Academic journal article Ave Maria Law Review

Coordinating the Exercise and Establishment Clauses: A Narrow Establishment Clause Test for Government Funding of Prisoner Rehabilitation Services by Religious Providers

Academic journal article Ave Maria Law Review

Coordinating the Exercise and Establishment Clauses: A Narrow Establishment Clause Test for Government Funding of Prisoner Rehabilitation Services by Religious Providers

Article excerpt


Any time religious organizations interact with government, there looms the potential application of the Establishment Clause. (1) Its invocation becomes a near certainty whenever public funds pass to religious institutions. (2) But this is where the certainty ends, because the Court's Establishment Clause jurisprudence has become mired in a web of confusing and contradictory rules. (3) The Court has been unable to settle on any one test or model, even in cases that present similar facts. (4) As one scholar has noted, "[T]he Supreme Court's Establishment Clause jurisprudence is a mess--both hopelessly confused and deeply contradictory." (5) Because of how the Establishment Clause has been applied, it has often created a dissenter's right, which has served to restrict religious freedom just as a heckler's veto can serve to restrict free speech rights. (6)

One controversy under the Establishment Clause is whether government can contract with religious organizations on the same terms as it can with secular organizations for certain social welfare services. (7) This Article will attempt to offer a more simplified and narrowly focused Establishment Clause test, focusing particularly on government funding or accommodation of religious organizations performing social welfare work in prisons. (8) In articulating this model, the Article will elaborate on the Establishment Clause model put forth in Wrestling with God. (9) The model relies on a cooperative and coordinated relationship between the Free Exercise Clause (10) and the Establishment Clause. (11) By narrowing the application of the latter, the model in turn expands the reach of the former. Thus, when determining whether government aid to or accommodation of religious groups performing social welfare work in prisons violates the Establishment Clause, the focus should only be at one level: the level at which the government is choosing funding beneficiaries. Any concern about how the program functions regarding the actual program beneficiaries becomes a matter for the Free Exercise Clause.

Part I of this Article examines the constitutional role and purpose of the Establishment Clause. The history surrounding the debates and ratification of the First Amendment strongly suggests that the Establishment Clause works in tandem with the Free Exercise Clause to protect religious liberty, with the Establishment Clause focusing on the institutional aspect of religious liberty. As such, the Establishment Clause does not prevent government from giving aid to religious institutions, as long as that aid does not discriminate in form or against any particular institution.

After examining the general role and purpose of the Establishment Clause, Part II of the Article sets out a new model for determining the constitutionality of government funding programs in which religious organizations participate. This test seeks to simplify Establishment Clause jurisprudence, as well as accommodate the historic role that religion has played in the nation's social welfare system.


A. The Narrow Focus on Institutional Autonomy

One view of the Establishment Clause, persuasively articulated by Professor Steven Smith, is that the clause is jurisdictional and has no substantive meaning at all. (12) In this respect, the Establishment Clause has been interpreted as having a federalism component, insofar as it provides a "constitutional promise to the states that the federal government would not interfere with certain forms of state religion policy." (13) This is the view Justice Thomas has adopted, leading him to argue that the Establishment Clause never should have been applied to the states by way of incorporation through the Fourteenth Amendment. (14)

Although the jurisdictional view of the First Amendment is powerfully persuasive, it is not the view taken here, especially since the adoption of that view would require that the Supreme Court do the extremely unlikely: reverse itself on the issue of incorporation. …

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