The Dying Breath of Seperationism: The Rise of Religious Accommodationism and its Implications in the United States

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“The laws of the city of St. Louis now actively protect and promote the killing of unborn children,” claimed Archbishop Robert Carlson in response to a bill that would protect womens reproductive health by adding it to the cities anti-discrimination ordinance. This bill was passed January 2017 in St. Louis Missouri. Ward Alderman Megan Green, the sponsor of the bill, responded to the criticism stating: “We are down here acting as a government, not as a religious instrument.” Thomas Buckley, representing the Archdiocese, contended that the bill, “[P]romotes religious discrimination against those who don’t want to be complicit in the evils of abortion.” The bill, in effect, is an attempt to protect women from experiencing discrimination at the local level since lawmakers at a state level—particularly in deeply conservative Missouri—are unlikely to offer housing and workplace protections to women dealing with reproductive health, according to the St. Louis Post Dispatch. This is one of many examples of conflict brought from the the interpretation and understanding of the First Amendments religious clause. 

On one hand, you have the Megan Green who believes it necessary to push legislation that files reproductive health into anti-discrimination ordnance as a means of protection for vulnerable women, yet on the other hand you have the religious community, as represented by the Archbishop Robert Carlson and legal counsel Thomas Buckley, who believe that not allowing a business or a landlord to choose who they hire or rent to—particularly if the individual has had an abortion or intends to—is in itself a form of religious discrimination against those who believe abortion to be evil based on their personal faith. This ongoing discussion on the interpretations of protection regarding the religious clauses in the First Amendment aren’t a recent phenomenon, likewise it is unlikely that they will ever end. Instead it is up to the courts to trace intent and precedence of the framers to hopefully find the proper interpretation of the First Amendment.

Here we will look at the foundation of First Amendment as well as its jurisprudence—(particularly regarding the Establishment” and “Free Exercise” clauses), a brief history of how the jurisprudence has been applied shifting from separationist to accommodationist, and the implications of this paradigmatic shift on public and private spheres.   

 

In the Beginning: First Amendment and Jurisprudence

The debate over the First Amendment religious clauses jurisprudence is one that can trace its lineage back to the the framers. Those in dialogue with the jurisprudence generally fall into two camps—separationist or accommodationists. The general makeup of the First Amendment religious clauses are of both the Establishment clause: “Congress shall make no law respecting an establishment of religion…;” and the Free Exercise clause: “…[O]r prohibiting the free exercise thereof….” When it comes to the jurisprudence of the amendment some divide their camps between the two clauses whereas others remain in one camp for both.

Jefferson was stridently in the separationist camp both in regards to the Establishment and Free Exercise clauses. This is noted in his famous 1802 Letter to the Danbury Baptists wherein he compares the the two clauses to, “[B]uilding a wall of separation between Church & State.” Likewise, Jefferson’s Bill for Establishing Religious Freedom also reflects the stridency of the separationist position he takes, making multiple arguments in both support of the Establishment and Free Exercise clauses as being necessarily free the state. Madison, on the other hand, could be seen as separationist regarding the Establishment clause and accommodationist regarding the Free Exercise clause. He argues that a man must be considered a subject of, “[T]he Governor of the Universe” before he can be considered a member of Civil Society—thus establishing the necessity for religion in civil society (arguably an accommodationist approach to the the Establishment clause)—and, “[In] matters of Religion, no mans’s right is abridged by the institution of Civil Society,” an argument that when it comes to religious practice that civil society shall not interfere. Unfortunately for Americans, the necessarily vague wording of the religious clauses as well as the historical contention over over their meaning has cause the the debate over their interpretations to still persist today with the supreme court consistently in flux regarding their interpretation. 

Following the Shift to Accommodationist Jurisprudence

The First Amendment has had a history of contention between those that see it covering religion broad in scope (separationist) or narrow in scope (accommodationist). However, in recent years—as courts change and society shifts—a strong push from strident separationst to accommodationist jurisprudence has taken place. In this section, observing a number of pivotal supreme court cases regarding the religious clauses—first the adjudication of the Free Exercise clause and then the Establishment Clause from the mid 20th century until today—will paint a picture of the detailing the shift from separationist towards accommodationist rulings.

