State Action Under the Religion Clauses: Neutral in Result or Neutral in Treatment?

The United States Supreme Court\u27s treatment of the first amendment\u27s religion clauses over the last fifty years has generated considerable controversy. While few religion clause cases reached the Supreme Court prior to 1940, the number steadily multiplied once the first amendment was incorporated into the fourteenth amendment. The Court\u27s doctrinal development was incremental and uncertain, but by 1971 the Court had developed a test for each of the religion clauses to evaluate the constitutionality of challenged state action. Although these tests have not been followed with perfect fidelity, they have been the starting point for virtually all of the religion clause cases decided by trial and appellate courts in the last fifteen years. Only recently has a majority of the Court shown willingness to depart from the basic philosophy contained in these two tests