Abstract
The Court's Free Exercise Clause decision in Smith and the Establishment Clause trilogy of Rosenberger, Agostini, and Mitchell underpin each Religion Clause with the twin principles of the prohibiting of targeting of religion (for burden or aid) and the permitting of equating religion with its analogous secular activity (for burden or aid). On the Free Exercise Clause side, if conduct is regulated when engaged in as a secular activity, it can be identically regulated even when engaged in as religious activity. On the Establishment Clause side, the symmetry is incomplete regarding aid to religious groups. If religion is provided aid along with other groups engaged in analogous secular activity with which it shares multiple secular characteristics, complete symmetry would require that no Establishment Clause violation occur. The Mitchell plurality provides complete symmetry, but the Mitchell concurrence does not. For the concurrence aid is permitted if (1) the aid qualifies as universal general services, (2) the aid is distributed in a true-private-choice program, (3) in a not-true-private choice program, the aid is not used by the recipient to further its religious mission, or (4) the aid is a tax exemption, which while not a true-private-choice program nonetheless is permitted.
Recommended Citation
Manns, Philip
(2001)
"Charting the Spectrum of Prohibited and Permitted Aid to Religion,"
Utah Law Review: Vol. 2001:
No.
2, Article 2.
Available at:
https://dc.law.utah.edu/ulr/vol2001/iss2/2