The Law of Church and State: U.S. Supreme Court Decisions Since 2002

Congressional research reportMar 14, 2008

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Prepared for Members and Committees of Congress

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The First Amendment to the U.S. Constitution provides that “Congress shall make no law

respecting the establishment of religion, or prohibiting the free exercise thereof....” The language

is commonly referred to as the Establishment Clause and the Free Exercise Clause. The two

clauses serve to balance the collective freedom so that the government may neither coerce nor

prohibit citizens’ participation in religion. The U.S. Supreme Court historically has rendered its

decisions on both clauses without applying brightline rules.

Political developments have raised new questions of church-state relations. Since taking office in

2001, President George W. Bush has implemented the Faith-Based Initiative, which has brought

several First Amendment issues to the Court. Legislation provides vouchers for private schools

and public funding to religious organizations with a social purpose. Furthermore, the makeup of

the Court has changed, with Chief Justice Roberts and Justice Alito replacing Chief Justice

Rehnquist and Justice O’Connor. This may result in a shift in the Court’s understanding of the

religion clauses.

In the cases decided in the midst of these changes, the balance between non-establishment and

free exercise continues to be decided on the basis of the facts specific to each case. The Court has

decided somewhat similar cases differently, with the outcome turning on the details, suggesting

that specific context may be the most determinative factor in church-state decisions. This report

explains the holdings of each of the Court’s church-state cases since 2002, and also explains the

position of Justices who concurred in the judgments or dissented in each case.

This report is intended to supplement CRS Report 98-65, The Law of Church and State:

Developments in the Supreme Court Since 1980, by (name redacted) (last updated in 2002). It

will be updated as the Supreme Court renders relevant new decisions.

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Introduction ..................................................................................................................................... 1

2003 - 2004 Term ...................................................................................................................... 2

Elk Grove Unified School District v. Newdow .................................................................... 2

Locke v. Davey .................................................................................................................... 3

2004 - 2005 Term ...................................................................................................................... 5

Cutter v. Wilkinson .............................................................................................................. 5

McCreary County v. American Civil Liberties Union......................................................... 6

Van Orden v. Perry.............................................................................................................. 7

2005 - 2006 Term ...................................................................................................................... 8

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal ........................................... 8

2006 - 2007 Term .................................................................................................................... 10

Hein v. Freedom from Religion Foundation ..................................................................... 10

Conclusion .............................................................................................................................. 12

Author Contact Information .......................................................................................................... 12

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The First Amendment to the U.S. Constitution provides that “Congress shall make no law

respecting the establishment of religion, or prohibiting the free exercise thereof....”1 The language

is commonly referred to as the Establishment Clause and the Free Exercise Clause. The two

clauses serve to balance the collective freedom so that the government may neither coerce nor

prohibit citizens’ participation in religion.

The U.S. Supreme Court historically has rendered its decisions on both clauses without applying

bright line rules. The Establishment Clause cases, in particular, have used three tests to determine

whether a violation has occurred, (1) the Lemon test, (2) the coercion test, and (3) the

endorsement test. The Lemon test assesses whether a government action constitutes an

establishment of religion via a three-prong approach. The Court considers whether the action has

a secular purpose, whether the primary effect of the act is to advance or inhibit religion, and

whether the act creates excessive entanglement of religion and government.2 The Court has also

used a coercion test, under which it determines whether an individual would feel coerced to

participate in religious activity as a result of a government action.3 The final test the Court

invokes is the endorsement test, which assesses the effect of a person’s standing in the community

as a result of a government action. Government action cannot be constitutional under this test if it

suggests that non-adherents are outsiders and believers are insiders.4

As is the case in other freedoms guaranteed by the First Amendment, the freedom of religion is

not absolute. The Court has interpreted the Free Exercise Clause historically to mean that

government action alleged to interfere with religious practices could be constitutional only if it

were shown to serve some compelling public interest and to be no more restrictive of religious

practices than necessary.5 Government action burdening religious exercise, in short, was deemed

to be subject to a constitutional standard of strict scrutiny. Although historically the free exercise

of religion has been considered a fundamental right and infractions given this heightened standard

of review, the Court curtailed that standard for most cases in 1990. Currently, the strict scrutiny

standard does not apply to generally applicable laws that are otherwise valid and neutral.6 In other

words, the government may take actions that infringe on one’s free exercise of religion, so long as

its action does not specifically target the practice of religion and applies without regard to

religion.

