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Among the most vexing questions in the law of the religion clauses is when a legal measure that might otherwise be justified as an accommodation to free exercise is instead a forbidden establishment of religion. In a book about free exercise, I have provided some idea just how complex this question can be. I now tackle it head on. Scholars have fairly observed that the Supreme Court has given us no theory, or no tenable theory, for drawing the line between permissible accommodation and impermissible establishment. We will look at what the Court has said and done, as well as the writings of some scholars, to see whether we can discern bases in the Court's decisions for distinguishing accommodation from establishment. (I also mention scholarly proposals that deviate more sharply from the Court's approach; those are analyzed elsewhere.)

It helps initially to set out some premises on which the remainder of this essay rests and to note discrete subquestions. The premises are these: 1) A great many accommodations to religion are exemptions from rules that are generally applicable, but accommodations may take the form of assistance that is not an exemption, as exemplified by chaplains in the military and in prisons; 2) Accommodations may be constitutionally required or within legislative (and administrative) discretion. This essay concentrates on accommodations legislators choose to grant; 3) Whatever one thinks about the implications of its precise language, the threefold Lemon test (a law is valid only if it has a secular purpose, does not have the primary effect of promoting or inhibiting religion, and does not unduly entangle the government with religion) has never been regarded by most justices as barring all accommodations to religion. Either they have considered the purpose and effect of relieving burdens on religious exercise as one kind of secular purpose and effect (the majority position in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos) or they have considered the purpose and effect as being a permissible religious purpose and effect (Justice Sandra Day O'Connor's position in Amos). Concerns about whether an accommodation is unconstitutional may be lessened when it is formulated in general terms and not limited to religious claims; but the Court has never indicated that all accommodations made explicitly to religious exercise are invalid. Indeed, in 2005, the court unanimously sustained federal legislation requiring accommodations to religious claims within prisons, and in 2006 it upheld the application of the Religious Freedom Restoration Act to protect the importation of an hallucinogenic tea for religious worship. Given that justices who reject the Lemon approach have joined these opinions, the cases clearly indicate that the permissibility of some accommodations in terms of religion does not depend on the continuing status of the Lemon test; 4) Accommodations may not involve favoritism of one religious group over another similarly situated religious group; 5) Accommodations may not consist of conferrals of direct political authority upon religious groups; 6) Efforts to aid or promote religion that do not relieve any identifiable burden-sponsored oral prayer in public schools is an example — do not count as accommodations. A state may not single out religious groups for financial grants and call it accommodation; and 7) An "establishment" concern may be generated by flawed legislative aspirations, by burdens imposed on those who bear the costs of accommodation, or by a failure to privilege non-religious claims analogous to the favored religious claims. If the only problem is the failure to treat analogous claims similarly, judicial correctives might take the form of extending the privileges. In other instances, the "accommodation" is treated as invalid.


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