Federalism based Establishment Clause arguments in RLUIPA case

[A.E. Brownstein]

Has anyone given any thought to the federalism-based Establishment clause 
arguments raised by Virginia in seeking cert in Bass v. Madison and which 
the Court may well consider in its review of Cutter v. Wilkinson?

Virginia argues that the federalism purpose of the Establishment clause -- 
"to protect the States against any federal effort to interfere with state 
religious policies" -- remains intact, even after incorporation. At least 
it remains intact with regard to the authority the state retains "to make 
policy choices in the 'play in the joints' between what the Establishment 
clause prohibits and what the Free Exercise Clause requires." Virginia 
argues that this prohibits federal interference with state decisions 
regarding constitutionally permissible but not required accommodations of 
religion.

If the Court accepts this argument, doesn't this analysis extend 
considerably beyond exempting religious practices from neutral laws of 
general applicability? Wouldn't this principle prohibit federal 
interference with any state "play in the joints" decision. Thus, the 
federal government could not require the states to include religious 
individuals or organizations in funding programs (such as the scholarship 
program at issue in Locke v. Davey, or the funding of religious 
nongovernmental providers in state welfare programs) unless the 
Constitution prohibited the exclusion of religious organizations and 
individuals from such funding programs. And the language in Charitable 
Choice legislation guaranteeing religious organizations control over the 
definition, development, practice and expression of their religious beliefs 
and prohibiting state governments from requiring a religious organization 
to alter its form of internal governance or to remove religious art, icons, 
scripture or other symbols would be unenforceable under the Establishment 
Clause -- unless it was constitutionally mandated. Am I right on this or is 
there some reason why the principle prohibiting federal interference with 
state religious policies should be limited to religious exemptions from 
neutral laws of general applicability -- and not apply to other 
constitutionally permissible state choices regarding the relationship 
between church and state.

Virginia's second argument based on Estate of Thornton v. Caldor suggests 
that government violates the Establishment Clause if it attempts to lift 
burdens on the exercise of religion, not of its own making. Thus, Congress 
can not act to alleviate burdens on the exercise of religion created by 
state governments. This argument would seem to be limited to exemptions 
from neutral laws of general applicability. But could it possibly be 
correct? The newly proposed  religious liberty in the workplace regulations 
that impose a stronger duty to accommodate religious practice on employers 
would be unconstitutional under this analysis. It would also be 
unconstitutional for a state to enact laws that protect the exercise of 
religion against burdens imposed by local governments. A state could not 
pass a law prohibiting school districts from scheduling final examinations 
on religious holidays -- because the school district, not the state, was 
imposing the burden on religion. That has to be wrong, doesn't it?

Alan Brownstein
UC Davis
School of Law