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Part 2, Module 1: The Establishment and Free Exercise Clauses

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Module 1: The Establishment and Free exercise Clauses



             In the United States, the right to freely practice religion is considered central to ensuring liberty, autonomy and self-determination. Freedom of religion is memorialized in the First Amendment to the Constitution, which states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”  Thus, the First Amendment provides two constitutional safeguards that safeguard citizens’ right to freely practice religion: (1) the establishment clause (“Congress shall make no law respecting an establishment of religion”); and (2) the free exercise clause (“or prohibiting the free exercise thereof”).[1]

             Although the establishment and free exercise clauses protect religious liberty, they do so in different ways. The establishment clause protects a negative right, in that it prohibits the government from enacting laws or engaging in conduct that favors one religion over another, or that favors religion over non-religion. The free exercise clause protects an affirmative right, in that it provides citizens with the right to freely exercise their religious beliefs without fear of governmental sanction or reprisal. Together, these clauses form the cornerstone of religious liberty in the United States.

             In this module, we will review the historical bases upon which the establishment and free exercise clauses were predicated and examine the legal principles that the Supreme Court has established when determining if a law or governmental action violates either clause.  In subsequent modules, we will apply these legal standards to specific legal and factual contexts.

 As a threshold matter, although the Constitution protects the right to freely exercise religion through both the establishment and free exercise clauses, this right is not absolute. For example, in some circumstances, the government may observe or acknowledge religious practices without violating the establishment clause or regulate religious practices without violating the free exercise clause. The critical question concerns when, and under what circumstances, a particular law or governmental action violates either clause.  To answer this question, we must first consider the purposes underlying both clauses.

The Establishment Clause

In its early jurisprudence, the Supreme Court held that the purpose of the establishment clause was to ensure a “wall of separation” between church and state.[2]  In subsequent cases, however, the Court rejected the “wall of separation” principle because, although the First Amendment “reflects the philosophy that church and state should be separated,”[3] it does not say “…that in every and all respects there shall be a separation of church and state.”[4]

 The Court instead adopted a standard that required the government to maintain “complete official neutrality toward religion.”[5] As one scholar explains, “since the function of the establishment clause in our constitutional system is to promote complete official neutrality toward religion … the constitutionality of any governmental action involving religion depends on whether or not that action is consistent with this overriding principle.”[6] One commentator explains the “official neutrality” principle as follows:

 Because the establishment clause does not require the government to be hostile to religion, obviously, the government can include religious institutions in the services it provides to the public generally, such as police and fire protection, and likewise, the government can include religious institutions among recipients of governmental funding to provide secular services. In addition, the principle of complete official neutrality is not breached when the government provides religious organizations with equal access to governmental facilities, such as access to a public forum.[7]

This standard suggests that the government’s acknowledgement or accommodation of religion does not violate the establishment clause. For example, “the government does not violate the establishment clause when it includes the religious with the secular in the receipt of governmental benefits.”[8]

 Still, the government cannot “favor one religion over another,” or “favor religion over non-religion.”[9]  However, the official neutrality principle does not prohibit the government from acknowledging religion or religious practices for historical purposes, or when the acknowledgment is relatively minor in nature.

 Consider the following examples:

              Example One

A state passed a law authorizing construction of a park dedicated to spiritual recognition and acceptance. The law provided that “all religions including, but not limited to, Catholicism, Protestantism, Judaism, and Buddhism, shall be permitted to acknowledge and express their religious faith through, among other things, the erection of symbols and statues commemorating their religious heritage.” The law contained an exception, however, that prohibited “all symbols, statues, or other items supporting Satanic worship.” The state has violated the establishment clause because it is clearly demonstrating a preference for certain religious practices (e.g., Catholicism) over others (e.g., Satanic worship), and thereby violating the principle that the government maintain official neutrality in religious matters.

Example Two

The Time is Now, a well-known atheist organization, filed a lawsuit in which it alleged that the phrase “In God We Trust,” which appears on all currency in the United States, violates the Establishment Clause.  This lawsuit will likely lose. The inclusion of “In God We Trust” on currency in the United States reflects recognition of the religious principles underlying the Declaration of Independence, and in any event is sufficiently minor that it will not likely be construed as an official preference for one religion, or for religion over non-religion.[10]

Establishment Clause Standards

Many laws, however- such as laws providing for private school vouchers- do not explicitly show favoritism for one religion over another, or for religion over non-religion. Rather, such laws involve the government providing support, directly or indirectly, to religious organizations. When deciding if a law violates the establishment clause in this context, the courts use a multi-pronged test, which is often referred to as the Lemon test. Under the Lemon test, a law or governmental action will only be upheld if: (1) the law or action has a secular legislative purpose; (2) the principal or primary effect of the law or action does not advance or inhibit religion; and (3) the law or action does not foster “excessive entanglement” of the government with religion.[11]  In applying the Lemon test, courts try to strike a delicate balance between Congress’s authority to accommodate religion and the prohibition against impermissibly establishing religion.

