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The "no establishment" (or simply "establishment") clause of the First Amendment has in recent decades been interpreted as mandating governmental neutrality not only between or among religions but also, implicitly, between religion and irreligion; that is, the state cannot support religion in any manner. This was not always the case. Indeed, the First Amendment's prohibition on Congress from making any law "respecting an establishment of religion" initially may have been intended to "protect the state religious establishments from disestablishment by the federal government" (Carter 1993:118). For many decades, courts perceived little or no conflict between the establishment clause and a de facto Protestant establishment (Demerath and Williams 1987).

In the twentieth century, the notion of a broad "separation of church and state" linked to an expansive conception of the "no establishment" norm became more attractive to Protestant churches in part as a response to the mainstreaming of Catholicism. It was feared that the latter, increasingly powerful and reputable, might conceivably "establish" itself in those cities in which it predominated (Demerath and Williams 1987). Separationism thus became Protestantism's compensation for loss of hegemony. More recently, however, Southern Baptists and other evangelical groups have somewhat reversed their position on church-state separation and now see the latter as associated with the insidious modern "establishment" of secular humanism.

The American combination of a formal separation of religious and public spheres and a culture pervaded by religion is somewhat of an anomaly that produces a periodic eruption of quasi-religious puritanical movements such as abolitionism, temperance, or McCarthyism, which impinge on the political realm (Tiryakian 1993). Research by Williams and Demerath (1991) indicates that the idea of separation enjoys broad support among Americans, as does a partly conflicting notion of "civil religion," or the sacredness of American society and the moral and spiritual unity of the nation. According to the authors, there are three modes of popular and intellectual rationalizations that mitigate the tension between the values of separation and civil religion: (1) A selective resolution manipulates narrow and convenient definitions of "religion" and "politics"; (2) a contingent resolution stresses the mutually reinforcing interdependence of civil religion and church-state separation; and (3) a majoritarian resolution implicitly redefines the separation of church and state as pertaining mainly to deviant sects who alone are to be kept out of the public sphere or denied full legal protection.

Midcentury Balancing Tests

In a line of Supreme Court cases between the late 1940s and the early 1970s, the purpose-effect-entanglement criteria, or "Lemon Test" (from Lemon v. Kurtzman 1971), evolved to adjudicate "separation" claims under the establishment clause. The First Amendment was held to be violated if a public measure did not have a "secular purpose," if it tended to promote or inhibit religion, or if it unduly "entangled" the state with a religion. In the context of evangelical religious revival and politicization plus conservative political and judicial ascendancy, the Lemon Test is losing support and is strongly criticized (e.g., Carter 1993:109-115). More permissive alternatives have been suggested (McConnel 1992:155-168) such as a "coercion test," merely prohibiting the government from coercing anyone to accept or relinquish a faith. At this writing, there does not seem to be any judicial consensus on what should replace the Lemon Test or how the latter might be modified. Souring on the Lemon Test but uncertain as to how to improve or transcend it, the Supreme Court seems to be marking time by redefining cases that seem to raise establishment clause issues as essentially free speech cases. Religious litigants can thus be vindicated without formally redefining the scope of the establishment clause or explicitly revising or repudiating the Lemon Test (e.g., the 1995 decision in Rosenberger v. U. Virginia compelling the university to subsidize a religious magazine out of funds collected from students). The Lemon Test thus languishes from not-so-benign neglect, while an indirect approach to weakening the separation of church and state evolves (Bradley et al. 1995).

The free exercise clause of the First Amendment remained more or less of a dead letter for many decades. "The nation's consensus on core religious beliefs made it unlikely that many 'free exercise' cases would arise" (Demerath and Williams 1987:78). For many decades, the controlling precedent was the 1878 Mormon polygamy case, Reynolds v. U.S. , which ordained that the First Amendment's guarantee of religious "free exercise" protects mainly religious belief and that "conduct, however religiously motivated, must conform to valid secular laws" (Way and Burt 1983:660). Midcentury cases in the 1960s and 1970s modified this dictum and established the rule that if a regulation "burdens" religious practice, it must be supported by a demonstration of a "compelling state interest" (CSI) on behalf of intervention. This test appears to have been recently overturned by Justice Scalia's majority opinion in Employment Div. v. Smith (1990), which proclaimed that uniform, across-the-board (i.e., nondiscriminatory) regulations are not to be viewed as presumptively invalid and do not require a showing of a CSI. An ambiguous loophole involves "hybrid cases" in which free speech as well as free exercise is implicated; that is, religious speech acts may possibly still receive "substantive" (CSI) protection (Laycock 1991). In 1994, Congress passed the Religious Freedom Restoration Act (RFRA), which was supposed to restore the CSI test, but interpretations of the scope and effect of the RFRA vary markedly, and one federal judge has already declared RFRA unconstitutional. At this writing, the Supreme Court is considering the constitutionality of RFRA.

