The Law of Church and State: Developments in the Supreme Court Since 1980 (CRS Report for Congress)
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| Release Date |
Aug. 15, 2002 |
| Report Number |
98-65 |
| Authors |
David M. Ackerman, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
The religion clauses of the First Amendment provide that "Congress shall make no law
respecting
an establishment of religion, or prohibiting the free exercise thereof ...." Prior to the past two
decades the Supreme Court frequently construed these clauses to create, in Thomas Jefferson's oft-
quoted metaphor, a "wall of separation between church and state." However, many of the Court's
decisions precipitated substantial public discontent and spawned organized efforts to overturn or
otherwise alter its decisions. Particularly since Ronald Reagan was elected to the Presidency in
1980, those efforts have been increasingly successful.
That election has proven to be a critical turning point, because President Reagan and his
successor, President Bush, were able to replace more than half of the Justices on the Supreme Court
during their terms. President Reagan elevated Justice Rehnquist to Chief Justice and appointed
Justices O'Connor, Scalia, and Kennedy, while President Bush appointed Justices Souter and
Thomas. Not all of these appointees have fulfilled the expectations of the Presidents who appointed
them, but they have led to vigorous debates on the Court about the meaning of the religion clauses
and to a church-state jurisprudence that increasingly loosens the constitutional constraints on
government action that affects religion.
During the past two decades the Court has been a willing forum for the debate over the proper
relationship between government and religion. From the fall of 1980 to the present the Court has
handed down 59 decisions on issues of church and state -- more than in any previous comparable
period. In many of its decisions the Court has been sharply split. But the changes in the Court's
composition have had a demonstrable effect: The Court has substantially narrowed the scope of the
free exercise clause as a constraint on government action and it has begun to recast its establishment
clause jurisprudence as well. On both clauses the Court's interpretations are now giving government
greater discretion than formerly to take actions that affect religious practices and institutions, both
positively and negatively. Nonetheless, the Court remains sharply divided on the interpretation and
application of the religion clauses, and the outcome of particular cases is often unpredictable.
In sum, the period since 1980 has been a profoundly important time for the law of church and
state in the Supreme Court. The arguments both on and off the Court about the proper relationship
of government and religion have been spirited and extensive, and the Court has issued dozens of
rulings on specific issues. This report summarizes the doctrinal debates and shifts on the religion
clauses that have occurred on the Court during this period. It summarizes and examines as well the
legal effect of all of the decisions the Court has handed down concerning church and state since
1980. An Appendix lists these decisions and how each of the Justices voted. The report will be
updated as new decisions are rendered by the Court.
