Quiz #76 The Balance Between Free Exercise and Establishment Clause

If a State wants to create even greater separation between church and State than is already ensured under the U.S. Constitution is there any limitation on the State in doing this?   

 

(Scroll down for the answer)

 

Answer: Yes.  The State’s actions are limited by the Free Exercise clause.  Consider what the Supreme Court said in this regard in 2020. 

 

The Montana Supreme Court asserted that the no-aid provision serves Montana's interest in separating church and State “more fiercely” than the Federal Constitution.  393 Mont. at 467, 435 P.3d at 614. But “that interest cannot qualify as compelling” in the face of the infringement of free exercise here. Trinity Lutheran, 582 U.S., at ––––, 137 S.Ct., at 2024. A State's interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause ... is limited by the Free Exercise Clause.” Ibid. (quoting Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981)).

Espinoza v. Montana Dep't of Revenue, 207 L. Ed. 2d 679, 140 S. Ct. 2246, 2260 (2020).

 

Disclaimer: The Religion Law Quizzes are provided as a service to the bar. They are informal, non-binding hypothetical questions intended only for educational purposes. Nothing in the Quizzes is intended to be legal advice and they should not be relied upon as conclusive on any issue discussed therein.

 

HERE IS AN AI GENERATED SUMMARY OF TODAY’S PODCAST

 

 

Welcome to another episode of the Religion Law Podcast, hosted by Michael Fielding. This episode brings you Question 76 of our Religion Law Quiz series, exploring the extent of a state’s authority for imposing separation between church and state, beyond the parameters defined by the U.S. Constitution.

The episode discusses the Establishment Clause under the First Amendment, aimed at ensuring the separation between church and state and preventing any single religion from becoming the state religion. It addresses the question - can a state create an even more drastic separation between church and state, beyond the distance already defined by the Constitution? The answer to this is far more dynamic than a simple yes or no.

This deep dive intricately explores how the state's actions in this regard are indeed limited by the Free Exercise Clause of the Constitution. This phenomenon was highlighted in the Supreme Court's 2020 Espinoza decision, stating that a state's interest in achieving greater separation of church and state is limited by the Free Exercise Clause, demonstrating an inherent check and balance within the First Amendment itself.

Engagingly conveyed through the rubber band analogy, the podcast explains how the clauses work together to maintain balance. Just like the elasticity of a rubber band restricting the poles from going too far apart, these clauses subtly keep a check and balance between the free exercise and the establishment of religion.

The episode concludes with a contemplative commentary on the genius of the framers of the Constitution and how their understanding of human nature shaped distinct checks and balances. It signifies how the Constitution contributes to maintaining stability and fostering prosperity in the United States.

In the Religion Law Podcast, we aim to make complex legal concepts around religion accessible and engaging. Thank you for tuning in, and keep influencing for good.

Episode Transcript

(00:01):
Welcome to another episode of the Religion Law Podcast, where you learn about
religious freedom and other religion law-related topics through a short question-and-answer format.
I'm your host, Michael Fielding.
Let's see how you do on today's quiz.
Welcome to Religion Law Quiz number 76, numero 76.

(00:24):
In the interest of time today, we're going to keep this pretty short.
Let's just dive straight into the question.
If a state wants to create an even greater separation between church and state
than is already ensured under the U.S.
Constitution, is there any limitation on the state in doing this?

(00:47):
Hmm. That's an interesting question. Now, let's put that in a little bit more practical terms.
So we know that we have the Establishment Clause under the First Amendment,
and the Establishment Clause says that you have essentially a church over here
and the state over here, and we can't have a church become into state religion.

(01:12):
That's why we have the Establishment Clause, to keep a separation between the two.
And the Constitution creates some distance or some boundaries between that.
And so the Supreme Court is saying that if you have a state legislature,
and they say, we get it, we respect what the federal Constitution does, but guess what?

(01:33):
We want to go even further. further
so in other words you have maybe the
church and the state here imagine i've i have
my two hands together and and maybe they are like
just half an inch apart so there there's clearly a separation
but they're not really far apart and the state legislature comes in and says

(01:53):
guess what we want to impose a lot more of a barrier a lot more of the division
and so there is a very big or very far distance between state action and church action.
And the question is, is there any limitation on the state from doing this?

