‘Play in the joints’ in the religion clauses

Tuesday, June 26, 2007

Abstract: The religion clauses may be thought of as lying on a spectrum, with one extreme being total government accommodation of religion and the other being total separation between government and religion. These locations delineate the minimum requirement for regulations to pass constitutional standards. Laws are bound on one side by the restriction that they may not “respect … an establishment of religion” and on the other that they may not “prohibit the free exercise” of religion. The Supreme Court has used a number of tests to determine the precise location of the religion clauses along this spectrum.  Once the location of the “joints” has been determined, the proper relationship between them must be resolved. The Court has utilized essentially three approaches to elucidate this relationship.

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