The Relationship Between the First Amendment's Establishment Clause and Free Speech Clause

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense, both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices.1

So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations and also by upholding some legislative accommodations not mandated by free exercise requirements. This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.2 There is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference.3

In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was fostering an ‘establishment’ of the Seventh-Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall.4

Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has been upheld against Establishment Clause challenge,5 although it is also possible for legislation to go too far in promoting free exercise.6 Government need not, however, offer the same accommodations to secular entities that it extends to religious practitioners in order to facilitate their religious exercise; [r]eligious accommodations need not ‘come packaged with benefits to secular entities.’7

Play in the joints can work both ways, the Court ruled in Locke v. Davey, upholding a state's exclusion of theology students from a college scholarship program.8 Although the state could have included theology students in its scholarship program without offending the Establishment Clause, its choice not to fund religious training did not offend the Free Exercise Clause even though that choice singled out theology students for exclusion.9 Refusal to fund religious training, the Court observed, was far milder than restrictions on religious practices that have been held to offend the Free Exercise Clause.10

The Court distinguished Locke, however, in Trinity Lutheran Church, explaining that Locke's holding hinged on that the fact that the State of Washington was prohibiting the dissemination of scholarship money because of what the theology student proposed to do with the money as opposed to who he was.11 In particular, the Court noted that the Washington scholarship program in Locke could be used by students to attend pervasively religious schools, but the program could not be used for the training of the clergy.12

In contrast, the Trinity Lutheran Church Court held that the State of Missouri’s decision to exclude an otherwise qualified church from a government grant program on the basis of the church’s religious status violated the Free Exercise Clause.13 In so holding, the Court concluded that while the First Amendment allows the government to limit the extent government funds can be put to religious use, the government cannot discriminate based on one’s religious status and, in so doing, put the recipient of a government benefit to the choice between maintaining that status or receiving a government benefit.14

The Court built on Trinity Lutheran's nondiscrimination principle in Espinoza v. Montana Department of Revenue, ruling that Montana could not bar religious schools from participating in a tax credit program benefiting private school students.15 The Montana Supreme Court concluded that the program violated a state constitutional provision, known as the No-Aid Clause, which prohibited the government from providing direct or indirect financial support to religious schools.16

The State argued that Trinity Lutheran should not apply because the No-Aid Clause excluded religious schools based on how they would use the funds—for religious education.17 The Supreme Court disagreed, stating that the text of the state constitutional provision barred religious schools from public benefits solely because of their religious character.18

Distinguishing Locke, the Court emphasized that Montana had not merely excluded any particular 'essentially religious' course of instruction, but barred all aid to religious schools.19 Further, unlike the 'historical and substantial' state interest in not funding the training of clergy at issue in Locke, there was no similar historically grounded interest in disqualifying religious schools from public aid more generally.20 Based on this religious discrimination, the Court evaluated the state's application of the No-Aid Clause under a strict scrutiny analysis and ultimately ruled it unconstitutional.21 The Court held that, while the state was not required to subsidize private education, once it decided to do so, it could not disqualify some private schools solely because they are religious.22


1.    The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other. Walz v. Tax Comm’n, 397 U.S. 664, 668–69 (1970).

2.    Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987).

3.    Walz v. Tax Comm’n, 397 U.S. at 669. See also Locke v. Davey, 540 U.S. 712, 718 (2004); Cutter v. Wilkinson, 544 U.S. 709, 713 (2005).

4.    Sherbert v. Verner, 374 U.S. 398, 409 (1963)AccordThomas v. Review Bd., 450 U.S. 707, 719–20 (1981). Dissenting in Thomas, Justice Rehnquist argued that Sherbert and Thomas created unacceptable tensions between the Establishment and Free Exercise Clauses, and that requiring the states to accommodate persons like Sherbert and Thomas because of their religious beliefs ran the risk of establishing religion under the Court’s existing tests. He argued further, however, that less expansive interpretations of both clauses would eliminate this artificial tension. Thus, Justice Rehnquist would have interpreted the Free Exercise Clause as not requiring government to grant exemptions from general requirements that may burden religious exercise but that do not prohibit religious practices outright, and would have interpreted the Establishment Clause as not preventing government from voluntarily granting religious exemptions. 450 U.S. at 720–27. By 1990 these views had apparently gained ascendancy, Justice Scalia’s opinion for the Court in the peyote case suggesting that accommodation should be left to the political process, i.e., that states could constitutionally provide exceptions in their drug laws for sacramental peyote use, even though such exceptions are not constitutionally required. Employment Div. v. Smith, 494 U.S. 872, 890 (1990).

5.    See, e.g.Walz v. Tax Comm’n, 397 U.S. 664 (1970) (upholding property tax exemption for religious organizations); Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights Act exemption allowing religious institutions to restrict hiring to members of religion); Gillette v. United States, 401 U.S. 437, 453–54 (1971) (interpreting conscientious objection exemption from military service); Cutter v. Wilkinson, 544 U.S. 709 (2005) (upholding a provision of the Religious Land Use and Institutionalized Persons Act of 2000 that prohibits governments from imposing a substantial burden on the religious exercise of an institutionalized person unless the burden furthers a compelling governmental interest).

6.    See, e.g.Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788–89 (1973) (tuition reimbursement grants to parents of parochial school children violate Establishment Clause in spite of New York State’s argument that program was designed to promote free exercise by enabling low-income parents to send children to church schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales tax exemption for religious publications violates the Establishment Clause) (plurality opinion); Board of Educ. of Kiryas Joel Village v. Grumet, 512 U.S. 687, 706–07 (1994) (accommodation is not a principle without limits; one limit is that neutrality as among religions must be honored).

7.    Cutter v. Wilkinson, 544 U.S. 709, 724 (2005) (quoting Corporation of the Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987)).

8.    Locke v. Davey, 540 U.S. 712 (2004).

9.    540 U.S. at 720–21. Excluding theology students but not students training for other professions was permissible, the Court explained, because [t]raining someone to lead a congregation is an essentially religious endeavor, and the Constitution's special treatment of religion finds no counterpart with respect to other callings or professions. Id. at 721.

10. 540 U.S. at 720–21 (distinguishing Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (law aimed at restricting ritual of a single religious group); McDaniel v. Paty, 435 U.S. 618 (1978) (law denying ministers the right to serve as delegates to a constitutional convention); and Sherbert v. Verner, 374 U.S. 398 (1963) (among the cases prohibiting denial of benefits to Sabbatarians)).

11. See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, No. 15-577, slip op. at 12 (2017) (emphases in original).

12. Id. at 13 (citing Locke, 540 U.S. at 724).

13. Id. at 14–15.

14. Id. at 13–14 (In this case, there is no dispute that Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.) (emphasis added).

15. 140 S. Ct. 2246, 2255–56 (2020).

16. Id. at 2254.

17. Id. at 2255.

18. Id.

19. Id. at 2257 (quoting Locke v. Davey, 540 U.S. 712, 721 (2004)).

20. Id. at 2257–58 (quoting Locke, 540 U.S. at 722).

21. Id. at 2260–61.

22. Id. at 2261.


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