 In County of Allegheny v. ACLU,[12] Justice Anthony Kennedy argued that the relevant test under the establishment clause should be whether an individual is directly or indirectly coerced into supported or adhering to conduct that supports a particular religion (or religion generally). Justice Kennedy wrote: 

  • Our cases disclose two limiting principles:  government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact ‘establishes a [state] religion or religious faith, or tends to do so.’  These two principles, while distinct, are not unrelated, for it would be difficult indeed to establish a religion without some measure of more or less subtle coercion, be it in the form of taxation to supply the substantial benefits that would sustain a state established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing. . .   The freedom to worship as one pleases without government interference or oppression is the great object of both the establishment and the free exercise clauses.  Barring all attempts to aid religion through government coercion goes far toward attainment of this object.[13]

In Justice Kennedy’s view, absent coercion, “the risk of infringement of religious liberty by passive or symbolic accommodation is minimal.”[14]

 Other Justices have proposed a standard that reflects a modified version of the Lemon test. In Agostini v. Felton, for example, the Court was confronted with a state-sponsored law permitting public school teachers to instruct students in religious  schools.[15] The majority held that the law did not violate the Establishment Clause because it did not: (1) result in indoctrination; (2)  define its recipients by reference to religion; or (3) create an excessive entanglement of government and religion.[16]


The Free Exercise Clause

 By way of brief background, when drafting the Constitution, the founders’ experience with religious persecution by the English monarchy motivated them to support “the protection and accommodation of religious practice, both individual and collective.”[17] They hoped that, “by protecting freedom of worship, they would shield what was already a religiously diverse country from the kinds of religious conflict that had raged in Europe through much of the 16th and 17th centuries.” Reflecting the founders’ intentions, the Supreme Court has stated that the free clause “bars ‘governmental regulation of religious beliefs as such, or interference with the dissemination of religious ideas,’” and “prohibits misuse of secular governmental programs ‘to impede the observance of one or all religions or to discriminate invidiously between religions, even though the burden may be characterized as being only indirect.’”[18]

 At the time of its adoption, however, and for decades thereafter, several questions remained regarding the free exercise clause’s precise meaning, particularly concerning the definition of ‘religion’ and the circumstances in which citizens could claim exemptions from generally-applicable laws that infringed on citizens’ religious beliefs and practices.

 One of the first constitutional questions that the Supreme Court confronted when interpreting the free exercise clause was how to define a “religion.”

 In Reynolds v. U.S., the Court acknowledged that the free exercise clause did not specifically define “religion,” and thus sought to develop a definition based on the history underlying the clause’s adoption.[19]  The Court defined religion quite broadly, stating that religion constitutes those duties that “we owe to the Creator” apart from the “cognizance of civil government.”[20] The Court relied on Thomas Jefferson’s Preamble to the 1786 Virginia Statute for Establishing Religious Freedom, which sought to prohibit “the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency,”[21] which Jefferson states was “a dangerous fallacy which at once destroys all religious liberty.”[22]

 The definition reflected the founders’ desire to foster a society in which religious diversity could flourish and in which the right to exercise religion would not be weakened by the threat of reprisal from the government. For this reason, the Court adopted a definition that prohibited judges from inquiring into the validity of specific religions or religious beliefs, provided that someone had a good faith basis for those beliefs.[23]


Beliefs vs. Practices

 In Reynolds, the Court distinguished between religious beliefs and practicesSpecifically, the Court held that, although Congress could not regulate or restrict religious beliefs, it could, in some cases, regulate religious practices. As the Court stated“all legislative power was prohibited over mere opinion, but Congress was left free to reach actions that were in violation of social duties or subversive of good order.”[24] A “state may not, by statute, wholly deny the right to preach or to disseminate religious views,”[25] although it can, in certain contexts, regulate the manner in which religious beliefs are practiced if such a regulation serves important governmental interests, such as protecting public safety.

 Consider the following examples:

 Example One

The Afterlife Institute is a non-denominational religious organization that welcomes worshipers from all religious faiths, and that holds worship services on Sunday of each week. The most popular part of the weekly service is “The Revelation,” during which time a higher being allegedly provides spiritual guidance and advice for all followers. Each week, before receiving The Revelation, worshipers are required to ingest a modest amount of what The Afterlife Institute calls a “spiritual substance” that enables followers to “open their hearts” to the higher being’s weekly message. Law enforcement officers investigating the Afterlife Institute discover that the “spiritual substance” is a concoction consisting of the illegal drugs marijuana and cocaine. Members of The Afterlife Institute are arrested and charged with possession and use of illegal drugs. The Institute objects on the grounds that the charges violate their religious beliefs, which, as stated in the Institute’s Founding Religious Principles, enable followers to connect with the higher being only after consuming the “spiritual inducing substance.” This application of drug laws to the Institute will likely be upheld because the law does not interfere with The Afterlife Institute’s religious beliefs. Rather, it regulates the Institute’s practices through a law that applies to all citizens and that furthers the state’s legitimate interest in preventing the consumption of illegal drugs.[26]