Since taking office in 2001, President George W. Bush has implemented the Faith-Based

Initiative, which has brought several First Amendment issues to the Court. The Faith-Based

Initiative, created and developed by Executive Orders, allows non-governmental community

organizations, including religious groups, to compete for public funding of social services.7 The

U.S. CONST. AMEND. I. For analysis of the Supreme Court’s current interpretation of the religion clauses, see CRS

Report RS22833, The Law of Church and State: General Principles and Current Interpretations, by Cynthia Brougher.

See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

See Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

See Lynch v. Donnelly, 465 U.S. 668 (1984); see also Capitol Square Review and Advisory Board v. Pinette, 515

U.S. 753 (1995).

See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

See Employment Division v. Smith, 494 U.S. 872, 879 (1990).

See Exec. Order Nos. 13198, 13199, 13279, 13280, 13342, 13397.

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Charitable Choice legislation of the 1990s provides public funding to religious organizations with

a social purpose.8 More recent legislation provides for a voucher program for private schools,

including religious schools.9 Whether these provisions violate the Establishment Clause are core

issues that the Court may face in coming terms as similar claims continue to work through the

lower courts. Furthermore, the makeup of the Court has changed, with Chief Justice Roberts and

Justice Alito replacing Chief Justice Rehnquist and Justice O’Connor. This may result in a shift in

the Court’s understanding of the religion clauses.

In sum, political events have continued to raise church-state issues in the Court. The trend of factspecific rulings issued by the Court since 1980 has continued into the 21st century. This report

summarizes and examines the Court’s decisions regarding church and state from its October 2002

Term, through the present (i.e., October 2002 through June 2007).

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In Newdow, the Court considered the constitutionality of a California school district’s policy that

required each class to recite the Pledge of Allegiance daily. The main issue in the case was

whether the school could enforce this mandatory daily Pledge policy. In other words, the case

raised the question whether the public school district, by requiring elementary students to recite

the Pledge each day, was establishing religion in violation of the First Amendment. The Court

held in favor of the school district, 8-0.10 Five Justices (Stevens, Kennedy, Souter, Ginsburg, and

Breyer) dismissed the case on the preliminary issue of standing to sue (discussed below) without

reaching the merits. Three Justices (Rehnquist, O’Connor, and Thomas) concurred in the

judgment after reaching the merits. Justice Scalia did not participate in the case.

In Newdow, the father of a child in the school district claimed that requiring his daughter to recite

the Pledge, including the phrase “under God,” constituted indoctrination of a religion in which he

did not believe and did not want his child to be taught. The Court decided that Newdow, as the

child’s non-custodial parent under California law, did not have the standing required to sue on her

behalf.11 The concept of standing derives mainly from the Constitution’s case and controversy

requirement. Under Article III, federal courts are permitted to hear only cases that present actual

controversies between parties. In order to bring a case in federal court, a person must meet

general requirements of standing: a harm must be (1) suffered, (2) caused by the act being

challenged, and (3) capable of being remedied in the judicial system.12 In addition to these

constitutional standing requirements, courts have also imposed other limitations, known as

prudential standing requirements, on a person seeking to litigate certain issues. One of these is a

general prohibition on third-party standing, which arises when one person attempts to sue on

See the Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193, Title I—Block Grants for

Temporary Assistance for Needy Families, § 104.

See the Consolidated Appropriations Act, 2004, P.L. 108-199, Title III—D.C. School Choice Incentive Act of 2003,

§308(d).

Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).

Id. at 16-18.

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).

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behalf of another person.13 One exception to the prudential standing requirements concerns the

rights of minors; the parent of a child generally may sue on the child’s behalf. However, under

California law, only the parent with sole legal control over the child may bring a suit on her

behalf.14

Three members of the Court-Rehnquist, O’Connor, and Thomas-concurred with the majority’s

decision in favor of the school district, but wrote opinions that reached the merits of the case.

