State Action under the Religion Clauses: Neutral in Result or Neutral in Treatment

David K. DeWolf

Document Type

Article

Publication Title

University of Richmond Law Review

Abstract

Since the affirmative action approach requires close scrutiny of the effects of state action upon religion, it requires courts to make judgments about what theological consequences-either to particular individuals or to a religion as a whole-will follow from whatever state action is being challenged. This kind of theological inquiry has been routinely eschewed in a long series of cases involving church control and other issues. Justice Stevens has identified the "overriding interest in keeping the government- whether it be the legislature or the courts-out of the business of evaluating the relative merits of differing religious claims." As Dean Ely has noted, "[A]n impact test of any variety would force legislators and administrators to make judgments of just the sort the framers of the First Amendment sought to discourage by the inclusion of the religious provisions. I call this concept the "no-entanglement" principle. Section II of this Article will briefly review the general outlines of the affirmative action/nondiscrimination dispute, and provide an overview of the major Supreme Court opinions on the religion clauses. Section III reviews the sources of the "no-entanglement" principle. Then sections IV and V demonstrate the entanglement caused by the "affirmative action" approach in two areas: (1) the school aid cases, where "sectarianness" of a school must be measured to determine how much benefit is derived from state aid to education; and (2) the free exercise cases, where "theological damage" must be measured to determine whether state action has interfered with free exercise. Finally, section VI describes how the alternative approach of nondiscrimination would resolve the very cases that have troubled the Court to date.

First Page

253

Last Page

360

Publication Date

Spring 1990

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