Adjudicating Free Exercise

While there has been numerous rulings on the Free Exercise clause before Sherbert v. Verner in 1963—from a 1793 case pertaining to Jews being subpoenaed on the Sabbath to an 1813 case determining if Roman Catholic priests must divulge confessional information—this particular case in modern Supreme Court history is arguably the beginning of the shift from separationist to accommodationist ruling. In Sherbert, the supreme court held that the state must:  “[E]xcuse a Seventh-Day Adventist from the requirement of being available for work on Saturday as a condition of eligibility for unemployment compensation.” Furthermore, the court explained that: “[T]he requirement of availability for Saturday work was equivalent to imposing a 'fine' for the applicant's religious practice. Where a law burdens the exercise of a religious tenet in this way, the government is required to show that it serves a compelling governmental interest.”Sherbert set the precedent for what would, in the future be known as the “Sherbert Test.” According to legal scholar, Michael W McConnell: “The Sherbert decision created the potential for challenges by religious groups and individual believers to a wide range of laws.” The decision of Sherbert was pivotal in determining rulings for cases such as Wisconsin v. Yoder where the state ruled that neither Old Oder Amish nor Conservative Amish Mennonite Churches must follow the law that mandates children of the state to continue their education after sixteen years of age. 

The Sherbert test didn’t stay the standard forever. In the 1990’s rulings shifted back towards separationist under the decision of Employment Division v. Smith. In this case the Court ruled that, “[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” This ruling sparked a political backlash in which congress passed the Religious Freedom Restoration Act of 1993 which was signed into law by Bill Clinton. The RFRA was meant to reinstate the rulings of Sherbert v. Verner as well as Wisconsin v. Yoder, such that, “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” meaning the government cannot discriminate against a persons Free Exercise of their religious practice. However, it wasn’t long before the courts rebutted the law finding it unconstitutional; four years later, in City of Boerne v. Flores, the courts held that the RFRA, “[E]xceeds Congress' power.” But, even despite City of Boerne the supreme court has been found upholding the RFRA. A recent example of this is in Burwell v. Hobby Lobby. In Hobby Lobby, the court held that, “[A]s applied to closely held corporations, the HHS regulations imposing the contraceptive mandate violate RFRA.” In other words, because of previous rulings that set a precedent for corporate personhood (particularly Citizens United v. Federal Election Commission), Hobby Lobby —a representation of its highly religious owners—is protected from having to provide its employees with contraception because its owners believe life begins at conception and thus contraception is in violation with their devout beliefs. This abridged history of the adjudication of the Free Exercise Clause show how quickly the courts can shift their interpretation—from an accommodationist standard (Sherbert), to a stringent separationist standard (Smith), back to an accommodationist standard (RFRA), and finally to a mixture of the two (City of Boerne) but leaning more on an accommodationist standard (Hobby Lobby). It seems as if the Jeffersonian “wall of separation” has begun to crumble as the lines between the Free Exercise Clause have begun to blur. Unfortunately, the same can be said about the adjudication of the Establishment Clause.

Adjudicating Establishment

Much like the rulings of the Free Exercise clause, the establishment clause has also seen a shift from strident separationist to accommodationist. This has become particularly nasty in regards to such incidents as prayer conducted by public officials to the Ten Commandments displayed prominently on government property (McCreary County v ACLU)

Much like the ruling of Sherbert v. Verner regarding the Free Exercise Clause, the lineage of modern rulings regarding the establishment clause can be traced back to the 1947 ruling of Everson v. Board of Education. In Everson, the court held that tax dollars could not be paid out to private religious schools; Justice Black wrote, “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” Clearly, on one hand a separationist ruling. However, in a decision that arguably can still be felt today, Justice black wrote in the following paragraph: “New Jersey cannot hamper its citizens in the free exercise of their own religion. …[I]t cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” These two rulings, much like the nature of the religious clauses are inherently at odds with each other, and this can be seen time and time again.

Following the Everson, Lemon v Kurtzman, in 1971, offered a glimmer of hope that courts would be taking a principled stance in up holding a strict separationist stance regarding the Establishment cause. In Lemon, a Rhode Island law was allowing state tax dollars to pay teachers salaries at private schools as long as they only taught secular courses even if the institution was not a secular one. The dispute was, “[O]ver the constitutionality of the Act,” and,  “alleged that the church-affiliated schools are controlled by religious organizations, [which] have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose.” The court held that the laws were, indeed, in violation of the Establishment clause as, “the cumulative impact of the entire relationship arising under the statutes involves excessive entanglement between government and religion.”  This ruling seemed to identify, perhaps, a shifting of a paradigm back to separationist interpretation, but unfortunately that wasn’t the case.