Citing examples dating back to President Washington, Rehnquist found that the phrase “under

God” was a variation on references to religion that had been a part of public statements by the

nation’s leaders for centuries. Rehnquist emphasized that the phrase was part of a patriotic

practice, not a religious exercise.15 O’Connor’s opinion interpreted the phrase as an expression of

ceremonial deism, something that refers “to the divine without offending the Constitution.”16 She

further stated that such references’ “history, character, and context prevent them from being

constitutional violations at all.”17 Justice Thomas believed that, because students are compelled to

attend school by law and because the school mandates that the Pledge of Allegiance be recited,

the students are effectively coerced.18 However, because Thomas believed Lee v. Weisman (the

case announcing the coercion test) to be wrongly decided, Thomas voted to uphold the Pledge

policy as well.19

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The Court’s next case illustrated the tension that may arise between the two clauses. In some

cases, in order to comply with a statute that has a valid secular purpose, such as a law prohibiting

polygamy, a person may be forced to violate his religious beliefs. In order to avoid such

situations, some statutes grant exemptions for violations based on religious beliefs. But these laws

granting an exemption to some individuals in order to satisfy the right to free exercise arguably

may be read as making an improper accommodation of religion in violation of the Establishment

Clause. On the other hand, if Congress does not allow an exemption, the person cannot obey the

statute without violating his religion. By not granting the exemption and satisfying the

Establishment Clause’s requirements of neutrality, the law creates a burden that arguably violates

the Free Exercise Clause. Thus, if a statute has an exemption, a person who does not hold

religious beliefs that entitle him to the exemption might bring an Establishment Clause challenge,

and, if the statute has no exemption, a person who does hold a particular religious belief might

bring a Free Exercise challenge. This situation illustrates the complexities of the religion clauses

of the Constitution that played out in Locke v. Davey.

See Allen v. Wright, 468 U.S. 737, 751 (1984).

See Newdow v. U.S. Congress, 313 F.3d 500, 502 (9th Cir. 2002).

See Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring).

Id. at 37 (O’Connor, J., concurring).

Id.

The coercion test was announced in the Court’s decision in Lee v. Weisman, 505 U.S. 577 (1992). In that case, the

Court held that a prayer at a high school graduation ceremony violated the Establishment Clause because students,

although not officially required to attend the ceremony, were effectively coerced to participate in a school event that

promoted a religious exercise because of the significance of the ceremony as a lifetime achievement and peer pressure

involved in attending high school events.

Id. at 49. For additional information on Newdow, see CRS Report RS21250, The Constitutionality of Including the

Phrase “Under God” in the Pledge of Allegiance, by (name redacted).

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In Locke v. Davey, Washington offered students state funding for college under its Promise

Scholarship Program. The Program offered academic scholarships to college students but

required that recipients not use the funds to pursue devotional theological degrees. After receiving

a Promise Scholarship from the state, Davey enrolled in Northwest College to pursue a dual

major in pastoral ministries and business management and administration. Because Davey’s

pastoral ministries major was considered devotional and ineligible for funding under the Program,

Washington did not provide Davey with the scholarship funds. Davey challenged the Program’s

limitation for devotional degrees, claiming that the state’s refusal to fund his chosen path of

education interfered with his Free Exercise rights.20 In clarifying the issues raised by this

challenge, the Court noted that, under federal constitutional law, when a recipient of public funds

makes an independent choice to spend those funds on religious training, there is no violation of

the federal Establishment Clause.21 However, state constitutions, such as Washington’s in this

case, may contain religion clauses that more strictly limit the state’s role in religious matters.

Washington’s Supreme Court interpreted the state constitution’s religion provision to prohibit the

state from funding religious instruction intended to prepare students for ministry.22

The issue of the case, thus, was whether Washington, acting pursuant to the anti-establishment

provision in its own constitution, could deny students state funding for devotional degrees

without violating the federal Constitution’s Free Exercise Clause. The majority (Rehnquist,

Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer) held that the withholding of the

funds did not improperly infringe on Davey’s federal right to free exercise.23 Justices Scalia and

Thomas dissented, finding that the scholarship policy violated Davey’s right to freely exercise his

religion.

When a law discriminates against religion on its face (e.g., the text of the law itself limits

religious exercise), the law is subject to a strict scrutiny standard of review. Because laws that

specifically target religion are considered suspect, the Court will strike them down unless it finds

that the law serves a compelling government interest and uses the least restrictive means

necessary to achieve that interest.24 In this case, the Court found that the Program’s “disfavor of

religion (if it can be called that) [was] of a far milder kind” than cases previously decided against

facially discriminatory laws.25 The Program “imposes neither criminal nor civil sanctions” on a

religious practice, “does not deny to ministers the right to participate in the political affairs of the

community,” and “does not require students to choose between their religious beliefs and

receiving a government benefit.”26 Factors such as these were present in previous cases where the

limitation on free exercise was found to be unconstitutional. Thus, the Court distinguished the

issue presented in Locke from First Amendment precedent, explaining that the “State’s interest in

not funding the pursuit of devotional degrees is substantial and the exclusion of such funding

places a relatively minor burden on Promise Scholars.”27 Scholars still were free to choose to

attend accredited religious schools and to enroll in devotional theology elective courses, but were

Locke v. Davey, 540 U.S. 712, 715-718 (2004).