Problems of Religious Minorities

Powerful, reputable churches can forfend against burdensome regulations by nonjudicial means, therefore the effect of Smith will fall mainly on minority sects (Finke and Iannaccone 1993). The ruling "entrenches patterns of de facto discrimination against minority religions" (Sullivan 1992:216). Of interest, the CSI balancing test may actually have had a slight operational bias in favor of minority religions (Way and Burt 1983). A widespread perception that deviant sects were becoming the primary clientele of modern free exercise jurisprudence may have made it easier for conservative jurists to dispense with substantive (CSI) free exercise (Carmella 1992), although conventional churches also may need First Amendment protection. "In an increasingly secular society, churches begin to play sectarian roles and the notion of mainstream religion becomes oxymoronic" (Demerath and Williams 1987:81).

Religious minorities are on the cutting point of free exercise litigation because regulatory initiatives may be "tested" first on politically weak or disreputable groups before becoming integrated into church-state law (Robbins 1985). Scholars in religious studies and the sociology of religion have been particularly concerned with church-state issues involving minority religions (Bromley and Robbins 1992, Pfeiffer and Ogloff 1992, Robbins and Beckford 1993), and most particularly with issues involving conversion processes , that is, "brainwashing" claims (Anthony and Robbins 1995, Richardson 1993, Shinn 1992). Because "new religious movements" (NRMs) generally lack a large membership base for internal donative funding, they often become commercially diversified; hence state regulation of their economic activities also has been a concern (Passas 1994, Richardson 1988a), as have legal issues regarding violent confrontations with authorities (Gaffney 1995). Nevertheless, the overwhelming majority of scholarly contributions in the area of NRMs and the law have dealt with "mind control" issues, perhaps because litigants' claims and state intervention in this area implicate religious beliefs (Anthony and Robbins, 1992), as well as free speech , and raise the specter of state regulation of subjective consciousness . Although the evolving legal situation with respect to "cults" and psychological coercion claims remains ambiguous (Anthony and Robbins 1992), the spate of recent episodes of large-scale violence involving American, Euro-Canadian, and Japanese "cults" (1993-1995) may shift public opinion against the defense of the First Amendment rights of sectarian minorities.

There is some dissensus over whether the rights of religious minorities will be protected better under conditions of a strict separation of church and state, in which majoritarian discrimination might be minimized, or whether minority rights are more safely entrusted to (antiseparationist) "accommodationists" who believe in weak state regulatory claims and strong free exercise protections. "Accommodation," however, is often primarily accommodation to powerful and reputable churches at the expense of dissident or minority movements (Richardson 1988b). More generally, there is conflict over whether the establishment and free exercise clauses of the First Amendment are coequal such that religion is protected from state interference while the public realm is simultaneously protected from religious interference. Alternatively, the protection of religious freedom is seen as the first priority such that "separation" becomes merely instrumental (Carter 1993). In this view, secularization and religious exclusion from "the naked public square" now have become excessive (Carter 1993, Neuhaus 1984). The degree of "separation" that should exist between church and state is thus currently controversial among religious intelligentsia. There is greater consensus, at least among writers and scholars focusing on religion, on the need for broad constitutional protection of free exercise.

Nevertheless, Hammond and Mazur (1995) suggest that free exercise should be more narrowly defined in terms of individual conscience , an approach that favors individual commitments over what a writer with a different view has called the "corporate free exercise" of churches (Worthing 1985). However, Carter (1993:129-132) sees the reduction of protected free exercise to individual (as opposed to collective-institutional) commitments, or to verbal communicative acts (as opposed to ritual acts and physical acts of worship), as trivializing religion and denying its collective and behavioral nature.

Growing Church-State Tension

Various factors may be identified as contributing to the current growth of church-state tension. The increase in religious pluralism represents a key factor because a disproportionate amount of free exercise and general church-state litigation now involves religious minorities (Wood 1985). The growth of government in connection with the increasing dependence of religious and other service groups on direct or indirect state support to pursue their missions accentuates conflict as the state hungrily eyes tax-exempt church revenues while churches seek nondiscriminatory public support for their social programs as integral to their free exercise. It is frequently maintained that in the context of the "welfare-regulatory state," there are simply too many inexorable points of contact between the state and religious organizations for the "benign neglect" ideal of strict separation to remain viable (Carter 1993:136-155, McConnel 1992).

The presently enhanced politicization of some forms of American religion and the associated decline of moral consensus and rise of "cultural politics" clearly form part of the context of heightened church-state tension. Increasingly, "moral disputes must be referred to the political process and the courts" (Berger 1982:18). The litigation and legislation of moral issues "entangles" both the state in the religio-moral realm and the religio-moral interests in political and legal processes. Religious groups and leaders are thus increasingly encouraged to put forward claims in the public sphere; that is, the "politicization of religion" comes to entail the "religionization of the state" (Robertson and Chirico 1985). According to Cochran et al. (1987:612), under the impact of various social, technological, political, and cultural changes, the hallowed liberal dichotomies of public-private, religious-secular, and church-state are becoming blurred; church-state tension proliferates in the growing ambiguity, as "changes in the activity and scope of government are likely to continue to stimulate religious politics."

