Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/ri3.asc

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 Madison's failure to keep pace with his principles in the
face of congressional pressure cannot erase the principles.  He
admitted to backsliding, and explained that he had made the
content of his wartime proclamations inconsequential enough to
mitigate much of their impropriety.  See ibid.; see also Letter
from J. Madison to E. Livingston (July 10, 1822), in 5 The
Founders' Constitution, at 105.  While his writings suggest mild
variations in his interpretation of the Establishment Clause,
Madison was no different in that respect from the rest of his
political generation.  That he expressed so much doubt about the
constitutionality of religious proclamations, however, suggests a
brand of separationism stronger even than that embodied in our
traditional jurisprudence.  So too does his characterization of
public subsidies for legislative and military chaplains as
unconstitutional -establishments,- see supra, at 16-17, and
n. 6, for the federal courts, however expansive their general
view of the Establishment Clause, have upheld both practices.
See Marsh v. Chambers, 463 U. S. 783 (1983) (legislative
chaplains); Katcoff v. Marsh, 755 F. 2d 223 (CA2 1985) (military
chaplains).

 To be sure, the leaders of the young Republic engaged in
some of the practices that separationists like Jefferson and
Madison criticized.  The First Congress did hire institutional
chaplains, see Marsh v. Chambers, supra, at 788, and Presidents
Washington and Adams unapologetically marked days of "public
thanksgiving and prayer," see R. Cord, Separation of Church and
State 53 (1988).  Yet in the face of the separationist dissent,
those practices prove, at best, that the Framers simply did not
share a common understanding of the Establishment Clause, and, at
worst, that they, like other politicians, could raise
constitutional ideals one day and turn their backs on them the
next.  "Indeed, by 1787 the provisions of the state bills of
rights had become what Madison called mere `paper parchments'
expressions of the most laudable sentiments, observed as much in
the breach as in practice." Kurland, The Origins of the Religion
Clauses of the Constitution, 27 Wm. & Mary L. Rev. 839, 852
(1986) (footnote omitted).  Sometimes the National Constitution
fared no better.  Ten years after proposing the First Amendment,
Congress passed the Alien and Sedition Acts, measures patently
unconstitutional by modern standards.  If the early Congress's
political actions were determinative, and not merely relevant,
evidence of constitutional meaning, we would have to gut our

current First Amendment doctrine to make room for political
censorship.

 While we may be unable to know for certain what the
Framers meant by the Clause, we do know that, around the time of
its ratification, a respectable body of opinion supported a
considerably broader reading than petitioners urge upon us.  This
consistency with the textual considerations is enough to preclude
fundamentally reexamining our settled law, and I am accordingly
left with the task of considering whether the state practice at
issue here violates our traditional understanding of the Clause's
proscriptions.

III

 While the Establishment Clause's concept of neutrality is
not self-revealing, our recent cases have invested it with
specific content:  the state may not favor or endorse either
religion generally over nonreligion or one religion over others.
See, e.g., Allegheny County, 492 U. S., at 589-594, 598-602;
Texas Monthly, 489 U. S., at 17 (plurality opinion); id., at 28
(Blackmun, J., concurring in judgment); Edwards v. Aguillard, 482
U. S., at 593; School Dist. of Grand Rapids, 473 U. S., at
389-392; Wallace v. Jaffree, 472 U. S., at 61; see also Laycock,
Formal, Substantive, and Disaggregated Neutrality Toward
Religion, 39 De Paul L.  Rev. 993 (1990); cf. Lemon v. Kurtzman,
403 U. S. 602, 612-613 (1971).  This principle against favoritism
and endorsement has become the foundation of Establishment Clause
jurisprudence, ensuring that religious belief is irrelevant to
every citizen's standing in the political community, see
Allegheny County, supra, at 594; J. Madison, Memorial and
Remonstrance Against Religious Assessments (1785), in 5 The
Founders' Constitution, at 82-83, and protecting religion from
the demeaning effects of any governmental embrace, see id., at
83.  Now, as in the early Republic, "religion & Govt. will both
exist in greater purity, the less they are mixed together."
Letter from J. Madison to E. Livingston (10 July 1822), in 5 The
Founders' Constitution, at 106.  Our aspiration to religious
liberty, embodied in the First Amendment, permits no other
standard.

A

 That government must remain neutral in matters of
religion does not foreclose it from ever taking religion into
account.  The State may -accommodate- the free exercise of
religion by relieving people from generally applicable rules that
interfere with their religious callings.  See, e.g., Corporation
of Presiding Bishop of Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U. S. 327 (1987); see also Sherbert v.
Verner, 374 U. S. 398 (1963).  Contrary to the views of some,
such accommodation does not necessarily signify an official
endorsement of religious observance over disbelief.

 In everyday life, we routinely accommodate religious
beliefs that we do not share.  A Christian inviting an Orthodox
Jew to lunch might take pains to choose a kosher restaurant; an
atheist in a hurry might yield the right of way to an Amish man
steering a horse-drawn carriage.  In so acting, we express
respect for, but not endorsement of, the fundamental values of
others.  We act without expressing a position on the theological
merit of those values or of religious belief in general, and no
one perceives us to have taken such a position.

 The government may act likewise.  Most religions
encourage devotional practices that are at once crucial to the
lives of believers and idiosyncratic in the eyes of nonadherents.
By definition, secular rules of general application are drawn
from the nonadherent's vantage and, consequently, fail to take
such practices into account.  Yet when enforcement of such rules
cuts across religious sensibilities, as it often does, it puts
those affected to the choice of taking sides between God and
government.  In such circumstances, accommodating religion
reveals nothing beyond a recognition that general rules can
unnecessarily offend the religious conscience when they offend
the conscience of secular society not at all.  Cf. Welsh v.
United States, 398 U. S. 333, 340 (1970) (plurality opinion).
Thus, in freeing the Native American Church from federal laws
forbidding peyote use, see Drug Enforcement Administration
Miscellaneous Exemptions, 21 C. F. R.  1307.31 (1991), the
government conveys no endorsement of peyote rituals, the Church,
or religion as such; it simply respects the centrality of peyote
to the lives of certain Americans.  See Note, The Free Exercise
Boundaries of Permissible Accommodation Under the Establishment
Clause, 99 Yale L. J. 1127, 1135-1136 (1990).

B

 Whatever else may define the scope of accommodation
permissible under the Establishment Clause, one requirement is
clear:  accommodation must lift a discernible burden on the free
exercise of religion.  See Allegheny County, supra, at 601, n.
51; id., at 631-632 (opinion of O'Connor, J.); Corporation of
Presiding Bishop, supra, at 348 (O'Connor, J., concurring in
judgment); see also Texas Monthly, supra, at 18, 18-19, n. 8
(plurality opinion); Wallace v. Jaffree, 472 U. S., at 57-58, n.
45.  But see Allegheny County, supra, at 663, n. 2 (opinion of
Kennedy, J.).  Concern for the position of religious individuals
in the modern regulatory state cannot justify official solicitude
for a religious practice unburdened by general rules; such
gratuitous largesse would effectively favor religion