I hope this will be my last week on freedom of religion, so I can finish this series of blogs on the First Amendment before mid-November. There are basically three different ways in which legal scholars and the courts approach the issue of establishment of religion.
- The first of these is called the “Strict Separation” theory;
- The second is called the “Religious Neutrality” theory, that is that the government should be neutral as regards religious matters; and
- The third is the “Accommodation” theory, which holds that, in a free society, the church, the state, and different religious groups must accommodate one another.[1]
In this blog, I’ll cover these three theories, each with its proponents.
Strict Separation Theory
The first of these theories is sometimes referred to as strict separation. I introduced this theory last week, noting that the term “wall of separation” was introduced into constitutional theory by Justice Black.[2] One of the problems with having a flare for the memorable phrase, as Jefferson did, is that the phrase can take on a kind of legitimacy it was never intended to have. That’s exactly what’s happened to the wall of separation theory. In the abstract, it sounded pretty good. In reality it wouldn’t work. From the very beginning, the court has had to deal with the problem of how to balance the various interest at stake where religion comes into contact with the state.
In my opinion, and it’s only an opinion, one problem with the separation theory today is that secular humanism, which functions as a kind of religion for many people, is not thought to be subject to the wall of separation. In fact, it forms the basis of most public education, a great deal of public policy, and is the subject of a great deal of conflict in our society. It simply is not possible to protect, for example, the public school systems in the way we traditionally did because of this development. What is occurred is the gradual separation of religious people of all kinds of religious traditions from public education. I’m not smart enough to know how this can be healed, but one can easily see. It has not been a good thing for our national cohesion, nor has been a good thing for the education of our young people.
Neutrality Theory
The second approach to the relationship between the state and religious groups is referred to as neutrality theory. This theory basically tries to take the position that governments cannot favor one religion or secularism over any other position. This was the position that New Jersey was trying to take when it allowed all religious groups to be covered by the payment system for transportation. They were trying to be neutral. The case of Lynch v. Donnelly can be used to illustrate this approach. Lynch v. Donnelly, 465 U.S. 668 (1984), held that the inclusion of a crèche (nativity scene) in a city’s annual Christmas display does not violate the First Amendment’s Establishment Clause.[3] In a 5-4 decision, the court held that the inclusion of a nativity scene in a public place together with other religious and executor displays what did not amount to an establishment of religion. In response to this approach, and because of the closeness between Hanukkah and Christmas, many public areas contain a variety of religious symbols, including Muslim symbols, in Christmas displays.
The court based its reasoned that the purpose of the Establishment and Free Exercise Clauses of the First Amendment was to prevent, as far as practical, the intrusion of religious groups and the secular state into the areas largely the province of the other. At the same time, however, the Court recognized that “total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.” Thus, in Establishment Clause cases, the Court is generally called to reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [4]
In my view, the court was wise in taking the approach it took. However, everyone feels about the specifics of the case, it can be seen that in principle the court is recognizing that a complete separation of religion and public life is neither possible nor desirable. In fact, it’s inevitable that people who are of different religious face living in close proximity to one another, but will be in touch with religious views of other people, and also the views of the state.
In most cities, many practices, including the practice of including Chris scenes, Hanukkah, candles, and other religious displays as part of Christmas decorations is not so much the advocation of a religious view, or the states attempt to enforce a religious view, as it is a reflection of the fact that we are all citizens of the same community inhabiting the same community space. And such, even if we are not, for example Jewish, we can appreciate the Jewish holiday and its importance for Jewish people. The same as true of other religious groups.
First amendment was not designed to eliminate religious observance from public life,; it was designed to prohibit the secular state from enforcing one particular view or p(increasingly important) no religious view at all. An observation that I think is important: second or humanism is not a religion. It’s the absence of religion. It’s a religion of no religion at all. Sandra Day O’Connor, in her concurring opinion in Lynchfield Donnelly makes this precise point when she says:
The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive … entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by non-adherents of the religion, and foster the creation of political constituencies defined along religious lines. …The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message…[5]
The best way to understand justice O’Connors’ concurring opinion is that the establishment clause cannot be used as a cloak by a secular state to prohibit religious views of any kind.
Accommodation Theory
This leads to a discussion of the third and last approach: Accommodation. The final approach is sometimes called and accommodative approach to First Amendment rights. Under this approach, the Court interprets the Establishment Clause understanding the importance of religion in society and overturns state actions only if it establishes a religion, courses participation in some way, or favors one religious view over another. Justice Kennedy has been an example of the way this approach might work.
