Freedom of Religion

The first ten amendments to the U.S. Constitution, also known as the Bill of Rights, were added in 1791. James Madison drafted them to preserve individual freedoms and limit government power.

He based his draft on the Virginia Declaration of Rights. The House and Senate made modifications to Madison’s original First Amendment language. They eventually settled on the current language, which reads,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

From this language, we can see that the First Amendment aims to protect several democratic ideals, including:

• Free speech (including freedom of expression)
• Freedom of religion
• Freedom of assembly or peaceful protest
• Freedom of the press

These protections begin as a prohibition on Congress, our federal legislature. In other words, the First Amendment says Congress can’t pass laws that restrict these freedoms. Originally, the First Amendment just applied to the federal government.

As the ultimate interpreter of the Constitution, however, the U.S. Supreme Court determined this prohibition isn’t limited to Congress. Through the passage of the Fourteenth Amendment and the doctrine of incorporation, the Court has established that this prohibition extends to government action of any type and at any level.

Legal Standards

Government action can take many forms. Examples include local ordinances, public school policies, state regulatory agency actions, federal laws, and court injunctions. We commonly refer to government action in this context as state action.

Thus, the First Amendment protects these freedoms from government action that restricts them. However, these rights are not absolute.

The Supreme Court has established several permissible restrictions on these freedoms. It’s also developed frameworks and legal standards for determining whether a restriction passes constitutional muster.

Generally, a governmental restriction on these rights must be consistent with the First Amendment to be upheld. These standards or tests tend to weigh the government interest served by the restriction against the First Amendment rights burdened by it.

For example, strict scrutiny is the most difficult standard to meet. It requires a restriction to advance a compelling state interest in the least restrictive manner available.

What Is the First Amendment Freedom of Religion?

The First Amendment has two religion clauses, the Establishment Clause and the Free Exercise Clause. Together, they protect religious freedom. The religion clauses also illustrate Madison’s dual intention of protecting individual liberties and limiting governmental power.

They begin the First Amendment and read:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

Since ratification, this broad language has sparked robust debate about its scope.

The Supreme Court has noted that the religion clauses aren’t very precisely drafted. But they aren’t necessarily supposed to be. The Framers weren’t trying to write a statute. Rather, their goal was to provide an objective.

The Establishment Clause

The Establishment Clause essentially requires the separation of church and state. In other words, the government should generally be uninvolved in religious matters. This clause was included to prevent the government from establishing an official national religion like the Church of England.

It also prohibits the government from favoring religion in general or one religion over another. The Supreme Court has long interpreted this clause to ban government support for religion. This can include sponsorship, active involvement by the state in religious activities, and financial support.

Establishment clause challenges often arise in the public school environment. The Establishment Clause generally prohibits public schools from engaging in religious instruction. But it doesn’t ban the mere mention of religion. Public schools often observe religious holidays like Christmas or Ramadan. However, they must be careful not to favor or endorse any religion or religious themes.

For example, the 8th Circuit U.S. Court of Appeals addressed Florey v. Sioux Falls School District in 1980. The court held that public schools may host Christmas programs if they focus on the” secular or cultural basis or heritage of the holidays.”

Likewise, a secular education doesn’t have to avoid the topic of religion in its curriculum. It just can’t promote a particular religion or religious belief.

The Free Exercise Clause

Likewise, the First Amendment’s Free Exercise Clause limits the government’s involvement in religious matters. It protects the freedom to practice one’s religion, or no religion at all, without interference from the government.

This clause upholds people’s right to hold whichever religious beliefs they choose. A religious belief need not adhere to the principles of Christianity or any particular faith.

Indeed, the Court has even noted that notions beyond traditional theism may be considered as part of “the ever-broadening understanding of the modern religious community.”  

The Court has also clarified that constitutional protections extend only to sincerely held religious beliefs and activities. In evaluating free exercise challenges, an inquiry into the sincerity of one’s religious beliefs may thus be appropriate. This helps to ensure that a person’s purported religious beliefs aren’t actually motivated by political, philosophical, or sociological ideologies.

Government Neutrality

The Court has also explained that the government must be “neutral in its relations with groups of religious believers and non-believers.” Accordingly, the Court has recommended government neutrality as a guiding principle when interpreting the establishment clause.

Still, the Court has recognized that not all government support for religious institutions or regulation of religious exercise violates religious freedom. As such, it has also developed specific frameworks for evaluating whether government action respecting religion is neutral enough to be considered consistent with the establishment clause.

