New article: When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis

SSRN has posted a draft of a new article by Prof. Carl H. Esbeck, a former Center director and current professor at the University of Missouri School of Law. The article is entitled When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis.

This article is part of a symposium The Religion Clauses in the 21st Century (April 12-13, 2007) sponsored by the American Constitution Society and the West Virginia University College of Law. The specific panel was on "Accommodation of Religion" and also featured Prof. Kent Greenawalt, whom Esbeck gently critiques in this article. Symposium articles will be published in Volume 110 of the West Virginia Law Review, fall 2007.

From the introduction:

From time to time I find myself using to good effect that proverbial question, “Is the glass half full or half empty?” That inquiry has its parallel in the subject before us. Asking “When may the government accommodate religion?” is the glass-half-full way of posing the question. Whereas asking “When is an accommodation of religion a violation of the Establishment Clause?” is the glass-half-empty means of framing the same question. In a modern, complex republic like ours, discretionary accommodations for the many and diverse religious beliefs that dot the land ought to be regarded as widely permitted except for a limited range of cases that are disallowed by the Establishment Clause. This is because the Establishment Clause is ultimately about freedom for religious individuals and the religious organizations they form, and thus the clause’s predisposition is rightly weighted toward what is permitted. As will appear below, the United States Supreme Court has indeed approached its modern cases as if the glass is half full, and thus we can expect to find that most legislative accommodations for religion will be upheld as constitutional.

Part I of this article brings to bear those foundational principles applicable to the question of religious accommodations that flow from the nature of the original Constitution of 1789, the Bill of Rights, and the text of the First Amendment. Then Part II identifies Black Letter Rules concerning discretionary religious accommodations, rules that are either derived from the foregoing principles or can be teased out of the case law of the Supreme Court. With only one exception, I am not a critic of the end result (if not always the rationale) of the work of the modern Supreme Court in this area of its Establishment Clause jurisprudence. Finally, Part III applies the principles from Part I and the rules identified in Part II to the Court’s “hard cases” in a manner that makes the law fairly predictable, as well as responds to Professor Kent Greenawalt’s article which is part of this symposium.

Download the rest of the article.