The Very Old New Separationism

I. INTRODUCTIONSeparation of church and state is supposed to be dead, or at least dying. It became the guiding principle of the Supreme Court's religion jurisprudence in the 1940s, increased in importance through the 1970s until it dominated the Court's religion jurisprudence, and then began a slow decline in the 1980s as the conservative Justices exploited its historical and conceptual weaknesses to tear it down. In its place, the Court has erected a neutrality regime that allows government both to regulate and to subsidize religion so long as it does so for secular reasons and remains religiously neutral.Most discussion of separationism assumes the above narrative, and for good reason. It accurately captures the broad trends of the Supreme Court's religion jurisprudence and successfully explains them in both doctrinal and political terms. Yet there remain aspects of the Court's religion jurisprudence that fit this narrative awkwardly, if at all-aspects highlighted by the Court's decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, which was both unanimous and thoroughly separationist.Because scholars lack a consensus understanding of separationism as a concept, they have not fully appreciated the ways in which the separationism of the 1970s differed from the separationism that preceded it. They have also not noticed that the ways in which the Court's jurisprudence today, whether it uses the word "separation" or not, resembles the separationism that guided the Court's religion jurisprudence in its earlier decades. It is a separationism at once new and very old.The common thread running through this history is the Court's concern for the development of religious belief free from government involvement or interference. In Free Exercise jurisprudence, this concern has led to special protections for individual religious belief, religious speech, and organizations that teach religious principles. In Establishment Clause jurisprudence, it has led to a requirement that any government action benefitting religious people or organizations must have a non-religious purpose and must be religiously neutral, whether they are distributed to religious organizations directly or through the free choice of private parties. The abandonment of the 1970s' approach to separationism has not been a repudiation of separationism itself, but of a particular approach to separationism-one that was only ascendant for perhaps two decades, one based on dubious assumptions and leading to untenable outcomes.This Article proceeds in four Parts. Part II elaborates on the traditional narrative of separationism's rise and fall before explaining this narrative's greatest flaw: its lack of any shared definition of separationism, which has obscured the separationist character of certain aspects of the Court's recent religion jurisprudence-in particular, the committed separationism of Hosanna-Tabor. Part III traces the contours of this new separationism in Free Exercise doctrine, tying it to the Court's early Free Exercise separationism and distinguishing both of them from the separationism of Sherbert and Yoder.Parts IV and V investigate the Court's new separationism in one aspect of its Establishment Clause jurisprudence, namely, aid to religious organizations. Part IV argues that the end of the "pervasively sectarian" doctrine and of the Court's efforts to ban aid that can be put to religious purposes, often considered signs of separationism's decline, are in fact consistent with its early separationist jurisprudence and a departure only from problematic doctrines articulated in the 1970s. Part V makes the same argument with respect to the Court's willingness to allow indirect aid to religious organizations, or in other words, aid distributed by the free choice of private individuals. Part VI concludes.II. THE FLAWED STORY OF SEPARATIONISM'S FALLThe conventional wisdom that the Supreme Court has repudiated separationism consists of two broadly shared understandings. …