Academic journal article Harvard Journal of Law & Public Policy

"Play in the Joints": The Struggle to Define Permissive Accommodation under the First Amendment

Academic journal article Harvard Journal of Law & Public Policy

"Play in the Joints": The Struggle to Define Permissive Accommodation under the First Amendment

Article excerpt


In the two decades since the Supreme Court left open the door for permissive religious accommodation in Employment Division v. Smith, (1) the Court has only obscured the doctrine further by creating multiple and overlapping analytical frameworks. (2) Public schools in particular have been caught in the crossfire between the mandate of the Free Exercise Clause and the prohibition of the Establishment Clause. They must attempt to walk a tight rope over a jurisprudential minefield, while trying to meet the needs of increasingly diverse student bodies. (3)

As the Roberts Court begins to take a fresh look at the First Amendment, (4) Congress has recently sought to encourage the Court to clarify the scope of the "play in the joints" (5) between the Free Exercise and Establishment Clauses, and the authority of state actors to accommodate their constituents' religious practices. An important component of the balance Congress has struck in this area, 42 U.S.C. [section] 1988, rewards those successful in bringing [section] 1983 (6) suits for Establishment Clause violations with attorneys' fees.

The statute, however, does more than simply give incentives to plaintiffs bringing [section] 1983 suits. In practice, [section] 1988 has placed schools in an impossible position. With no standard to assess the risk that they will lose a [section] 1983 claim and face paying plaintiffs' legal fees, schools must either risk losing budgetary funds at a time when school programs are already being cut for lack of funding (7) or give in to the demands of plaintiffs' lawyers. As a result, powerful interest groups are given the green light to intimidate schools into accepting their interpretations of the First Amendment rather than allowing such important constitutional questions to be decided by the courts.

The proposed Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2007 (PERA) would prohibit courts from awarding attorneys' fees under [section] 1988 for Establishment Clause violations, thereby removing one of the burdens on schools attempting to accommodate minority religious practices. (8) This statute would recalibrate the balance between litigants to the default American rule, (9) thus allowing each party to stand on equal footing when making strategic litigation decisions.

This Note is in three Parts. Part I examines the current state of the Court's free exercise jurisprudence and the state of permissive religious accommodation in public schools, arguing that a lack of clear guidance from the Court has led to inconsistent results that shrink the space between what the Establishment Clause forbids and what the Free Exercise Clause demands. Part II provides a case study on the state of religious accommodation in public schools, discussing the experience of a public elementary school that recently attempted to accommodate minority religious beliefs. Finally, Part III explores the Public Expression of Religion Act as a possible legislative solution to expand the ability of schools to accommodate religious practices that fall between the Establishment and Free Exercise Clauses.


The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (10) These sixteen words were written by "a group of statesmen ... who proposed a guarantee with contours not wholly worked out, leaving the Establishment Clause with edges still to be determined." (11)

The Court has stated that "the common purpose of the Religion Clauses 'is to secure religious liberty.'" (12) In 1952, the Court stated that "[w]hen the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions . …

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