Another blow for separationists came in 2005, after the Court ruled in favor of the separationist position in McCreary County v ACLU—a separationist ruling—they then ruled in favor of the accommodationists that same day in Van Orden v. Perry. In McCreary County the courts ruled that it is unconstitutional to have the 10 Commandments prominently displayed in the court house. But, in Van Orden, the courts ruled that it was fine that a “6-foot-high monolith inscribed with the Ten Commandment” could sit among the other historical markers and monuments surrounding the Texas State Capitol, because it was a gift by the Eagles.

By tracing the court rulings it is evident that the courts in their rulings are trending away from the separationist position and towards an accommodationist position since the mid 20th century. Such precedents will likely affect future rulings particularly with the erosion of the Smith rule and the indecisive rule of Justice Black on Everson.

 

The Separation Dilution: Implications of Accommodationist Jurisprudence

The recent accommodationist rulings as well as the passing of the RFRA are evidence of a shifting from a Jeffersonian “Great Wall” separationist paradigm and towards an accommodationist paradigm. These rulings set a dangerous precedent regarding how we think and process the religious clauses in the First Amendment, and can potentially have serious ramifications both in the public and private sphere.

Take, for instance, the recent 2017 ruling of Trinity Lutheran Church of Columbia, Inc. v. Comer. This case is a prime example of accommodationism run amuck. In the case, Missouri had a state law that no state funds were allowed to go to religious organizations regardless of that they were for. The state did this so they would not favor one church over another. The Church claimed they were being discriminated against, and that such a law was in violation of the Free Exercise clause. The ruling held that, “The Department’s policy violated the rights of Trinity Lutheran under the Free Exercise Clause of the First Amendment by denying the Church an otherwise available public benefit on account of its religious status.” If the courts ruled more decisively—both in regard to corporate personhood (a church isn’t an individual), as well as in Emerson (distinguishing a religious person as different from a religious institution)—this case may have turned out differently. But, such precedents have future ramifications. Justice Sotomayor and Justice Ginsburg both recognize this and speak to this in their dissenting opinion: 

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

They are right. There has been a profound shift from Jeffersons “Great Wall” to diluting the barrier by carving chunks out of the constitution to accommodate religion. But, the examples don’t just exist in the public sector, but in the private sector too.

Returning to the St. Louis ordinance discussed in the introduction, it should be clear how dangerous accommodationist precedents can be, particularly impacted communities that find themselves at odds with religion and religious practices. While an individual has the right to worship in the way they see fit, they such worship shouldn't be transferable to business or renting property to tenets—particularly if it will involve discrimination. Unfortunately, however, with the unabashed accommodationist trend observable in the courts rulings, we are likely to see a court unwilling to take a position that could be possibly seen as infringing on a religions Free Exercise. 

 

Final Thoughts

The framers gifted their descendants a time bomb—an irreconcilable set of clauses that often find themselves in contradiction with each other. This is particularly problematic when considering how how important personal faith is to many people, as well as the lengths to which people will go to protect their religion from any possible infringement or appearance of infringement. Thus, when adjudicating the two clauses the court should be extra cautious to not give an inch of leeway that could potentially begin the unraveling of the very delicate thread that is the First Amendment religious clause. By tracing the history of the Supreme Court rulings it can be easy to get discouraged and to think that perhaps it is too late—that too much leeway has already been given to the religious institutions. This is a wrong way to look at it. Instead, a silver-lining can, potentially be considered when thinking about the previous rulings. 

Maureen O. Manion argues in her essay, “The Politics of Accommodation,” that, “[t]he Constitution is what the Court says it is…the Court is not the politically aloof entity it would have as its public reputation.” Perhaps it is Machiavellian to think of the SCOTUS in this way, but if it can present an silver-lining, why not? It seems, from tracing the history of the rulings that, while precedent plays an important role, it is not the wholly the deciding factor. It seem like slithering beneath the surface of many of the rulings is the cultural zeitgeist tugging at the courts conscious. Perhaps, in time, we will see the courts change and a paradigmatic return to separationism.

 

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This essay was written for Columbia Universities "Introduction to Human Rights" course summer 2017, under the direction of Dr. Joseph Chuman.