Freedom of religion is a political principle that strives to forbid government constraint on people's choices of beliefs. It requires also that people be free to act upon their beliefs. Religious freedom includes the freedom to worship, to print instructional material, to train teachers and to organize groups for their employment and schools in which to teach, including religion.
From the Colonial era to the present, religions and religious beliefs have played a significant role in the political life of the United States. Religion has been at the heart of some of the best and some of the worst movements in American history. Many of the early colonists fled religious persecution in their former countries and cherished their right to worship, as they believed in their new country. The guiding principles that the framers intended to govern the relationship between religion and politics are set forth in Article VI of the Constitution and in the opening 16 words of the First Amendment of the Bill of Rights. This constitutional framework reflects the deep concern that the founders of The American nation had about the relationship between church and state, and about the right of individuals to practice their religion freely. Now that America has expanded from the largely Protestant pluralism of the 17th century to a nation of some 3,000 religious groups, it is more vital than ever that every citizen understand the appropriate role of religion in public life and affirm the constitutional guarantees of religious liberty, or freedom of conscience, for people of all faiths and none.
The philosophical ideas and religious convictions of Roger Williams, William Penn, John Leland, Thomas Jefferson, James Madison and other leaders were decisive in the struggle for freedom of conscience. The United States is a nation built on ideals and convictions that have become basic democratic principles. These principles must be understood and affirmed by every generation if the American experiment in liberty is to endure.
Religious freedom is protected by two clauses in the First Amendment: the establishment clause and the free exercise clause.
The first of the First Amendment's two religion clauses reads: “Congress shall make no law respecting an establishment of religion ... .” Note that the clause is absolute. It allows no law. It is also noteworthy that the clause forbids more than the establishment of religion by the government. It forbids even laws respecting an establishment of religion. The establishment clause sets up a line of demarcation between the functions and operations of the institutions of religion and government in our society. It does so because the framers of the First Amendment recognized that when the roles of the government and religion are intertwined, the result too often has been bloodshed or oppression.
For the first 150 years of our nation’s history, there were very few occasions for the courts to interpret the establishment clause because the First Amendment had not yet been applied to the states. As written, the First Amendment applied only to Congress and the federal government. In the wake of the Civil War, however, the 14th Amendment was adopted. It reads in part that “no state shall ... deprive any person of life, liberty or property without due process of law... .” In 1947 the Supreme Court held in Everson v. Board of Education that the establishment clause is one of the “liberties” protected by the due-process clause. From that point on, all government action, whether at the federal, state, or local level, must abide by the restrictions of the establishment clause.
There is much debate about the meaning of the term “establishment of religion.” Although judges rely on history, the framers’ other writings and prior judicial precedent, they sometimes disagree. Some, including Chief Justice William Rehnquist, argue that the term was intended to prohibit only the establishment of a single national church or the preference of one religious sect over another. Others, including a majority of the justices of the current Supreme Court, believe the term prohibits the government from promoting religion in general as well as the preference of one religion over another. In the words of the Court in Everson:
“The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion... . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.'"
To help interpret the establishment clause, the Court uses several tests, including the Lemon, coercion, endorsement and neutrality tests.
The first of these tests is a three-part assessment sometimes referred to as the Lemon test. The test derives its name from the 1971 decision Lemon v. Kurtzman, in which the Court struck down a state program providing aid to religious elementary and secondary schools. Using the Lemon test, a court must first determine whether the law or government action in question has a bona fide secular purpose. This prong is based on the idea that government should only concern itself in civil matters, leaving religion to the conscience of the individual. Second, a court would ask whether the state action has the primary effect of advancing or inhibiting religion. Finally, the court would consider whether the action excessively entangles religion and government. While religion and government must interact at some points while co-existing in society, the concern here is that they do not so overlap and intertwine that people have difficulty differentiating between the two.
Although the test has come under fire from several Supreme Court justices, courts continue to use this test in most establishment-clause cases.
Lemon test redux
In its 1997 decision Agostini v. Felton, the Supreme Court modified the Lemon test. By combining the last two elements, the Court now used only the “purpose” prong and a modified version of the “effects” prong. The Court in Agostini identified three primary criteria for determining whether a government action has a primary effect of advancing religion: 1) government indoctrination, 2) defining the recipients of government benefits based on religion, and 3) excessive entanglement between government and religion.
Some justices propose allowing more government support for religion than the Lemon test allows. These justices support the adoption of a test outlined by Justice Anthony Kennedy in his dissent in County of Allegheny v. ACLU and known as the “coercion test.” Under this test the government does not violate the establishment clause unless it (1) provides direct aid to religion in a way that would tend to establish a state church, or (2) coerces people to support or participate in religion against their will. Under such a test, the government would be permitted to erect such religious symbols as a Nativity scene standing alone in a public school or other public building at Christmas. But even the coercion test is subject to varying interpretations, as illustrated in Lee v. Weisman, the 1992 Rhode Island graduation-prayer decision in which Justices Kennedy and Antonin Scalia, applying the same test, reached different results.
