According to Justice Powell, the first amendment religion clauses are the source of "some of the most perplexing questions"that the Supreme Court confronts. In a long and rapidly expanding line of religion clause cases the Court has struggled, with a conspicuous lack of success, to articulate principles of broad applicability. The Court's efforts to date have resulted in a jumble of tests, standards, and theoretical approaches from which predicting the outcome in future cases is very difficult.
The conceptual problems that have frustrated the Court's attempts at doctrinal development center in two broad areas: first,the meaning and effect of the establishment clause and second, the relationship between the establishment clause and the free exercise clause. In a third area, the meaning and effect of the free exercise clause, the Court has had somewhat less trouble articulating a doctrinal approach, but even here the Court has not applied the doctrine consistently and has not reached entirely predictable results.
Perhaps the most telling measure of the Court's doctrinal frustration in the religion clause area is the extent to which it recently has attempted to elevate its conspicuous lack of doctrinal consistency into an accepted methodology for decision making. Chief Justice Burger summarized current thinking on the relationship between the two religion clauses by noting that there is "internal tension in the First Amendment between the Establishment Clause and the Free Exercise Clause." Finding a clearer acknowledgement of the Court's failure to articulate a unifying theory underlying the two clauses would be difficult. Concerning the meaning and effect of the establishment clause, Chief Justice Burger has observed with apparent approval (or at least resignation) that the Court has been unwilling to tie establishment clause analysis to a single test. With the same apparent approval, Justice White has noted that "our decisions have tended to avoid categorical imperatives and absolutist approaches .... This course sacrifices clarity and predictability for flexibility .. .., Describing the same phenomenon in another case, Justice O'Connor concluded that"[e]very government practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." In effect, the Court seems to have accepted the inevitability of an ad hoc approach with a final result in any case possible only after Supreme Court review...
The thesis of this Article is that such a single overriding objective can be identified and articulated. This objective reflects the basic purpose of those who authored and adopted the religion clauses and, to a remarkable degree, harmonizes the Court's apparently disparate results in religion clause cases. The Court's conscious acceptance of the unifying theory proposed in this Article would provide a satisfying explanation for a large number of results arrived at by intuition in the past and would provide a theoretical basis from which to predict results in future cases.
Thomas R. McCoy and Gary A. Kurtz,
A Unifying Theory for the Religion Clauses of the First Amendment,
39 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol39/iss2/2