See Mueller v. Allen, 463 U.S. 388, 399-400 (1983); Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).

See WASHINGTON CONST., Art. I, § 11; Witters v. Commission for Blind, 112 Wash.2d 363, 369-70 (1989); cf.

Witters v. State Comm’n for the Blind, 102 Wash.2d 624, 629 (1984).

Id.

See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).

Locke, 540 U.S. at 720-21.

Id.

Id. at 725.

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restricted only from using the state’s funds to support ministry as a major. The policy, according

to the Court, struck a correct balance between the Clauses. The federal Free Exercise Clause was

satisfied because students had the freedom to choose religious schools and religion courses, and

the Program also avoided violations of the state constitution’s prohibition on state sponsoring and

funding of religious ministry.

The dissenters found the majority opinion to be inconsistent with the Court’s previous

interpretation of laws burdening religious practices. Justice Scalia explained that because the state

“created a generally available public benefit, whose receipt is conditioned only on academic

performance, income, and attendance at an accredited school,” the state therefore must allow the

recipient of that benefit to use the funds to pursue his chosen path of study.28 Scalia argues that

the majority’s weighing of the state’s interest and the recipient’s burden is inappropriate if the law

is not facially neutral. Laws involving discrimination on the face of the statue, according to

Scalia, cannot be solved with mere balancing. Instead, any burden based on one’s religious

practice suffices to strike the facially discriminatory law as a violation of the Free Exercise

Clause.29

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Occasionally, as occurred in Locke, some governmental act aimed at protecting religious liberty

may be seen as a threat to that same liberty. In 2000, Congress passed the Religious Land Use and

Institutionalized Persons Act (RLUIPA).30 The act provided that the government could not

substantially burden religious exercise of any person residing in or confined to an institution,

unless a compelling state interest was present and the state used the least restrictive means in

placing the burden. In effect, the legislation ensured that strict scrutiny would apply to

government actions that interfere with individuals’ religious exercise. The issue presented to the

Court in Cutter was whether that provision attempting to protect Free Exercise advanced religion

in violation of the Establishment Clause.31

The Court held that Section 3 of RLUIPA, the provision applying the strict scrutiny standard to

burdens on institutionalized persons, did not violate the Establishment Clause and in fact was a

permissible accommodation of religion. Current and former inmates of Ohio correctional

facilities brought the suit, claiming that officials did not accommodate their religious needs as

believers in non-traditional religions. The inmates claimed that they were denied the chance to

dress as their religion required, denied various ceremonial items recognized by their religions,

and denied a chaplain trained in their religion. State officials responded that the RLUIPA was

unconstitutional because it improperly favored religion under the Establishment Clause and that

therefore they were not obligated to accommodate the inmates’ requests. The unanimous Court

ruled that some accommodation of religious practices is not by itself sufficient to constitute a

violation of the Establishment Clause. Citing several historic First Amendment cases, including

Id. at 727.

Id. at 728-32.

42 U.S.C. § 2000cc et seq.

Cutter v. Wilkinson, 544 U.S. 709 (2005).

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its recent decision in Locke, the Court held that the challenged portion of the act “does not, on its

face, exceed the limits of permissible government accommodation of religious practices.”32

The Court noted that, as a part of protecting religious liberty guaranteed by the First Amendment,

the government sometimes is required to facilitate and accommodate the exercise of religion by

those “institutionalized persons who are unable freely to attend to their religious needs....”33 The

Court noted that its decision in Cutter did not “elevate accommodations of religious observances

over an institution’s need to maintain order and safety” and that the Justices had “no cause to

believe that RLUIPA would not be applied in an appropriately balanced way, with particular

sensitivity to security concerns.”34 The Court declined to strike down the law on its face, but

noted the possibility that application of the law in certain circumstances might violate the

Establishment Clause. In closing its opinion the Court suggested that state institutions may

decline to make religious accommodations if those accommodations “become excessive, impose

unjustified burdens on other institutionalized persons, or jeopardize the effective functioning of

the institution....”35 Without such imposition of burdens, the Court said, accommodation of

religious practice in state institutions cannot be in violation of the First Amendment.

