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60 Geo. Wash. L. Rev. 685 (1991-1992)
Accommodation of Religion: An Update and a Response to the Critics

handle is hein.journals/gwlr60 and id is 693 raw text is: Accommodation of Religion: An Update
and a Response to the Critics
Michael W. McConnell*
For decades conflicts over the Religion Clauses of the First
Amendment were mired in slogans and multipart tests that could be
manipulated to reach almost any result. More recently, the
Supreme Court has moved to bring greater clarity (leave for the mo-
ment whether it has brought greater wisdom) to this confusing area
of the law. This movement has been explicit in the case of the Free
Exercise Clause, where the Court has jettisoned balancing and
adopted a position of formal neutrality toward religion.' Currently,
under the Free Exercise Clause, the government has met its obliga-
tions if it has pursued its secular policies without reference or re-
gard to religion-even if the exercise of a religion is thereby
seriously disadvantaged, or even destroyed.2 This movement has
been only implicit in the case of the Establishment Clause, where
the Court still purports to follow its ambiguous three-part Lemon
test.'3 But it is increasingly evident that the Lemon test is largely
* Professor of Law, University of Chicago Law School. The Author wishes to
thank the Russell Baker Fund and the Class of '49 Dean's Discretionary Fund for finan-
cial support during the preparation of this Article.
1. See Employment Div. v. Smith, 494 U.S. 872 (1990).
2. See Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 451
(1988) (upholding government action that the Court admitted would have devastating
effects on a minority religion).
3. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (First, the statute must have
a secular legislative purpose; second, its principal or primary effect must be one that
neither advances nor inhibits religion; finally, the statute must not foster 'an excessive
government entanglement with religion.' (citations omitted)).
March 1992 Vol. 60 No. 3


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