It seems clear that any deliberate effort by government to impose religious orthodoxy will be held unconstitutional per se. A religiously motivated restriction on disfavored religious practices will be held to violate the Free Exercise Clause. Similarly, a religiously motivated attempt to promote or subsidize favored religious practices will be held to violate the Establishment Clause. These complimentary restrictions are now so ingrained in our political culture that the legislatures rarely transgress them.
The problem that has bedeviled the Supreme Court for many years is that government regulatory schemes and benefit programs designed to serve purely nonreligious objectives inevitably impact on religion inadvertently. In applying the Free Exercise Clause to cases of inadvertent interference, the Court adopted one fundamental doctrinal construct, promptly overruled that construct, adopted a nearly opposite principle, and then years later resurrected the original approach. In applying the Establishment Clause, the Court consistently articulated the same principle or "test" over many years, but produced a series of apparently inconsistent results. Most recently, the Court has consciously avoided articulating any standard or "test" in finding that a governmental action violates the Establishment Clause.
The task confronting the Court is to develop a coherent jurisprudence to deal with the frequent inadvertent collisions between governmental actions and the absolute prohibitions of the two religion clauses. Unfortunately, the Supreme Court appears unaware that this is precisely the same systemic jurisprudential question that is presented when similar regulations inadvertently affect the interests protected by the Free Speech Clause.
It is the central thesis of this Article that the conceptual methodology developed by the Court for dealing with inadvertence in the free speech context is the only sensible approach to the inadvertence problem in the context of any of the absolutely worded prohibitions of the First Amendment, including the two religion clauses. This Article concludes with an argument that those current threads in religion clause jurisprudence that appear to parallel the free speech methodology should be refined and reinforced while those that diverge from the free speech methodology should be abandoned.
Thomas R. McCoy,
A Coherent Methodology For First Amendment Speech and Religion Clause Cases,
48 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol48/iss5/2