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Twice in its 2004-2005 term the Court considered the constitutionality of the government’s

displaying the Ten Commandments on public property. In the first case, two counties in Kentucky

put up large displays of the Ten Commandments in their courthouses, prompting the American

Civil Liberties Union of Kentucky to sue for injunctive relief. In reaction to the suit, the counties

expanded the exhibit to show that the Commandments were “Kentucky’s precedent legal code” to

include eight other documents, the common theme of which was a reference to religion. As the

dispute between the parties continued, the counties changed the display a third time. The final

display included the nine documents of similar size to each other, with a title “The Foundations of

American Law and Government Display.”36

Declining the counties’ request to abandon the Lemon test’s purpose prong, the Court held, 5-4,

that the context of the display and purpose behind the actions could not be ignored when

considering whether the display violated the Establishment Clause. The majority (Souter, Stevens,

O’Connor, Ginsburg and Breyer) held that the “manifest objective [of the displays] may be

dispositive of the constitutional enquiry, and that the development of the presentation should be

considered when determining its purpose.”37 The Court noted that the evolution of the displays

throughout the dispute rested on religious themes, rather than on any historical link or secular

purpose. The Court explained that the Establishment Clause requires neutrality among religious

and between religion and nonreligion, and that, if “the government acts with the ostensible and

predominant purpose of advancing religion, it violates that central Establishment Clause value of

official religious neutrality.”38 The Court clarified that the purpose prong of the Lemon test was

Id. at 714.

Id. at 721.

Id. at 722.

Id. at 726.

McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 851-56 (2005).

Id. at 850-851.

Id. at 860.

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aimed not at secret or subtle motivations that would escape notice from the common observer, but

rather that the test turned on whether a religious purpose was observable “from readily

discoverable fact.”39

Justice Scalia, writing for the dissent, cited historic instances of religious references in public

speaking and religious displays in public life as evidence that the Establishment Clause was not

meant to forbid all public displays of religion. The dissent disputed the majority’s claim that the

Establishment Clause’s requirement of neutrality should be interpreted as forbidding preference

among religions or between religion and nonreligion. Instead, Justice Scalia argued, the principle

of neutrality applies where public aid or a restriction on free exercise is contemplated but not

where public acknowledgment is made. To require such acknowledgment be kept within those

neutrality limits would require that religion be “entirely nondenominational,” which would mean

“there could be no religion in the public forum at all.”40 This distinction between

acknowledgment and establishment is dispositive in Justice Scalia’s interpretation of the

Establishment Clause.

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The second Ten Commandments case the Court considered yielded a different result. The Court

considered whether a monument of the Ten Commandments on display on Texas State Capitol

grounds constituted an establishment of religion under the First Amendment. The state placed the

monument on the grounds as part of its larger display of dozens of other historical markers and

monuments that were intended to reflect components of Texan identity. Unlike in McCreary, the

Court upheld this display as constitutional, but the Justices did not reach a consensus in its

reasoning.41

The plurality opinion, written by Chief Justice Rehnquist and joined by Justices Scalia, Kennedy,

and Thomas, explained that the Lemon test was inappropriate for evaluating the constitutionality

of monuments and stated that analysis in this case should be “driven both by the nature of the

monument and by our Nation’s history.”42 The opinion listed references to religion in public life

and religious displays in public buildings that had been a part of American heritage throughout

U.S. history.43 Rehnquist emphasized that context matters in decisions involving public displays

of religious symbols, noting that the Court did not uphold a statute requiring displays of the Ten

Commandments in schools. Because schools are particularly sensitive areas in terms of creating a

sense of religious establishment, the Court recognizes a need for more restrictions when religious

symbols are displayed in that setting.44 The plurality found the Texas monument “a far more

passive use of those texts than was the case in Stone, where the text confronted elementary school

students every day. Indeed, Van Orden ... apparently walked by the monument for a number of

years before bringing this lawsuit.”45 Because the monument was part of a broader display

focused not merely on religion, the plurality held the Establishment Clause was not violated.

Id. at 862.

Id. at 893.

Van Orden v. Perry, 545 U.S. 677, 681-83 (2005).

Id. at 686.

See id. at 686-88.

Id. at 690.

Id. at 691.

