In The

Supreme Court of the United States




Decided June 24, 1987

Justice O’Connor, Concurring

Topic: First Amendment*Court vote: 9–0
Note: No other Justices joined this opinion.
Citation: 483 U.S. 327 Docket: 86–179Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, concurring in the judgment.

Although I agree with the judgment of the Court, I write separately to note that this action once again illustrates certain difficulties inherent in the Court's use of the test articulated in Lemon v. Kurtzman, 403 U. S. 602, 403 U. S. 612 -613 (1971). See Wallace v. Jaffree, 472 U. S. 38, 472 U. S. 67 (1985) (O'CONNOR, J., concurring in judgment); Lynch v. Donnelly, 465 U. S. 668, 465 U. S. 687 (1984) (O'CONNOR, J., concurring). As a result of this problematic analysis, while the holding of the opinion for the Court extends only to nonprofit organizations, its reasoning fails to acknowledge that the amended § 702, 42 U.S.C. § 2000e-1, raises different questions as it is applied to profit and nonprofit organizations.

In Wallace v. Jaffree, supra, I noted a tension in the Court's use of the Lemon test to evaluate an Establishment Clause challenge to government efforts to accommodate the free exercise of religion:

On the one hand, a rigid application of the Lemon test would invalidate legislation exempting religious observers from generally applicable government obligations. By definition, such legislation has a religious purpose and effect in promoting the free exercise of religion. On the other hand, judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an 'accommodation' of free exercise rights.

Wallace v. Jaffree, supra, at 472 U. S. 82.

In my view, the opinion for the Court leans toward the second of the two unacceptable options described above. While acknowledging that "[u]ndoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to § 702," the Court seems to suggest that the "effects" prong of the Lemon test is not at all implicated as long as the government action can be characterized as "allowing" religious organizations to advance religion, in contrast to government action directly advancing religion. Ante at 483 U. S. 337. This distinction seems to me to obscure far more than to enlighten. Almost any government benefit to religion could be recharacterized as simply "allowing" a religion to better advance itself, unless perhaps it involved actual proselytization by government agents. In nearly every case of a government benefit to religion, the religious mission would not be advanced if the religion did not take advantage of the benefit; even a direct financial subsidy to a religious organization would not advance religion if, for some reason, the organization failed to make any use of the funds. It is for this same reason that there is little significance to the Court's observation that it was the Church, rather than the Government, that penalized Mayson's refusal to adhere to Church doctrine. Ante at 483 U. S. 337, n. 15. The Church had the power to put Mayson to a choice of qualifying for a temple recommend or losing his job because the Government had lifted from religious organizations the general regulatory burden imposed by § 702.

The necessary first step in evaluating an Establishment Clause challenge to a government action lifting from religious organizations a generally applicable regulatory burden is to recognize that such government action does have the effect of advancing religion. The necessary second step is to separate those benefits to religion that constitutionally accommodate the free exercise of religion from those that provide unjustifiable awards of assistance to religious organizations. As I have suggested in earlier opinions, the inquiry framed by the Lemon test should be "whether government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement." Wallace, 472 U.S. at 472 U. S. 69. To ascertain whether the statute conveys a message of endorsement, the relevant issue is how it would be perceived by an objective observer, acquainted with the text, legislative history. and implementation of the statute. Id. at 472 U. S. 76. Of course, in order to perceive the government action as a permissible accommodation of religion, there must in fact be an identifiable burden on the exercise of religion that can be said to be lifted by the government action. The determination whether the objective observer will perceive an endorsement of religion

is not a question of simple historical fact. Although evidentiary submissions may help answer it, the question is, like the question whether racial or sex-based classifications communicate an invidious message, in large part a legal question to be answered on the basis of judicial interpretation of social facts.

Lynch v. Donnelly, supra, at 465 U. S. 693 -694.

The above framework, I believe, helps clarify why the amended § 702 raises different questions as it is applied to nonprofit and for-profit organizations. As JUSTICE BRENNAN observes in his concurrence:

The fact that an operation is not organized as a profit-making commercial enterprise makes colorable a claim that it is not purely secular in orientation.

Ante at 483 U. S. 344 (opinion concurring in judgment). These cases involve a Government decision to lift from a non-profit activity of a religious organization the burden of demonstrating that the particular nonprofit activity is religious as well as the burden of refraining from discriminating on the basis of religion. Because there is a probability that a nonprofit activity of a religious organization will itself be involved in the organization's religious mission, in my view, the objective observer should perceive the Government action as an accommodation of the exercise of religion, rather than as a Government endorsement of religion.

It is not clear, however, that activities conducted by religious organizations solely as profit-making enterprises will be as likely to be directly involved in the religious mission of the organization. While I express no opinion on the issue, I emphasize that, under the holding of the Court, and under my view of the appropriate Establishment Clause analysis, the question of the constitutionality of the § 702 exemption as applied to for-profit activities of religious organizations remains open.

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