Are Two Clauses Really Better Than One? Rethinking the Religion Clause(s), 80 U. Pitt. L. Rev. 1 (2018)
The First Amendment begins with two references to the relationship between government and religion. The prohibition on establishment of religion and the guarantee of free exercise of religion, despite their obvious interaction, are generally regarded as separate clauses, and analyzed under tests developed under one or the other. The current state of Establishment Clause doctrine and Free Exercise doctrine is sharply contested and by no means clear. Supreme Court justices will usually classify a religious freedom case as either presenting non-establishment or free exercise issues. Having done so, they will apply the test framed for that clause. But does that lead to the best and most defensible outcome? Might it be better to recognize that what we regard as separate clauses are, rather obviously, two aspects of a single right of religious freedom, and apply a single test that explicitly considers both values? The Canadian Charter of Rights and Freedoms, the closest analog in the Canadian Constitution to the American Bill of Rights, makes no reference to a non-establishment principle. Yet, in their application of the right to religious freedom, Canadian Courts have shown a sensitivity to non-establishment values that seems to equal, and occasionally exceed, that of the Supreme Court of the United States. This Article will explore the possibility that abandoning the notion that a religious freedom case is either an Establishment Clause or a Free Exercise case; instead they are often, if not always, both, and applying a single test, might lead to better outcomes. Part I will explore the recent Supreme Court case of Trinity Lutheran v. Comer and the way many justices insist on privileging one clause over the other, even to the extent of dismissing the other as insignificant in the case. Part II will examine the Supreme Court's 2015 decision in Town of Greece and contrast it with the contemporaneous Supreme Court of Canada decision in City of Sanguenay. Each case presented a similar question of the permissibility of local government bodies opening their sessions with public prayer. The cases reach sharply different conclusions, with Canada weighing non-establishment values more strongly without an express Establishment Clause than the Supreme Court of the United States. Part III will give a very brief history of how each constitutional system developed its own approach to the relationship between government and religion. Finally, Part IV will suggest a single test for religious freedom cases, whether they initially seem to invoke one or both currently separate clauses. This test will largely track the proportionality test used by Canadian (and other western) courts in individual rights cases.
Donald L. Beschle, Are Two Clauses Really Better Than One? Rethinking the Religion Clause(s), 80 U. Pitt. L. Rev. 1 (2018)