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Justice Breyer, who provided the deciding vote in both Ten Commandments cases, concurred

with the judgment but wrote separately to explain why he reached different outcomes in each

case. Breyer notes that there is “no single mechanical formula that can accurately draw the

constitutional line in every case” in any of the Court’s historic Establishment Clause precedent.46

According to Breyer, the Establishment Clause requires the government to “avoid excessive

interference with, or promotion of, religion” but “does not compel the government to purge from

the public sphere all that in any way partakes of the religious.”47 Recognizing Van Orden as a

borderline case, Breyer suggests that objective legal judgment is the most effective evaluation in

such fact-specific cases. This objective legal judgment considers “the underlying purpose of the

Clauses” and the “context and consequences measured in light of those purposes.”48 According to

Breyer, in Van Orden, the monument had stood unchallenged for 40 years as part of a larger

display that communicates a secular message and suggests no state-initiated plan for a sacred

display of religious messages. Breyer found that the display satisfied the Lemon test because it

had an apparently secular purpose, did not advance or inhibit religion and did not create an

excessive entanglement of religion and government.

The dissent (Justices Stevens, O’Connor, Ginsburg, and Souter) believed the monument to be an

unconstitutional endorsement of religion, claiming that the monument’s presence violates the

requirement of government neutrality. The dissenters emphasized that government not only

cannot promote one religion over another, but cannot promote religion generally over nonreligion.49 Because the monument explicitly states a religious code that recognizes a divine being

and also “commands present worship of Him and no other deity,” it “cannot be discounted as a

passive acknowledgment of religion, nor can the State’s refusal to remove it upon objection be

explained as a simple desire to preserve a historic relic.”50 Constitutional neutrality, according to

the dissent, cannot be achieved in a case where “a pedestrian happening upon the monument ...

needs no training in religious doctrine to realize that the statement of the Commandments ...

proclaims [that] the will of a divine being is the source of obligation to obey the rules, including

the facially secular ones.”51

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In this case, the Court considered the Religious Freedom Restoration Act of 1993 (RFRA). In

1990, the Court’s ruling in Employment Division, Department of Human Resources of Oregon v.

Smith rejected its previous interpretation of the Free Exercise Clause.52 Prior to 1990, the Court

required that the strict scrutiny standard be applied to any government actions alleged to interfere

with religious practice.53 When the Court rejected that interpretation in Smith, it held that the Free

Id. at 699.

Id.

Id. at 700.

Id. at 710.

Id. at 717, 712.

Id. at 738.

494 U.S. 872 (1990).

See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972); Thomas v. Review Bd.,

Indiana Employment Sec. Comm’n, 450 U.S. 707 (1981). For further discussion of the evolution of the standard of

(continued...)

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Exercise Clause generally did not protect individuals who broke generally applicable laws while

practicing their religion.54 Therefore, under Smith, free exercise protections became more limited

in scope. RFRA created broader protection for religious exercise by requiring that strict scrutiny

be applied when a generally applicable law (one that applies to all individuals, without regard to

religion) interferes with religion. RFRA thus replaced the constitutional rule of Smith. In other

words, the statute, rather than a constitutional interpretation, now provides that the federal

government cannot substantially burden individuals’ exercise of religion unless it uses the least

restrictive means to promote a compelling interest.55

In Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, the Court again, as in Smith,

considered a challenge of a generally applicable law that incidentally burdened a religious

group’s religious practice.56 Members of the O Centro Espirita Beneficente Uniao Do Vegetal

(UDV) church celebrate their faith in part by drinking hoasca, a sacramental tea containing a

hallucinogen that is regulated under the Controlled Substances Act (CSA). When U.S. Customs

inspectors seized a shipment of hoasca under the CSA, the UDV challenged the seizure as a

violation of RFRA’s protections for free exercise of religion.57

The unanimous Court (except Justice Alito, who did not participate in the case) held that the

government had not demonstrated a compelling interest that RFRA requires to justify barring the

UDV’s sacramental use of hoasca. Although the government asserted three interests in completely

banning hoasca, the Court did not believe that any of these interests satisfied the strict scrutiny

standard that RFRA requires for laws that interfered with religious practices. One of the interests

the government cited was that the nature of drugs that were highly regulated under the CSA

precluded individual exceptions such as the UDV was requesting. These drugs, according to the

government, had a high potential for abuse, had no currently acceptable medical use, and were

unsafe for medical use.58 Because of these factors, the government claimed that a complete ban

was necessary and that any exceptions would be detrimental to its purposes for regulating the

drugs. However, the Court noted that the CSA itself provides for possible exemptions and that

there has been an exemption made for use of peyote by the Native American Church for 35

years.59 The Court explained that, because the CSA appears to recognize the restrictions it places

on certain substances are not absolute, mere categorization of substances by the CSA “should not

carry the determinative weight, for RFRA purposes, that the Government would ascribe to

them.”60 Thus, the Court recognized “that there may be instances in which a need for uniformity

precludes the recognition of exceptions to generally applicable laws under RFRA,” but the Court

(...continued)

review applied to Free Exercise cases, see CRS Report 98-65, The Law of Church and State: Developments in the

Supreme Court Since 1980, by (name redacted), at 5-9.

