If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.
Although separationism helps both church and state, our Constitution does, and should, permit some dialogue between the two, not in the sense of permanent, open-ended connections, but in the sense of minute, almost case-specific accommodations that reflect the close fit between human nature and religion. To support this argument, I point out in Part II of this Article that a variety of somewhat inconsistent sentiments underlay the Religion Clauses at the time of their adoption and that one of these sentiments was a desire to protect authentic, private religious growth, with or without officially established religion. Although this may not be apparent from modem interpretation of the Establishment Clause, it follows readily from the fact that many of the people who originally supported the First Amendment also supported established religions in their home states. The Establishment Clause only prevented Congress from establishing a religion. Given this predicate, an interpretation is faithful to much, if not most, of the original intent of the Clauses if it preserves the freedom of the individual to grow along authentic religious lines, irrespective of the state's position on religion. A contrary interpretation would have to ignore much of that original intent. In this Part, I also note that the history of the United States—especially the early history—contains abundant examples of nondenominational “establishments” by the federal government, as well as both nondenominational and overtly denominational establishments by the states. This, I note, lends further support to the argument that the Establishment Clause did not originally focus upon strict separation.
In Part III, I discuss modem Establishment Clause doctrine, focusing on the formal, separationist dictum of Everson v. Board of Education of Ewing and the relatively formalist, three-part test of Lemon v. Kurtzman, under which a law is unconstitutional if its purpose or primary effect is to promote or inhibit religion or if it fosters excessive entanglements between church and state. I argue in this Part that Lemon, Everson, and similar decisions have not succeeded in resolving the ambiguity created by the founders. In fact, as I argue in this Part, the Supreme Court's failure to produce and to adhere to a coherent separationist interpretation of the Establishment Clause—or any formalist interpretation of that provision—demonstrates the deficiency of such rules.
In Part IV, I discuss with approval some of the contextual approaches to the Establishment Clause that have been advocated by Justices O'Connor and Kennedy and by such commentators as Alan Schwarz and Michael McConnell. Drawing on nonlegal sources, I also suggest in this Part that, as a psychological and theological matter, formal separationist rules may compromise important principles of religious freedom and disserve at least some portions of the populace. I conclude in this Part that the Establishment Clause is best implemented by a contextual approach to the proper relationship between church and state and that a law should be deemed to violate the Establishment Clause only if it interferes with authentic religious development or if it actually constitutes sponsorship of a denomination. After making this claim, I then discuss A.A. in Part V, arguing that, although it sufficiently resembles a religion to trigger the Establishment Clause, the government ought to be able to incorporate A.A. into its activities, albeit with some limitations, without running afoul of the Constitution. I then apply my analysis concerning A.A. to several court decisions in which the issue has been presented.
|Original language||American English|
|Journal||University of Cincinnati Law Review|
|State||Published - Jul 1 1997|