Separation of Church and State, Neutrality and Religious Freedom in American Constitutional Law

Religious freedom is a favored value under the United States Constitution. The Constitution provides two-fold protection to religious freedom by means of the Establishment Clause and the Free Exercise Clause. The Establishment Clause protects against the “establishment” of an official church by the government and against governmental action “establishing religion,” while the Free Exercise clause is a textual guarantee of peoples’ right to practice their religion and to hold and act on religious beliefs, free from governmental interference. The Establishment Clause would appear to an outside observer as strongly endorsing the concept of separation of church and state, and the Supreme Court has sometimes referred to the Establishment Clause as creating a “wall of separation” between church and state. However, the concept of separation of church and state has not in theory or practice guided the Court’s Establishment Clause jurisprudence. To the contrary, the Court has interpreted the Establishment Clause not as requiring separation of church and state in the sense that the government may not constitutionally become involved with religion, but as only requiring that the government must maintain a course of complete official neutrality toward religion. This means that the government may not favor one religion over another religion and may not favor religious belief over non-religious belief. But as a constitutional matter, the government may become involved with religion in a number of ways so long as it maintains a course of complete official neutrality toward religion. It is the thesis of this paper that the guiding force governing the Supreme Court’s Establishment Clause jurisprudence has been a concern with protecting religious freedom, and that the Court will only find an Establishment Clause violation when the law or governmental action in question has the potential for interfering with the religious freedom of individuals or groups who are not the beneficiaries of that law or governmental action. While the cases demonstrate that the Court has found many Establishment Clause violations over the years, the Court has also upheld laws or governmental actions that have the effect of treating religion equally with non-religion. This trend has been particularly evident in recent years with respect to the government’s including the religious with the secular in the receipt of governmental benefits. The Court has also upheld against Establishment Clause challenge governmental actions that are precisely tailored to protect the religious freedom of individuals and religious institutions. In the final analysis, as this paper will demonstrate, the function of the Establishment Clause in the American constitutional system is to protect religious freedom by requiring that the government maintain a course of complete official neutrality toward religion. The government is not required by the Establishment Clause to be hostile toward religion, but to the contrary may treat the religious and the secular equally and may act affirmatively to protect the religious freedom of individuals and religious institutions