In Lee v. Weisman, the Court ruled that having the school principal select a clergyman to deliver a prayer at graduation violated the Establishment Clause’s prohibition against state involvement in establishing religion.[6] This case involved the practice of several other public middle and high school principals in Providence, Rhode Island, Robert E. Lee, a middle school principal, of inviting clergy to speak at graduation ceremonies Daniel Weisman’s daughter, Deborah, was among the graduates. Hoping to stop the rabbi from speaking at his daughter’s graduation, Weisman sought a temporary restraining order in District Court – but was denied. After the ceremony, where prayers were recited, Weisman filed for a permanent injunction barring Lee and other Providence public school officials from inviting clergy to deliver invocations and benedictions at their schools’ ceremonies.
The Prayer was as follows:
“0 God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.
“Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.
“The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly.
“We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion.
When the Court of Appeals affirmed a District Court ruling against the schools, Lee appealed to the Supreme Court. At least one scholar believes that Justice Kennedy, writing for the majority, articulated an approach close to this.[7]In fact, it is justice Scalia, writing in dissent, who articulates what an accommodative approach might look like in practice, when he says:
…the Establishment Clause must be construed in light of the “[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage.” That opinion affirmed that “the meaning of the Clause is to be determined by reference to historical practices and understandings.” It said that “[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause.”[8]
I hope to write a longer blog on this case and other cases along these lines. The point is simple: the First Amendment was never designed to eliminate religious practices that were part of our cultural heritage from public life. This is an invention of the modern secular state and its attempt to create schools, public spaces, and even offices of government to which religion is excluded in its entirety. This would eliminate vast areas of our cultural heritage.
The most obvious example is the removal of the Ten Commandments from public buildings. Displaying the Ten Commandments in public buildings doesn’t establish either the Jewish or the Christian religion in America. Rather, it reflects that our religious tradition begins with Jewish law. I know very few people of any religious heritage who believe it would be wise to institute Jewish law in detail. We do, however, recognize its importance in our history and legal tradition. Other elements have played an equally important role. For example, Roman law and English common law have had a much more significant and pervasive influence on how the American legal system works. The point is that we should honor the roots of our constitutional heritage. That doesn’t mean we’re establishing a particular religion or endorsing a particular view of our legal history.[9]
Levy Wiseman shows how “accommodation theory” can mask hostility toward religion in public life. I included the prayer at the beginning of this section to show that it is not specifically Christian or religious and refers only to God. It does not identify God as Jewish or Christian. Moreover, nothing in the prayer would offend a reasonable person. The prayer simply expresses the parents’ and graduates’ gratitude for the graduation, their joy in the occasion, and their thankfulness for being able to attend. It seems likely that people of nearly any religion—or no religion at all—would share these feelings at graduation. If this prayer violates the Establishment Clause, it is difficult to imagine any former religious observance that would not violate the First Amendment.
Conclusion
I realize I’ll need to discuss specific cases in this blog series at some point, but I’d like to save that for later. For now, I’m keeping this as a simple introduction—and I’m ready to move on to another area of interest! Next week, I’ll be talking about the Right of Public Assembly.
In the meantime, I hope readers of every persuasion will see why I believe our society can prosper when we embrace a view of the church-and-state relationship that recognizes how closely our religious perspectives and public life are connected. In a multi-religious society, that means making room for people to express religious views we may personally disagree with. For example, our Muslim neighbors may come from countries with Sharia law and may hold different views from ours on what should be written into law. They should still be free to share those views in public life. That doesn’t mean those views will become law; it simply means they have the right to argue that Sharia law has something to offer our legal system. This is why I have been arguing for what I call “A Tolerant Public Square,” in which religious views are considered alongside other views in the search for a just society.
Copyright 2026, G,,Christopher Scruggs, All Rights Reserved
[1] I need to give praise where praise is due for the work of Erwin Chemerinsky, in his book Constitutional Law: Principles and Policies 3rdedition (New York NY: Aspen Publishers, 2006). It is intended as a comprehensive introduction to the Constitution for serious students. I do not necessarily agree with Chermerinisky’s conclusions, but have found his work thought provoking. In particularly, as will be seen below, I believe the Accommodation Theory in practice is a flawed approach.
[2] Everson v. Board of Education of the Township of Ewing, 330 U. S. 1 (1947).
[3] Lynch v. Donnelly, 465 U.S. 668 (1984).
[4] Id.
[5] Id. Internal citations have been admitted for readability. I also corrected non-adherence in the way we would normally spell it.
[6] Lee v. Weisman, 505 U.S. 577 (1992).
[7] Constitutional Law: Principles and Policies.
[8] Id.
[9] This is an area that is currently in litigation. The court entered this legal quagmire, which has since become the subject of many cases seeking ways to continue recognizing our legal heritage. It’s too early to tell how the cases will turn out; however, one of the most important cases currently on appeal involves a Texas law (Nathan v. Alamo). I’ll try to read it, figure out what it means, and report later.