Contradictory Demands on the First Amendment Religion Clauses: Having it Both Ways

Abstract

During the decade of the sixties, mainline religion was on the defensive on numerous fronts, among them constitutional interpretation. Typical of this era were assaults on traditional church state associations, such as the successful attacks on prayers and Bible readings in public schools as violations of the Establishment Clause.1 Similarly, the Free Exercise Clause was expanded to be more solicitous of the interests of religious minorities; for example, U.S. Selective Service statutes were interpreted to accord conscientious objector status to persons holding nontheistic religious or philosophical beliefs.2 By the mid-1970s, except for the perpetually thorny and doctrinally uninspiring area of aid to parochial schools,3 it seemed that nothing much more remained to be said about the separation of church and state. The 1980s have reversed that trend. Increasingly, traditional religion has been on the offensive, challenging the secularization which emerged in the previous decade, and demanding new kinds of accommodations for expanded religious activities. In general, the new demands are for a broader understanding of the Free Exercise Clause in order to free religious institutions and religiously motivated activities from burdensome government regulation, and for a more constricted interpretation of the Establishment Clause in order to permit increased