San Diego Law Review


H.E. Baber

Document Type



The First Amendment to the U.S. Constitution both prohibits the establishment of religion and guarantees its free exercise. There is, however, a tension between the Free Exercise Clause and the Establishment Clause, which has been understood to erect a “wall of separation” between church and state. Prima facie, the Establishment Clause prohibits the state from providing special benefits to institutions or individuals in virtue of their religious affiliations or convictions. The Free Exercise Clause, however, is cited in support of accommodations for individuals who, because of their religious commitments, cannot in good conscience conform to laws or regulations. This seems to breach the wall of separation: arguably, to the extent that the state provides special accommodations to individuals in virtue of their religious beliefs, it tacitly endorses them.

I suggest, first, that we can square the wall-of-separation doctrine with the Free Exercise Clause if we understand religion in the minimalist sense—according to which religious freedom is nothing more than a license to hold beliefs about supernatural beings and states of affairs and to participate in religious rituals that are harmless and therefore not subject to legal restrictions. Secondly, I note that even if, as I suggest, we reject conscience per se, whether religiously informed or not, as a reason for special accommodations, we can still support exemptions from some legal obligations and prohibitions for conscientious individuals on the grounds that, for them, compliance would impose an undue burden: conscience clauses, I suggest, may be understood to be a special case of hardship exemptions. Finally, and perhaps most controversially, I argue that public support for religious displays and ceremonies does not violate separation of church and state.