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As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide a summary account of how the Court, with some "help" from Congress, has arrived at the present juncture, and I comment on possible lines of development.

For two decades up to 1990, adjudication under the Religion Clauses exhibited a remarkable, though fragile, stability. The Supreme Court had arrived at basic tests for both the Free Exercise and the Establishment Clauses. For free exercise cases, the basic standard was the compelling interest test: a law interfering with someone's exercise of religion could be applied against the person only if it served a compelling government interest that could not be achieved by a less restrictive means. For establishment cases, the basic standard was the threefold test of Lemon v Kurtzman:' a law was valid only if it was backed by a secular purpose, did not have a primary effect that promoted or inhibited religion, and did not unduly entangle the government with religion. For cases involving outright religious classifications, which give rise to both free exercise and establishment objections, the Court used the compelling interest test.

Those who possessed some familiarity with the Court's decisions realized that any statement of applicable tests obscured troubling complexities.


Law | Religion Law

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