(02:15):
So essentially adding more requirement, adding more distance.
What do you think? What is the answer? Well, the answer is yes.
The state's actions are are limited, and they are limited by,
guess what, the free exercise clause of the Constitution.
Now, here's what the Supreme Court said in its 2020 Espinoza decision.

(02:37):
The citation will be in the show notes. The Supreme Court said,
quote, The Montana Supreme Court asserted that the no-aid provision serves Montana's
interest in separating church and state more fiercely than the federal Constitution. Quote,
But that interest cannot qualify
as compelling in the face of the infringement of free exercise here.

(03:00):
A state's interest in achieving greater separation of church and state than
is already ensured under the Establishment Clause is limited by the Free Exercise
Clause, close quote. vote.
Now, the takeaway, the interesting thing that we end up having here is you see

(03:20):
that the Supreme Court is recognizing that there is this inherent check and balance,
so to speak, within the First Amendment itself.
And that check and balance is that if a state wants to kind of really run one
direction and impose all sorts of regulations and rules so that they can say, hey,

(03:44):
we are making sure that there is absolutely no possibility of an establishment clause violation.
The Supreme Court is coming back and saying, sorry, you can't go that far because
the free exercise clause stops the state from doing that.
So you have essentially this check and balance. And I think,

(04:06):
as I'm thinking about this, just as I'm talking here, I think actually a good
analogy that we could use is that of a big rubber band.
And I have, you've seen them, they're kind of the brown rubber bands.
I use them all the time in work for wrapping, you know, just keeping papers together.

(04:28):
And there's some elasticity. plasticity. But the point here is that you have
both the establishment clause and the free exercise clause, they are within
this rubber band, so to speak.
So imagine you've got two poles or two sticks, and you have the rubber band
going around the two of them.

(04:48):
And it's this idea that you can maybe...
Push them further apart a little bit. But if you try to take one of the poles
or the sticks and really go to one extreme or one far distance,
the reality of the matter is the rubber band kind of pulls it back.
It stops it from going too far.
And that, I think, is actually a really good analogy of this check and balance

(05:12):
between the free exercise clause and the establishment clause.
They keep a check on one another. Like, you know, you could turn this around
and go in a different direction.
Let's say that somebody has some desire to, you know, just really run wild with
their free exercise actions.
And they say, well, I'm an office holder. And because I'm an office holder,

(05:35):
I can pray and I can do all these different things.
Well, the point here is that if somebody was doing that, suddenly,
they're going to start running into an establishment clause violation.
And so the Establishment Clause then acts as a competing check,
so to speak, on the Free Exercise Clause of the Constitution.
It's really ingenious how it's set up between one another.

(06:01):
And it helps this inherent check and balance is one of the beauties of our Constitution
because this keeps it functioning very well.
Well, now, all right, I'm going to make one very quick commentary,
and then we'll be done. Many years ago...
I was a young lawyer. I was driving to work. So I said, hey,
I'd never read the Federalist Papers.

(06:22):
And so I started listening to the Federalist Papers when I was driving into work.
And I will tell you the one thing that really, really stood out to me,
maybe above all other things, as I was listening to the Federalist Papers,
is that the framers of the Constitution,
and I would add those that also, when they adopted the Bill of Rights as well,

(06:43):
those framers, the people that were involved there, They inherently knew human nature.
And that is, I think, one of the ingenious things about our Constitution,
because there is human nature to do certain things and go certain ways.
And the Constitution has built into it this check and balance.

(07:06):
And it's just when you contemplate it and think about just what our human characteristics
and our tendencies are, the Constitution helps keep us in check and keeps us functioning.
And that's why I think it's just such a great document is because it's created
the framework to where we've had the United States of America.
And there's been incredible prosperity, incredible growth. It has become incredible

(07:29):
technological development.
And all of that, or a lot of that stems from the fact that we had stable government,
a a stable place to be, and people could prosper.
All right, so I just had to give that one little side commentary,
but it's just one thing that's always stood out to me.
All right, well, that does it for today. Hopefully, you found this helpful.

(07:50):
I will see you next on the next Religion Law Quiz.
Thank you for listening to today's episode. Remember, Religion Law Quizzes are
for educational purposes only and are not intended to be relied upon as legal advice.
If you have found this episode to be helpful, please share it and leave a review.
Until we meet again, keep being an influence for good.

(08:14):
Music.