Establishment and Free Exercise Clauses
The First Amendment provides: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These two clauses are referred to as the “establishment clause” and the “free exercise clause.” As with that part of the First Amendment which protects freedom of speech, both of these clauses have been applied to the states, and therefore operate against all levels of government in the United States. The free exercise clause protects the religious beliefs, and to a certain extent, the religious practices of all citizens. The more controversial establishment clause prohibits the government from endorsing, supporting, or becoming too involved in religion and religious activities.
Both clauses protect the same values, and often a violation of one would also be a violation of the other. For example, mandatory prayer in schools would constitute an improper establishment of religion and would also interfere with the free exercise rights of those students who did not believe in that particular prayer or prayer in general.
There is, however, an inherent tension between the two clauses. If the government goes too far in protecting one, it risks violating the other. For example, if the government refuses to provide certain services (i.e., fire and police protection) to churches, that might violate the free exercise clause. If the government provides too many services to churches (perhaps extra security for a church event), it risks violating the establishment clause. If schools prohibit all student prayer on school property, they may violate the free exercise clause. But if they allow student led prayers during school hours, they may violate the establishment clause.
In interpreting the First Amendment, it is sometimes necessary to define religion. The courts have generally given a very broad definition to the term. Religious beliefs are protected even when they do not conform to the dogma of any particular religion. In fact, a person does not have to belong to an organized group to receive protection for religious beliefs. A person’s beliefs will be recognized as religious even without belief in God (or a supreme being) as long as the beliefs play “the role of a religion and function as a religion” in the person’s life.
The courts may not declare any religion false even if the overwhelming majority of people do not believe in its precepts or claims. The only relevant measure is whether the individual is acting under “sincerely held beliefs.” If members of a religious sect are accused of fraud for taking donations for their religion while claiming they can cure disease, the issue for the jury is not whether they can actually cure disease, but whether they have a sincere belief that they can. Of course, the problem with this formulation is that it is very difficult to judge whether another person’s beliefs are sincere or not.
The Establishment Clause
The establishment clause has generated a good deal of controversy in the last fifty years, especially in the area of school prayer and government funding of parochial (religious) schools. There has not been general agreement on the Supreme Court as to the meaning of this clause, and this has led to seemingly inconsistent decisions.
Some justices take a very narrow view of the clause, arguing that the government violates it only if it actually establishes a state religion or coerces individuals to participate in religion or religious activities. On the other side, some justices have argued for a strict wall of separation between church and state, not allowing any government aid or support for religion. Neither of these positions, however, has usually commanded a majority of the Court.
The approach taken most often by the Court is one of neutrality. That is, the government may not favor one religion over another, or religion over secularism (non-religion). Under this approach the government may not endorse (actually or symbolically) religion.
The differences between these approaches can be seen in a case involving religious displays on public property. In Allegheny County v. Greater Pittsburgh ACLU, the county government had erected two displays during the Christmas season. One was a nativity scene (crèche) and the other was an outside display featuring a Christmas tree, a menorah (symbolizing Chanukah) and a sign saluting liberty during the holiday season. Several justices did not see either as a violation of the establishment clause, and several took the approach that any religious displays by the county constituted a violation. The case was decided by the judges in the middle. They held that the crèche was unconstitutional because it was likely to be viewed as an endorsement of Christianity. The other display, containing symbols of two religions and an acknowledgement of freedom, was considered a reasonable approach to acknowledging a holiday with both religious and cultural aspects and not an endorsement of religion.
In many, but not all establishment clause cases, the Supreme Court has applied a test derived from the case of Lemon v. Kurtzman (Lemon test). Under this test, there are three requirements that a state law must meet in order to be constitutional. First, the law must have a secular (non-religious) purpose. Laws providing for the posting of the ten commandments or for silent meditation in schools have been held unconstitutional under this test since they were clearly passed for religious reasons. On the other hand, states have been allowed to pay for textbooks for non-religious subjects taught in parochial schools, since this had the secular purpose of helping the students learn.
Second, the law must not have the primary effect of advancing religion. In Estate of Thornton v. Calder, the Court struck down a statute which gave all persons an unqualified right not to have to work on their Sabbath, holding that its primary effect was to advance religion.
Third, the test requires that government avoid excessive entanglement with religion. A law that is difficult to administer without determining when an activity is religious or non-religious, such as paying the salaries of parochial school teachers of secular subjects, would be held to violate this principal.
Schools and the Establishment Clause
The most controversial decisions involving the establishment clause have involved the schools, both public and private. As to public schools, the issue has been prayer in the schools. In 1962, the Supreme Court held that a school policy of having a daily prayer violated the establishment clause, even though the prayer was non-denominational and students were not compelled to participate. This decision has been severely criticized by some politicians and religious leaders and has led to several unsuccessful attempts to amend the Constitution. The Supreme Court has held very firm in keeping prayer and other religious activities out of school and official school functions. It has held that schools may not have daily Bible readings, or moments of silence for meditation or prayer, or prayers at school graduations, or even student-initiated and led prayers at a high school football game.
In a related line of cases, however, the Court has held that schools that allow student groups or outsiders to use their facilities may not prohibit their use for religious purposes. The Court held that prayer was a protected form of freedom of expression, and these prohibitions were viewed as a content-based restriction on the free speech rights of the groups.
The major issue involving private parochial schools has been the extent to which the state may give financial aid to parochial schools and their students. In some cases where the state has attempted to provide benefits to parochial students that are available to other students, such as bus transportation to school and textbooks for secular subjects, it has been allowed. But there are many seemingly contradictory decisions in this area. While states can provide buses to take the children to school, they cannot provide them for field trips. While they can pay for secular textbooks, they cannot pay the salaries of teachers of secular subjects. The latest area of conflict is whether the states can provide students with vouchers, with which they can help pay the cost of private school tuition, whether secular or religious.
The Free Exercise Clause
Decisions involving the free exercise clause have not been as controversial as those involving the establishment clause. It is clear that all individuals have an absolute right to hold any religious belief, which may not be interfered with by the government. The problem arises as to what extent the government can control conduct that is based on religious belief.
Although the government may not specifically target religious practices, its general restrictions on conduct which are directed at everyone may also be applied to persons engaging in that proscribed conduct for religious reasons. For example, the Court held that laws prohibiting polygamy (the practice of having more than one spouse) could be applied to Mormons, even though they claimed that the practice was required by their religion.
Until recently, however, application of such general prohibitions in cases that affected people’s religious practices had to undergo “strict scrutiny.” That is, the state had to show that there was a very important government purpose to the law, which could not be met in other ways. On this basis, the Court struck down a law denying a woman unemployment benefits because she quit voluntarily, when that law was applied to a woman who was forced to quit because she would not work on her Sabbath.
In the 1990 case of Employment Division v. Smith, the Court changed positions and held that as long as a law was applied to all persons and was not passed specifically to interfere with religion, it would be upheld even if it significantly affected religious practices. The Court held that the state could deny unemployment benefits to a group of Indians who had been fired for using peyote even though they claimed that it was needed in their religious ceremonies. The state was not required to make any special justifications for the law.
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.
This article has not been revised since publication.
This post was created by support on January 5, 2021.