The Court did not abandon strict scrutiny entirely. Under Smith, strict scrutiny would still apply in cases involving

government programs allowing individualized assessment of claims for exemption (i.e. state unemployment

compensation programs) and cases involving governmental actions that discriminate against religion or deliberately

impose special burdens on religion. The Court suggested, but did not make clear, that strict scrutiny may apply in

challenges that involved a free exercise claim coupled with another constitutional interest such as freedom of speech.

42 U.S.C. § 2000bb-1. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court, on federalism grounds, held

RFRA to be unconstitutional as applied to the states.

Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).

Id. at 425-26.

Id. at 432.

Id. at 432-33.

Id.

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did not allow the government to apply broad prohibitions that affect individuals’ free exercise of

religion without a specific compelling interest in the particular case.61

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The Court’s most recent church-state case focused on the issue of taxpayer standing to raise

Establishment Clause claims. Taxpayers typically do not have standing to sue the government on

the grounds that their tax money has been spent in a manner that the taxpayer considers improper.

Such claims are considered to be too generalized and more appropriately remedied through the

political process rather than by the courts. One exception to this rule, created by Flast v. Cohen,

allows taxpayers to raise Establishment Clause challenges of actions taken by Congress under

Article I’s Taxing and Spending Clause.62 The Court considered the scope of this exception,

specifically its application to executive branch spending, in the context of conferences held by the

White House Office of Faith-Based and Community Initiatives (OFCI).

When President Bush created the OFCI, he did so by presidential prerogative, without specific

congressional authority.63 The Office is funded through general executive branch appropriations

rather than any specific appropriations legislation. Several taxpayers, relying on Flast, challenged

the funding of the Office as an unconstitutional promotion of religion with public funds. A

divided Court held that the Flast exception was not broad enough to cover executive spending

such as the challenge raised in this case.

Justice Alito, joined by Chief Justice Roberts and Justice Kennedy, considered the background of

the OFCI and noted the general rule that payment of taxes is insufficient to establish standing in

cases against the government. The purpose of the OFCI was to ensure “private and charitable

community groups, including religious ones ... the fullest opportunity permitted by law to

compete on a level playing field, so long as they achieve valid public purposes.”64 The challenge

in the case claimed that conferences organized by the OFCI promoted religious groups over

secular groups. Alito explained the underlying principles of the Court’s standing doctrine:

“federal courts are not empowered to seek out and strike down any governmental act that they

deem to be repugnant to the Constitution” and may only “‘decide on the rights of individuals.’”65

The Court has consistently held that taxpayer claims regarding federal spending are “‘too

indeterminable, remote, uncertain and indirect’” to allow courts to validly consider the merits of

the case under standing doctrines.66 The Flast exception, Alito noted, was created as a narrow

exception to standing requirements.

In a previous case, the Court had ruled that Flast “limited taxpayer standing to challenges directed

‘only [at] exercises of congressional power under the Taxing and Spending Clause.’”67 According

Id. at 436-37.

392 U.S. 83, 88 (1968).

See Exec. Order No. 13,199 (January 29, 2001).

Exec. Order No. 13,199, Section 1.

Hein v. Freedom from Religion Foundation, 127 S.Ct. 2553, 2562 (2007).

Id. at 2563.

Id. at 2566, quoting Valley Forge Christian College v. Americans United for Separation of Church and State, 454

(continued...)

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to the plurality in Hein, if expenditures are not specifically authorized or required by

congressional action, a challenge to such expenditures “is not directed at an exercise of

congressional power and thus lacks the requisite ‘logical nexus’ between taxpayer status ‘and the

type of legislative enactment attacked.’”68 When a general appropriation is made to an executive

branch agency, the disbursement of those funds by the agency is considered “an administrative

decision traditionally regarded as committed to agency discretion” and thus not eligible for

review by the judicial branch.69 Justice Alito noted that, in declining to extend Flast “to

encompass discretionary Executive Branch expenditures,” the Court recognized that Flast has

been confined to its facts for four decades.70 Alito explained that, “because almost all Executive

Branch activity is ultimately funded by some congressional appropriation, extending the Flast

exception to purely executive expenditures would effectively subject every federal action ... to

Establishment Clause challenge by any taxpayer in federal court.”71 Alito suggested that such a

decision would essentially open the floodgates of litigation and that democratic power would be

undermined if taxpayers could assert their political grievances in the courts rather than through

the political process.

