excessive entanglement

[Thomas C. Berg]

The other use of entanglement in Lemon -- which was really
the point for which Burger cited Paul Freund (his 1969
Harvard article) -- was so-called "political entanglement,"
i.e. political division along religious lines over what
schools to aid and how much they should get.

That variety of entanglement is not subject to the charge
that it makes a free exercise issue into an establishment
one.  But it has its own severe problems -- for example,
isolating religion from legitimate political debate -- which
have been well detailed by Ed Gaffney, Doug Laycock, and
others. It has been absent from the case law pretty much
since the mid 1980s.

Tom Berg



On Fri, 10 Sep 1999 11:33:32 -0500 Douglas Laycock
<dlaycock at MAIL.LAW.UTEXAS.EDU> wrote:

>         The first appearance of excessive entanglement in the Supreme Court is
> Walz v. Tax Comm'n (1970), where the point is that taxing churches would
> lead to entanglement, and that the result might be a bigger set of
> church-state problems than any implicit subsidy in tax exemption.
>
>         It has the same conceptual problems there as in the school aid cases; a
> burden on the church is conceptualized as an establishment clause problem
> instead of a free exercise problem.  But the result is to protect the
> church from that burden rather than to deprive it of a benefit.
>
>         A year later, entanglement gets combined with the neutral purpose and
> effect formulation from the school prayer cases to form the three-part
> Lemon test.
>
>
>
>
> At 03:36 PM 09/09/1999 -0600, you wrote:
> >        -----Original Message-----
> >        From:   Shawn F. Peters [SMTP:sfpeters at FACSTAFF.WISC.EDU]
> >        Sent:   Thursday, September 09, 1999 6:42 AM
> >        To:     RELIGIONLAW at listserv.ucla.edu
> >        Subject:        Re: Lemon and anti-Catholicism
> >
> >        ... (Ball had even worse things to say about Paul Freund and the
> >genesis of
> >        "excessive entanglements," but that's probably fodder for another
> >discussion.)
> >
> >
> >
> >
> >I'd be interested in hearing more about the origins of excessive
> >entanglement, since the most commonly deployed aspect of it in aid cases -
> >regulation/oversight that inhibits religion -- baffles me.  It creates a
> >conflict between the effects and entanglement rules (i.e., the regulation
> >that may be necessary to ensure secular  effect could be the very thing that
> >invalidates the aid), which seems hard to justify except on paternalistic
> >grounds - i.e., we won't permit religious groups to make Faustian bargains.
> >(The "state involvement with decision-making in religious institutions"
> >concern might also be relevant, but it does not seem to be driving the
> >analysis in cases, and to the extent that the concern is that involvement
> >will inhibit religion for the regulated institution, also raises the
> >paternalism problem).
> >And as is also true of the "primary effect of inhibiting religion" aspect of
> >the rule, it seems to confuse EC and FE roles and, at least in theory (since
> >the Lemon test is disjunctive), to create a conflict with Smith.  Could Mr.
> >Smith make out an Establishment Clause claim against any
> >regulation/oversight relating to when and how peyote may be used, as an
> >excessive entanglement, even though the state is not paying for the peyote?
> >Presumably the Court would say that is not an EC case, but has it ever
> >explained what exactly distinguishes state action inhibiting religion that
> >is an EC problem from state action inhibiting religion that is a FE problem
> >(or non-problem, post-Smith)?  Could it easily do so?  Perhaps I am missing
> >something obvious, but in any case will be grateful for any enlightenment,
> >or citations to enlightening writings, that anyone can offer.
> >
> >Jim Dwyer
> >
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>         512-232-1341 (phone)
>         512-471-6988 (fax)
>         dlaycock at mail.law.utexas.edu

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu