Religion and the Secular State

Abstract

The first amendment came into effect more than two hundred years ago. Changing emphases at different periods of time means that the flow of cases varies and the justices have different assumptions not only from each other but also from their predecessors. For a time, few cases were brought under either religion clause, making Reynolds (1878), a free exercise claim and Everson (1947), an establishment claim, stand out. Everson, however, ushered in a rich profusion of cases which has only recently exhausted itself with Zelman (2002) (the establishment clause does not prevent parents from using school vouchers at a religious school), and Locke v. Davey (2004) (the state constitution may deny religious claimants equal protection in apply ing for school funds). While the free exercise clause thus does not apply to the states, the establishment clause does! Nevertheless, it, along with the free exercise, offers many protections for religious denomina tions and governments, and not least to individuals making claims of conscience. Today we are in a secular age. Thus in 1990, Justice Scalia effectively de-constitutionalized claims under the free exercise clause of the first amendment in Smith. Recently, in his concurrence in Pleasant Grove, Justice Scalia urges the same treatment for claims under the establishment clause. De facto de-constitutionalization of both clauses perhaps can be read to suggest that religion is less rele vant to American society today. At first members of minority religions lose their protected status under the first amendment. As proportion ally fewer people are aligned with mainstream religions, more and more people will stand alone and unprotected by the first amendment.