The Religion Clauses: Reconciling Accommodation and Separation
In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Clearly, the religion clauses are intended to severely restrain Congress's power to legislate in the area of religion; but are the restrictions on Congress in this area absolute, or limited? More specifically, what restrictions are placed on Congress? When is it that a law can be said to touch on religion; is it only when the law mentions religion, or are there other laws that might fall within the limitations imposed by the religion clauses? And how are the sometimes seemingly contradictory commands of the Establishment and Free Exercise clauses to be reconciled? Finally, and most importantly, how does a structural approach to constitutional interpretation contribute to our understanding of these issues? These are the questions explored in this chapter.
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