Establishment Clause and Exemptions

Michael, Rick, and others,

Following up on the previous exchange:  There have indeed been theories "percolating" for some time that exemptions to preserve the autonomy of religious organizations might rest on Establishment Clause principles of separation and non-entanglement -- which stem from the historical fact that established churches were not only supported, but were also regulated, by the government.   Principles of institutional separation and non-entanglement might survive even if one concludes that a general right of religious exemption under the Free Exercise Clause for individuals as well as institutions creates too great a risk of anarchy (see Employment Division v. Smith).  The idea of exemptions based on non-entanglement goes back in the modern case law at least as far as NLRB v. Catholic Bishop, 440 U.S. 490 (1979), where the exemption of parochial schools from collective-bargaining requirements with teachers was located in notions of autonomy and non-entanglement without reference to which 1st Amendment clause was involved.  You could say the idea even goes back to the entanglement prong of Lemon v. Kurtzman itself, since the theory for invalidating the state aid to religious schools in Lemon was that the aid was accompanied by regulations that interfered with the schools' autonomy.  403 U.S. 602, 619-20 (1971).  Some of the cases about internal church disputes also suggest that church autonomy from governmental involvement can rest on both Religion Clauses.  A relatively early article on this is Carl H. Esbeck,  Establishment Clause Limits on Governmental Interference with Religious Organizations, 41 Wash. & Lee L. Rev. 347 (1984).  At least one of the many recent cases protecting religious organizations from liability for terminating clergy or clergy-like employees grounds that protection in part in the Establishment Clause.  E.E.O.C. v. Catholic University, 83 F.3d 455, 467 (D.C. Cir. 1996).

Tom B.