Free? Exercise

By Hamilton, Marci A. | William and Mary Law Review, March 2001 | Go to article overview

Free? Exercise


Hamilton, Marci A., William and Mary Law Review


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Free? Exercise
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.