Brownstein on Keeping the Free Exercise and Establishment Clauses in Balance

Alan E. Brownstein (University of California, Davis) has written an interesting article, "The Religion Clauses and Mutually Reinforcing Mandates," Cardozo Law Review, Vol. 32, 2011 available on SSRN.

Here is the abstract:

Legal commentary often describes the Free Exercise Clause and Establishment Clause of the First Amendment as either being in tension with each other or as serving overlapping and redundant purposes. Both of these perspectives commonly share a willingness to dispense with or subordinate the requirements of one clause while calling for the rigorous implementation of the other. This Essay suggests a different and overlooked dimension of the relationship between the two clauses: in important ways each of the religion clauses supports and reinforces the justification for and rigorous enforcement of the other. Correspondingly, the dilution of one clause undermines the arguments for taking the other clause seriously. To some significant extent, the religion clauses stand or fall together

These reinforcement and dilution connections cover a range of justifications for, and applications of, the two clauses. Establishment Clause constraints on state subsidies of religious institutions and activities support the value formation justification for protecting free exercise rights. The holding of Employment Division v. Smith, eliminating constitutional protection against neutral laws of general applicability, undermines the taxpayer liberty justification for limiting state aid to religious institutions. Free exercise exemptions and accommodations standing alone unacceptably advantage religion in the market place of ideas, and establishment clause limits on government support for religious organizations and beliefs standing alone unacceptably disadvantage religion in the market place of ideas. The rigorous enforcement of each clause (or neither clause) is necessary to balance out these distorting impacts. This essay identifies and discusses these and other ways in which the arguments supporting or undermining each of the religion clauses reinforces or weakens the other.

And from the essay:

In this Essay, I argue that there is an additional and important relationship between the two clauses that is often neglected in legal commentary. I suggest that the Free Exercise Clause and Establishment Clause support and reinforce each other in critical ways. The justifications for the rigorous enforcement of one Religion Clause often substantially reinforce the arguments for the rigorous enforcement of the other, and the dilution of one clause may in a corresponding manner undermine the arguments for taking the other clause seriously. [FN15] More specifically, I think the arguments for a rigorously enforced Establishment Clause doctrine support a reading of the Free Exercise Clause mandating greater protection of religious practice than is provided under Employment Division v. Smith. From the alternative perspective, the arguments supporting the limited understanding of the Free Exercise Clause endorsed in Smith undermine the justifications for a rigorously enforced Establishment Clause.
The normative attitude supporting this perspective assigns considerable value to the right to practice one's faith free from state interference while acknowledging that the affirmative support of religion by government risks the sacrifice of important liberty and equality interests of both believers and non-believers. Moreover, it doubts the viability of interpretations of the Religion Clauses that subordinate one clause to the other. Ultimately, the result of a quest for constitutional victory for either free exercise rights or Establishment Clause guarantees standing alone may be the rejection of both clauses as a limit on government action--leaving most church-state issues to political resolution and majoritarian control.
If this thesis is correct, commentators supporting a rigorously enforced Free Exercise Clause but a diminished Establishment Clause, or vice versa, are likely to discover that their critiques of one clause have severely undermined the other. Rather than promoting the values affirmed by one clause over the interests protected by the other, they risk rendering both clauses dysfunctional. Thus, the correct constitutional choice may not be one between free exercise rights and Establishment Clause mandates, but rather a choice between a rigorously enforced understanding of both of the Religion Clauses or the judiciary's failure to take either clause seriously as a limit on government conduct.

Brownstein basically argues that we are Constitutionally required to treat religion "differently," and that to do so fairly, we should have strong accomodations for religion under the Free Exercise clause and sharp limits on government religious expression or support of religious groups or institutions under the Establishment Clause.  Several difficult questions remain unanswered under this approach, not least of which is the question: what is religion?