AboutMichael Troy Expertise I will answer general questions regarding freedom of speech, petition, or religion. I specialize in cases involving public employment or education, as well as issues related to campaign finance. But I can`t give specific legal advice involving specific cases you might have.
Experience As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious conent. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.
I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process.
Organizations Former Attorney for Center for Individual Rights.
Publications Washington Post
Washington Times
Education/Credentials J.D. from Univ. of Michigan Law School
Expert: Michael Troy Date: 10/11/2004 Subject: Establishment Clause v. Free Exercise Clause
Question Michal,
I am in a class in my high school (We the People) that specializes in the Constitution. In this class, we are seperated into units that deal with a specific part of the Constitution. My unit pertains to the Bill of Rights, and what it protects specifically. I was researching on the internet when I came across allexperts.com, and it seemed like you would be a good person to come to with questions. My question has to do with the establishment clause and the free exercise clause: how they come into conflict with each other, and what can be done to ease the conflict between them. What would be especially useful would be your take on what specific conflicts between the two would be (1 or 2 court cases would be great), and what you, as someone who has dealt with the larger govermental system in general, believe should be done to ease the conflicts that come up between the two. Your opinions in this matter would be greatly appreciated, thank you very much.
Alex DeLeon
Answer Hi Alex,
There was a time when there was no real conflict between the Establishment Clause and the Free Exercise Clause of the First Amendment. The idea behind those aspects of the Amendment was that private citizens should be permitted to hold whatever religious beliefs they want and to carry out the practices and rituals of their religion without government getting in the way.
As a supplement to that, the Amendment barred Congress from establishing any State religion, with the belief that compelling people to support a particular religion that they might oppose would be an unnecessary source of conflict.
These two principles came into more conflict as government became much bigger. One major step came about 50 years ago when the Supreme Court suddenly decided that the First Amendment applied to State governments despite the clear language that it only applied to the US Congress. Everson v. Board of Education (1974)
Beyond that step, government at all levels became more intrusive and indispensable to our private lives. This means that if government is not helping us, it actually may be hurting us. For example, say the government wants to run a program to pay Catholics to train to become Priests. Most would agree that program by itself would violate the establishment clause. However, say the government has a program that pays EVERYONE to go to college, but only on the condition that you NOT study to become a Catholic Priest. In that situation, you are in fact being punished for your personal religious choice by being treated in a worse way than everyone else.
Another expansion has been the Courts' decisions to equate accommodation of majority religious traditions with endorsement of religion. Government do not put up Manger scenes (crèches) at Christmas time because they are trying to convert people to Christianity. They do it because it makes the majority of voters happy and puts them in the "Christmas Spirit" and they spend more money. But the Courts have said that celebrating this religious aspect of our culture amounts to an "endorsement" of Christianity. Of course, the First Amendment also say nothing about government endorsement, but the Courts have gone on to equate endorsement with establishment of a State Religion.
Of course, the way to remove the conflicts would be to role back the level of government involvement in our lives, or to restrict the Establishment Clause's meaning to actual establishment of a State Religion. But that is never going to happen, so the court battles will continue. There is no clear dividing line so decisions will continue to go all over the place.
For a list of key religion cases, you may find this page helpful:
