Distinguish Between an “Establishment of Religion” and “Free Exercise”
In the 1820s, a man named Joseph Smith had spiritual visions, and from his visions came the new religion of the Church of Latter-day Saints, whose adherents are called Mormons. Throughout the 19th century, the Mormon faith spread as the charismatic Smith gathered followers. Among the Mormons’ more controversial practices was polygamy, or men having multiple wives. Joseph Smith based his belief in polygamy on biblical examples of the practice, though his followers did not, at first, accept this part of his revelation.
On the other hand, for government to avoid exceeding a structural restraint is a matter of confining legislation and the actions of its officials to the scope of its delegated powers. These restraints are impersonal, running in favor of the entire body politic. Although individual rights can be waived because they are personal, institutional structure cannot. The difference between rights and structure manifests itself in additional but often subtle ways that can prove definitive (Laurence H. Tribe, 1988). Nevertheless, the immediate object of constitutional structure is the management of power: a dividing, dispersing, and balancing of the various prerogatives of sovereignty. "Separation of powers" and "federalism" are mere shorthand for familiar forms of constitutional structure running horizontally and vertically, respectively, within the threebranch federal government and the multilayered system of national, state, and local governments. Structural clauses are helpfully thought of as power conferring and power limiting, so long as it is understood that many such clauses serve both functions (Daan Braveman, 1996).
Congress tried to reverse the decision in Smith by passing the Religious Freedom Restoration Act. This required states to show a compelling need for any law that burdened a person’s exercise of religion and that the law was the least restrictive means of satisfying that need. The Supreme Court, however, held that the statute violated the establishment clause because its primary purpose was to advance religion.
Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, 3rd ed. (Deerfield, Ill.: Clark Boardman Callaghan, 1996)
Daan Braveman, et al., Constitutional Law: Structure and Rights in Our Federal System, 3' ed. (New York: Mathew Bender, 1996), v-vi, 153, 193, 257,
Laurence H. Tribe, American Constitutional Law, 2'd ed. (Mineola, N.Y.: Foundation Press, 1988).