Tension Between the Establishment Clause and Free Exercise Clause

Both religion clauses aim to protect individual religious choices and practices. However, conflicts can arise occasionally.

This is because the Establishment Clause demands neutrality from the government. Yet the free exercise clause often requires the state to accommodate various religious activities. For example, a public school may have to accommodate a student’s need to pray during the school day.

The Court has somewhat resolved this tension by declaring that governmental accommodations required by the free exercise clause don’t violate the Establishment Clause. It has also upheld governmental accommodations that are permitted, but not required, by the clause.

Important Supreme Court Cases on Religion

To maintain neutrality, the government must permit the free exercise of religion without endorsement or interference by the state. Several Supreme Court cases illustrate the Court’s attempts to strike this delicate balance when interpreting the religion clauses.

Reynolds v. United States

In 1879, the Court upheld a state law illegalizing polygamy in Reynolds v. United States. The Reynolds Court clarified that the free exercise clause allows the state to regulate some religious practices, like bigamy or polygamy. However, it cannot regulate religious beliefs, as they are separate from actions or behavior.

Likewise, the Court rejected another polygamist’s free exercise challenge to a law that criminalized polygamy. The Court explained advocacy in the name of polygamy as a religious principle offends common sense.

Yet, later, the Court’s position shifted to recommending that the government refrain from judging the legitimacy of religious beliefs.

Engel v. Vitale

In Engel v. Vitale (1962), the Court held that public school-sponsored prayer violates the First Amendment establishment clause. In Engel, public school teachers in New York were required to begin the school day with their students reciting a designated prayer.

The State Board of Regents composed the nondenominational prayer, which welcomed God’s blessings. During the prayer, students could stay silent or leave the room.

Still, the Court found the practice violated the Establishment Clause. Students didn’t need to be forced to participate in the religious activity.

The Court explained, “it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

Lemon v. Kurtzman

In 1971, the Court established our current standard for determining whether government action complies with the Establishment Clause. In Lemon v. Kurtzman, the Court set forth what we now refer to as the three-pronged Lemon test. It requires the government action to:

• Serve a primarily secular purpose
• Not promote or hinder religion
• Not excessively entangle church and state

State action that fails to meet one or more of these criteria violates the Establishment Clause.

Wisconsin v. Yoder

The following year, the Court reviewed a Wisconsin law alleged to violate the free exercise clause. In Wisconsin v. Yoder, a group of Amish families contested a state law mandating that students stay in school until they are sixteen years old.

To protect their way of life, however, Amish parents had to stop sending their children to school after eighth grade. Their religion prohibited high school attendance because of its potentially corrupting influences.

The Court determined that the Amish parents’ religious conviction about raising their children in their community was sincere. And it outweighed the state’s interest in universal compulsory education.

Accordingly, the Court held the Wisconsin law violated the parents’ free exercise rights. It also clarified that only the most compelling state interests will outweigh one’s legitimate free exercise claims.

Employment Division, Oregon Department of Human Resources v. Smith

In the 1990 matter of Employment Division, Oregon Department of Human Resources v. Smith, the Court seemingly narrowed its interpretation of the free exercise clause. It upheld the state’s decision to deny unemployment benefits for two Native Americans fired from their jobs at a private drug rehabilitation company.

Alfred Smith and Galen Black ingested peyote, an illegal hallucinogenic substance, as part of a religious ceremony with their church. The company terminated them for work-related misconduct. Under state law, this disqualified them from receiving unemployment compensation.

Smith and Black contended the state’s denial of benefits violated their free exercise rights. The Court disagreed. It explained that one’s religious beliefs or convictions have never provided an exemption from complying with an otherwise “valid and neutral law of general applicability.”

Lee v. Weisman

In 1992, the Lee v. Weisman Court established that prayer at public school graduations is unconstitutional. It gives the impression that the government-operated school endorses or recommends religion. Also, most people don’t consider a milestone event like graduation to be optional.

Together, these amounted to the state forcing participation in a religious activity. That, the Court explained, violates the Establishment Clause.

The main idea behind religious freedom in America is that the government must allow for the free exercise of religion without promoting it or burdening it.

The Supreme Court’s charge of interpreting the First Amendment is particularly challenging because regulations and accommodations are often necessary to ensure these constitutional protections remain intact. The Court’s approach to balancing these considerations provides us with invaluable insight into the limits and reach of this First Amendment freedom.