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

The Law of Church and State:
U.S. Supreme Court Decisions Since 2002
Updated March 14, 2008
Cynthia Brougher
Legislative Attorney
American Law Division

The Law of Church and State:
U.S. Supreme Court Decisions Since 2002
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 David M. Ackerman
(last updated in 2002). It will be updated as the Supreme Court renders relevant new

In troduction ..................................................1
2003 - 2004 Term..............................................2
Elk Grove Unified School District v. Newdow....................2
Locke v. Davey............................................4
2004 - 2005 Term..............................................6
Cutter v. Wilkinson.........................................6
McCreary County v. American Civil Liberties Union..............7
Van Orden v. Perry........................................8
2005 - 2006 Term.............................................10
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal......10
2006 - 2007 Term.............................................11
Hein v. Freedom from Religion Foundation....................11
Conclusion ..................................................14

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

1 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.
2 See Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).
3 See Lee v. Weisman, 505 U.S. 577 (1992); Santa Fe Independent School District v. Doe,

530 U.S. 290 (2000).

4 See Lynch v. Donnelly, 465 U.S. 668 (1984); see also Capitol Square Review and
Advisory Board v. Pinette, 515 U.S. 753 (1995).

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 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 fact-specific 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).
2003 - 2004 Term
Elk Grove Unified School District v. Newdow. 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-

5 See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
6 See Employment Division v. Smith, 494 U.S. 872, 879 (1990).
7 See Exec. Order Nos. 13198, 13199, 13279, 13280, 13342, 13397.
8 See the Personal Responsibility and Work Opportunity Reconciliation Act, P.L. 104-193,
Title I — Block Grants for Temporary Assistance for Needy Families, § 104.
9 See the Consolidated Appropriations Act, 2004, P.L. 108-199, Title III — D.C. School
Choice Incentive Act of 2003, §308(d).

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 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

10 Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004).
11 Id. at 16-18.
12 See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).
13 See Allen v. Wright, 468 U.S. 737, 751 (1984).
14 See Newdow v. U.S. Congress, 313 F.3d 500, 502 (9th Cir. 2002).
15 See Elk Grove, 542 U.S. at 31 (Rehnquist, C.J., concurring).
16 Id. at 37 (O’Connor, J., concurring).
17 Id.

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
Locke v. Davey. 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.
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 chosen20
path of education interfered with his Free Exercise rights. 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

18 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.
19 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
Henry Cohen.
20 Locke v. Davey, 540 U.S. 712, 715-718 (2004).
21 See Mueller v. Allen, 463 U.S. 388, 399-400 (1983); Zelman v. Simmons-Harris, 536 U.S.

639, 652 (2002).

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 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

22 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
23 Id.
24 See Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. Yoder, 406 U.S. 205 (1972).
25 Locke, 540 U.S. at 720-21.
26 Id.
27 Id. at 725.

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
2004 - 2005 Term
Cutter v. Wilkinson. 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 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 of32
religious practices.”
The Court noted that, as a part of protecting religious liberty guaranteed by the
First Amendment, the government sometimes is required to facilitate and

28 Id. at 727.
29 Id. at 728-32.
30 42 U.S.C. § 2000cc et seq.
31 Cutter v. Wilkinson, 544 U.S. 709 (2005).
32 Id. at 714.

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
McCreary County v. American Civil Liberties Union. 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,

33 Id. at 721.
34 Id. at 722.
35 Id. at 726.
36 McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 851-56
37 Id. at 850-851.

it violates that central Establishment Clause value of official religious neutrality.”38
The Court clarified that the purpose prong of the Lemon test was 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.
Van Orden v. Perry. 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 not41
reach a consensus in its reasoning.
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

38 Id. at 860.
39 Id. at 862.
40 Id. at 893.
41 Van Orden v. Perry, 545 U.S. 677, 681-83 (2005).
42 Id. at 686.
43 See id. at 686-88.

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
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 non-religion.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

44 Id. at 690.
45 Id. at 691.
46 Id. at 699.
47 Id.
48 Id. at 700.
49 Id. at 710.
50 Id. at 717, 712.

will of a divine being is the source of obligation to obey the rules, including the
facially secular ones.”51
2005 - 2006 Term
Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. 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 Exercise52
Clause. 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 Exercise Clause
generally did not protect individuals who broke generally applicable laws while54
practicing their religion. 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

51 Id. at 738.
52 494 U.S. 872 (1990).
53 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 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 David M. Ackerman, at 5-9.
54 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.
55 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.
56 Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, 546 U.S. 418 (2006).

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 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
2006 - 2007 Term
Hein v. Freedom from Religion Foundation. 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).

57 Id. at 425-26.
58 Id. at 432.
59 Id. at 432-33.
60 Id.
61 Id. at 436-37.
62 392 U.S. 83, 88 (1968).

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
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 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

63 See Exec. Order No. 13,199 (January 29, 2001).
64 Exec. Order No. 13,199, Section 1.
65 Hein v. Freedom from Religion Foundation, 127 S.Ct. 2553, 2562 (2007).
66 Id. at 2563.
67 Id. at 2566, quoting Valley Forge Christian College v. Americans United for Separation
of Church and State, 454 U.S. 464 (1982) (internal quotation marks omitted); see also
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228 (1974).
68 Id. at 2568 (citations omitted).
69 Id. at 2567, quoting Lincoln v. Vigil, 508 U.S. 182, 192 (1993).

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 could accomplish through the exercise of discretion exactly what Congress
cannot do through legislation, Establishment Clause protection would melt away.”76

70 Id. at 2568.
71 Id. at 2569.
72 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.
73 Id. at 2579.
74 Id. at 2581.
75 Id. at 2584.
76 Id. at 2586.

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 anti-establishment 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.

77 Locke, 540 U.S. at 719.