Justices Scalia and Thomas concurred in the judgment, but wrote separately regarding Flast.

Agreeing with the plurality on the need for limits on taxpayer standing, Justice Scalia noted his

preference that the Court re-evaluate the validity of the Flast exception altogether. Scalia believed

that the Court should choose between two options: apply Flast to all challenges to expenditures

alleged to violate constitutional provisions that limit the taxing and spending power or reject Flast

entirely.72 He argued that there is “no intellectual justification” for the distinction that the plurality

drew between expenditures that are expressly authorized by Congress and those that come from

general executive branch appropriations.73 Scalia noted that he shares “the dissent’s bewilderment

... as to why the plurality fixates on the amount of additional discretion the Executive Branch

enjoys ... beyond the only discretion relevant to the Establishment Clause issue: whether to spend

taxpayer funds for a purpose that is unconstitutional.”74 Because the exception illogically justifies

standing in some, but not all, executive branch spending cases, the concurring Justices would

have denied standing in this case.

The dissent in Hein (Souter, Stevens, Ginsburg, and Breyer) criticized the distinction made by the

plurality in recognizing standing only for expenditures expressly authorized by Congress. Justice

Souter objected that, with “no basis for this distinction in either logic or precedent,” the plurality

“closes the door on these taxpayers because the Executive Branch, and not the Legislative

Branch, caused their injury.”75 The dissent rejected the argument that executive spending should

be given a lesser level of judicial review than legislative spending, noting that “if the Executive

(...continued)

U.S. 464 (1982) (internal quotation marks omitted); see also Schlesinger v. Reservists Committee to Stop the War, 418

U.S. 208, 228 (1974).

Id. at 2568 (citations omitted).

Id. at 2567, quoting Lincoln v. Vigil, 508 U.S. 182, 192 (1993).

Id. at 2568.

Id. at 2569.

Id. at 2573-74. Scalia clearly preferred the latter option, finding that “Flast is wholly irreconcilable with the Article

III restrictions on federal-court jurisdiction....” Id. at 2574.

Id. at 2579.

Id. at 2581.

Id. at 2584.

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could accomplish through the exercise of discretion exactly what Congress cannot do through

legislation, Establishment Clause protection would melt away.”76

This survey of Supreme Court opinions illustrates the challenges the Court faces in religion cases

arising under the First Amendment. In Newdow and Hein, the Court upheld standing requirements

to bar Establishment Clause claims. In McCreary and Van Orden, the Court provided a clear

illustration that context matters in questions of religious displays on government property.

Deciding two cases challenging Ten Commandments displays on courthouse property differently,

the Court considered factors such as the length, size and placement of the display, the degree of

controversy the display created, and the general purpose for which the display was created-all

very fact-specific inquiries.

Cutter and Gonzales further illustrate the emphasis that the Court appears to place on the

importance of facts in its church-state decisions. Cutter, while allowing states to accommodate

individuals’ religious needs without establishing religion, also allows states to make

determinations that accommodations are inappropriate either for constitutionality or for safety

purposes. Gonzales, allowing the challenging church to continue its sacramental use of an illegal

substance, allows the government to prohibit such use provided the limitation is not a broadly

sweeping one that ignores the particular aspects of the specific drug and its usage.

The Court’s decision in Locke was made in what it termed “room for play in the joints,” a phrase

the Court used to refer to the gray area where the Establishment Clause and Free Exercise Clause

occasionally intersect.77 In balancing the two clauses, the Court determined that free exercise may

not necessarily be infringed when the state is enforcing its own constitution’s strict antiestablishment provision.

In conclusion, in the cases that the Court has considered, the balance between non-establishment

and free exercise continues to be debated on a case-by-case basis. The Court has decided

somewhat similar cases differently, with the outcome turning on the details, implying that specific

context may be the most determinative factor in church-state jurisprudence.

ȱȱ ȱ

Cynthia Brougher

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Id. at 2586.

Locke, 540 U.S. at 719.

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