Free? Exercise

Article excerpt

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

--James Madison(1)

INTRODUCTION

The United States is in the midst of the greatest wealth transfer from government to religious entities in its history.(2) The shift has been incremental and has occurred on a number of distinct fronts, and therefore has not been apparent to the casual observer. Because of the case and controversy requirement, which focuses the attention of judges and Justices on one case at a time, it is also a shift that may have been unnoticed by the judiciary and those who observe it.(3) Yet it has been a fast ride down a slippery slope about which James Madison warned over two hundred years ago. This slippery slope principle enunciated by Madison is reprinted in the epigraph at the beginning of this Article, and stands at least in part for the principle that small amounts of government aid open the door to greater amounts.

Although the courts are permitted to decide only one case at a time, in the Establishment Clause context, they typically and appropriately have considered the contemporaneous balance of power between church and state.(4) There has been an instinctual search for a balance that simultaneously empowers church and state while deterring both from overreaching. This is no easy task, but its paradoxical nature is built into the Constitution by the pairing of the Free Exercise and Establishment Clauses in the First Amendment.(5) This principle of balance has led the Court away from a dogmatic reading of the Clauses: The free exercise of religion does not give carte blanche to religion to supersede all laws.(6) And the Establishment Clause has not been read to preclude church-state relations in all circumstances.(7) I have argued previously that this search for a balance of power is the most true to constitutional intent, because it recognizes the Framers' fundamental insight that the two most authoritarian structures of human existence--religion and the state--are not static structures. Nor is the power they hold. Instead, the power they wield is malleable, and the Framers rightly assumed that both would attempt to stretch their powers in unpredictable ways.(8) Therefore, achieving a balance of power is the best that the courts can do, and bright-line rules are invitations to abuse.

Some of the most successful grabs for power are those that are hard to detect, e.g., incremental additions. A stream of financial advantages has been flowing from government to religion since the Court decided its first Establishment Clause case, Everson v. Board of Education, where it held that the government could provide school buses for children going to religious schools.(9) The current has picked up speed in recent years and has turned a trickle of government benefits into a torrent. Indeed, we have reached a point where one distinguished scholar has noted: "The [nonprofit] sector is thereby marked by a mutual dependence between government and nonprofit organizations. Neither can get along without the other."(10) The time has come to assess the state of the balance today.

In a move that would delight the deconstructionists, the word "free" in the Free Exercise Clause has been transformed from meaning "liberty" or "freedom" to its more literal denotation: costless. Thus, for religious advocates the clause has come to mean "costless exercise." Cost-free exercise can be achieved through two means: 1) relieving religious entities of all costs imposed on them by the law, from taxes and zoning requirements to clergy malpractice costs; and 2) obtaining government funds for their needs and missions. …