It may be ironic that the current increase in church-state conflict and litigation, to which religious revival and religious politicization are contributing, may conceivably result in a curtailment of the traditionally deregulated quality of American religion, which some scholars view as a key source of its vitality (Finke and Iannaccone 1993).

—Thomas Robbins

References

D. Anthony and T. Robbins, "Law, Social Science and the 'Brainwashing' Exception to the First Amendment," Behavioral Sciences and the Law 10(1992):5-30

P. Berger, "From the Crisis of Religion to the Crisis of Secularity," in Religion and America , ed. M. Douglas and S. Tipton (Boston: Beacon, 1982): 14-24

D. G. Bromley and J. K. Hadden (eds.), Handbook of Cults and Sects in America (Greenwich, Conn.: JAI, 1993)

D. G. Bromley and T. Robbins, "The Role of Government in Regulating New and Unconventional Religious," in Government Monitoring of Religions , ed. J. Wood (Waco, Tex.: Baylor University Press, 1993): 101-137

A. Carmella, "A Theological Critique of Free Exercise Jurisprudence," George Washington Law Review 60(1993):782-808

S. Carter, The Culture of Disbelief (New York: Basic Books, 1993)

C. Cochran, "Public/Private—Secular/Sacred," Journal of Church and State 29(1987):113-125

C. Cochran et al., "Public Policies and the Emergence of Religious Politics," Polity 19(1987):595-612

N. J. Demerath III and R. Williams, "A Mythical Past and Uncertain Future," in T. Robbins and R. Robertson (eds.), q.v . (1987): 77-90

R. Finke and L. Iannaccone, "Supply-Side Explanations for Religious Change," Annals 527(1993):27-39

E. M. Gaffney, "The Waco Tragedy," in Armageddon in Waco , ed. S. Wright (Chicago: University of Chicago Press, 1995): 323-358

P.E. Hammond and E. M. Mazur, "Church, State and the Dilemma of Conscience," Journal of Church and State 37(1995):555-572

D. Laycock, "The Remnants of Free Exercise," Supreme Court Review 1990 (Chicago: University of Chicago Press, 1991): 1-58

M. W. McConnel, "Religious Freedom at a Crossroads," in The Bill of Rights in the Modern State , ed. G. Stone et al. (Chicago: University of Chicago Press, 1992): 115-194

R. Neuhaus, The Naked Public Square (Grand Rapids, Mich.: Eerdmans, 1984)

N. Passas, "The Market for Gods and Services," in Between Sacred and Secular , ed. A. Greil and T. Robbins (Greenwich, Conn.: JAI, 1994): 217-240

J. Pfeiffer and J. Ogloff (eds.), "Cults and the Law," Behavioral Sciences and the Law 10, 1(1992)

J. T. Richardson, "Changing Times," Sociological Analysis 49(1988a):S1-S14

J. T. Richardson (ed.), Money and Power in the New Religions (Toronto: Mellen, 1988b)

J. T. Richardson, "A Social Psychological Critique of 'Brainwashing' Claims About Recruitment to New Religions," in D. G. Bromley and J. K. Hadden (eds.), Vol. B, q.v . (1993): 75-97

T. Robbins, "Government Regulatory Powers over Religious Movements," Journal for the Scientific Study of Religion 24(1985):237-251

T. Robbins, "The Intensification of Church-state Tensions in the United States," Social Compass 40 (1993):505-527

T. Robbins and J. Beckford, "Religious Movements and Church-State Issues," in D. G. Bromley and J. K. Hadden (eds.), Vol. A, q.v . (1993): 199-218

T. Robbins and R. Robertson (eds.), Church-State Relations (New Brunswick, N.J.: Transaction, 1987)

R. Robertson and J. A. Chirico, "Humanity, Globalization and Worldwide Religious Resurgence," Sociological Analysis 46(1985):219-242

L. D. Shinn, "Cult Conversions and the Courts," Sociological Analysis 53(1992):273-285

K. Sullivan, "Religion and Liberal Democracy," in The Bill of Rights and the Modern State , ed. G. Stone (Chicago: University of Chicago Press, 1992): 195-224

E. Tiryakian, "American Religious Exceptionalism," Annals 527(1993):40-54

F. Way and B. Burt, "Religious Marginality and the Free Exercise Clause," American Political Science Review 77(1983):654-665

R. Williams and N. J. Demerath III, "Religion and Political Process in an American City," American Sociological Review 56(1991): 417-431

S. Worthing, "Corporate Free Exercise," in Religion and the State , ed J. Wood, Jr. (Waco, Tex.: Baylor University Press, 1985): 167-184.

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