                Example Two

The State of Massachusetts requires that all children must attend public school up to the age of sixteen. However, Massachusetts exempts families of the Amish faith from this law because Amish doctrine provides that children are to be raised and educated in a manner consistent with the Amish’s spiritual and religious doctrine.[27] However, despite repeated requests, Massachusetts refuses to exempt children of parents from the Heavenly Temple of the Divine, which professes that “only God, not the State, is permitted to educate and guide offspring,” and that the government “is an instrument of evil.” Massachusetts public officials have repeatedly stated that the Heavenly Temple of the Divine is not entitled to an exemption because “their beliefs are plainly absurd and fall far outside of any reasonable conception of a valid religious belief.” Massachusetts is incorrect and has violated the First Amendment. Neither the state nor federal government is permitted to make judgments regarding the validity of individuals’ or organizations’ religious beliefs. As long as a religious belief is sincerely held, it is entitled to protection under the Free exercise Clause.[28]

In some cases, however, the distinction between religious beliefs and practices is unclear. Consider the following example:

John and Mary Smith have two children and are members of The Church of Eternity, which believes, among other things, that “all healing comes from God.” As part of this doctrine, The Church of Eternity requires followers, upon experiencing illness or injury, to refuse all conventional forms of medical intervention. Late one evening, John and Mary Smith discover that one of their children is lying in bed unconscious and struggling to breathe. They immediately rush their child to the hospital and are informed that their child has the swine flu. Doctors inform John and Mary that, absent prompt medical intervention, their child will die. John and Mary, relying on The Church of Eternity’s tenets, refuse medical treatment for their child and instead decide to pray for healing from God. Two days later, the child dies, and the parents are prosecuted for reckless manslaughter. While courts are divided on this issue, the majority position is that people may refuse medical treatment for themselves, but not for their children based on religious beliefs.[29]

Supreme Court case law has generally held that the free exercise clause does not entitle people to claim an exemption from a generally applicable law, which means a law that imposes obligations on the general public and does not reflect animus toward a particular religion.[30] In the Reynolds case we touched on earlierfor example, the Court held that a polygamist couple was not exempt from a law outlawing polygamy simply because their religion sanctioned polygamist marriages.[31] Additionally, in Employment Division v. Smith, the Court held that generally-applicable laws  do not burden the free exercise of religion even if they impose an incidental burden on religious practices.[32] 

However, in response to Smith, Congress passed the Religious Freedom Restoration Act, which altered the standard by which the courts determine whether a law violates the free exercise clause. Under the RFRA, a law that “substantially burdens” the free exercise of religion can only be upheld if it furthers a substantial government interest and is the least restrictive means by which to achieve that interest.[33]

In our next module, we’ll look at the “free exercise” clause in more depth and then follow up in module 3 with a discussion of specific applications of that clause.

[1] U.S.C.S. Const. Amend 1.

[2] Everson v. Board of Education, 330 U.S. 1 (1947).

[3] Zorachv. Clauson, 343 U.S. 306 (1952).

[4] Id.

[5] Robert Sedler, Understanding the Establishment Clause: A Revisit, 59 Wayne L. Rev. 589 (2013).

[6] Id. at 598.

[7] Id. at 597.

[8] Id.

[9] Id.

[10] Johnathan Stempel, U.S. Court Rejects Atheists’ Appeal Over “In God We Trust” On Moneyhttps://www.reuters.com/article/us-usa-religion-motto/us-court-rejects-atheists-appeal-over-in-god-we-trust-on-money-idUSKCN1LD24K.

[11] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[12] County of Allegheny v. ACLU, 492 U.S. 573 (1989).

[13] Id. supra.

[14] Id.

[15] Agostini v. Felton, 521 U.S. 203 (1997).

[16] Id.

[17] Id.

[18] Gillette v. U.S., 401 U.S. 437 (1971) (internal citations omitted).

[19] Reynolds v. U.S., 98 U.S. 145 (1878).

[20] Id., supra, at 163.

[21] Id.

[22] Id. (emphasis addedinternal citation omitted).

[23] See, Thomas v. Review Bd. of Ind. Emp’t Sec. Div.450 U.S. 707 (1981).

[24] Reynoldssupra note 19.

[25] Cantwell v. Connecticut, 310 U.S. 296 (1940).

[26] Emp’t Div., v. Smith, 494 U.S. 872 (1990).

[27] Wisconsin v. Yoder, 406 U.S. 205 (1972).

[28] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

[29] SeeComment: Mother May I... Live? Parental Refusal of Life-Sustaining Medical Treatment for Children Based on Religious Objections, 66 Tenn. L. Rev. 499 (1999).

[30] See, e.g., Braunfield v. Brown, 366 U.S. 599 (1961).

[31] Reynoldssupra note 19.

[32] Emp’t Div.supra note 26.

[33] 42 U.S.C. § 2000bb.