The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O’Connor

The Conservative as Liberal: The Religion Clauses, Liberal Neutrality, and the Approach of Justice O’Connor

Donald L. Beschle *

The past few years have seen a flurry of litigation involving the reli gion clauses of the first amendment. The Supreme Court has spoken on the subject as frequently as it did during the 1960s, when it created the current legal framework for dealing with claims under the establishment and free exercise clauses. But the recent cases, while numerous, have contributed little to the development of first amendment thought. Although individualjustices have suggested new approaches, the Court has generally confined itself to measuring the facts before it against ex isting analytical yardsticks.

The continued use of a particular framework for analysis may be

taken as evidence of its essential soundness. However, there is reason to believe that in the case of the religion clauses it more clearly reflects the Court’s failure to create satisfactory alternatives, despite the need for such alternatives. The dominant religion clause tests, particularly for the establishment clause, have been easy targets for academic critics and judges alike.

The principal fl.aw in establishment clause thought is the acceptance of “separation” of church and state as the clause’s ultimate goal. Given the ways in which both institutions have evolved in the two centuries since Jefferson’s use of the term, separation of church and state is.simply impossible. An unrealistic goal is