Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices. 1 So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements.
This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. 2
There is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference. 3
In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was
fostering an ‘establishment’ of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. 4 Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has been upheld against Establishment Clause challenge, 5 although it is also possible for legislation to go too far in promoting free exercise. 6 Government need not, however, offer the same accommodations to secular entities that it extends to religious practitioners in order to facilitate their religious exercise;
[r]eligious accommodations . . . need not 'come packaged with benefits to secular entities.' 7
Play in the joints can work both ways, the Court ruled in Locke v. Davey, upholding a state's exclusion of theology students from a college scholarship program. 8 Although the state could have included theology students in its scholarship program without offending the Establishment Clause, its choice
not to fund religious training did not offend the Free Exercise Clause even though that choice singled out theology students for exclusion. 9 Refusal to fund religious training, the Court observed, was
far milder than restrictions on religious practices that have been held to offend the Free Exercise Clause. 10
The Court distinguished Locke, however, in Trinity Lutheran Church, explaining that Locke's holding hinged on that the fact that the State of Washington was prohibiting the dissemination of scholarship money because of what the theology student
proposed to do with the money as opposed to
who he was. 11 In particular, the Court noted that the Washington scholarship program in Locke could be used by students to attend pervasively religious schools, but the program could not be used for the training of the clergy. 12 In contrast, the Trinity Lutheran Church Court held that the State of Missouri’s decision to exclude an otherwise qualified church from a government grant program on the basis of the church’s religious status violated the Free Exercise Clause. 13 In so holding, the Court concluded that while the First Amendment allows the government to limit the extent government funds can be put to religious use, the government cannot discriminate based on one’s religious status and, in so doing, put the recipient of a government benefit to the choice between maintaining that status or receiving a government benefit. 14