,
Apparent Consistency of Religion Clause Doctrine, The The Rehnquist Court and the First Amendment, 21 Wash. U. J.L. & Pol'y 225
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/388