The endorsement test, proposed by Justice Sandra Day O’Connor, asks whether a particular government action amounts to an endorsement of religion. According to O’Connor, a government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion. She expressed her understanding of the establishment clause in the 1984 case of Lynch v. Donnelly, in which she states, “The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person's standing in the political community.” Her fundamental concern was whether the particular government action conveys “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” O’Connor’s “endorsement test” has, on occasion, been subsumed into the Lemon test. The justices have simply incorporated it into the first two prongs of Lemon by asking if the challenged government act has the purpose or effect of advancing or endorsing religion.
The endorsement test is often invoked in situations where the government is engaged in expressive activities. Therefore, situations involving such things as graduation prayers, religious signs on government property, religion in the curriculum, etc., will usually be examined in light of this test.
While the Court looks to the endorsement test in matters of expression, questions involving use of government funds are increasingly determined under the rubric of neutrality. Under neutrality, the government would treat religious groups the same as other similarly situated groups. This treatment allows religious schools to participate in a generally available voucher program, allows states to provide computers to both religious and public schools, and allows states to provide reading teachers to low-performing students, even if they attend a religious school. (See Zelman v. Simmons-Harris, 2002, and Mitchell v. Helms, 2000.) It also indicates that the faith-based initiatives proposed by President Bush might be found constitutional, if structured appropriately.
The concept of neutrality in establishment-clause decisions evolved through the years. Cited first as a guiding principle in Everson, neutrality meant government was neither ally nor adversary of religion. “Neutral aid” referred to the qualitative property of the aid, such as the funding going to the parent for a secular service such as busing. The rationale in Everson looked to the benefit to the parent, not to the religious school relieved of the responsibility of providing busing for its students.
Later cases recognized that all aid is in some way fungible, i.e. if a religious school receives free math texts from the state, then the money the school would have spent on secular texts can now be spent on religious material. This refocused the Court’s attention not on the kind of aid that was provided, but who received and controlled the aid. Decisions involving vocational training scholarships and providing activity-fee monies to a college religious newspaper on the same basis as other student groups showed the Court focused on the individual’s control over the funds and equal treatment between religious and non-religious groups.
In the 2002 case of Zelman v. Simmons-Harris, the plurality decision clearly defines neutrality as evenhandedness in terms of who may receive aid. A majority of the Court continues to find direct aid to religious institutions for use in religious activities unconstitutional, but indirect aid to a religious group appears constitutional, as long as it is part of a neutrally applied program that directs the money through a parent or other third party who ultimately controls the destination of the funds.
While many find this approach intuitively fair, others are dissatisfied. Various conservative religious groups raise concerns over diminishing the special place religion has historically played in constitutional law by treating religious freedom the same as every other kind of speech or discrimination claim. Strict separationist groups argue that providing government funds to religious groups violates the consciences of taxpayers whose faith may conflict with the religious missions of some groups who are eligible to receive funding using an “even-handed” approach.
Although the Court’s interpretation of the establishment clause is in flux, it is likely that for the foreseeable future a majority of the justices will continue to view government neutrality toward religion as the guiding principle. Neutrality means not favoring one religion over another, not favoring religion over non-religion and vice versa.
Free Exercise Clause
"Congress shall make no law … prohibiting the free exercise (of religion)" is called the free-exercise clause of the First Amendment. The free-exercise clause pertains to the right to freely exercise one’s religion. It states that the government shall make no law prohibiting the free exercise of religion.
Although the text is absolute, the clause should not be interpreted to mean absolute right to a course of conduct just because it is permitted by one's religion. The courts place some limits on the exercise of religion. The Supreme Court has held that religious freedom must give way to reasonable restrictions that have been adopted to protect the health, safety and convenience of the entire community. For example, courts would not hold that the First Amendment protects human sacrifice even if some religion required it. The Supreme Court has interpreted this clause so that the freedom to believe is absolute, but the ability to act on those beliefs is not.
Questions of free exercise usually arise when a citizen’s civic obligation to comply with a law conflicts with that citizen’s religious beliefs or practices. If a law specifically singled out a specific religion or particular religious practice, under current Supreme Court rulings it would violate the First Amendment. Controversy arises when a law is generally applicable and religiously neutral but nevertheless has the “accidental” or “unintentional” effect of interfering with a particular religious practice or belief.
The Supreme Court has been closely divided on this issue. In its 1990 decision Employment Division v. Smith, the Court greatly narrowed a 35-year-old constitutional doctrine that had required a government entity to prove that it had a “compelling interest” whenever a generally applicable law was found to infringe on a claimant’s religious beliefs or practices. Under current constitutional law as explained in Smith, a government burden on a religious belief or practice requires little justification as long as the law in question is determined to be generally applicable and does not target a specific religion or religious practice. The Court in 1993 clarified how these principles were to apply in Church of the Lukumi Babalu Aye v. City of Hialeah. There, the Court closely analyzed a facially neutral and generally applicable law and determined that it was neither neutral nor generally applicable. Since the law burdened a religious practice (here the animal sacrifice ritual of the Santeria religion), the government would have to demonstrate that it had a compelling interest in passing the law. The Court would then “strictly scrutinize” the government’s claims. In Hialeah, the government could not meet this burden and the law was stuck down.
The first Supreme Court case that addressed the issue of free exercise was Reynolds v. U.S. (1878), in which the Court upheld a federal law banning polygamy over objections by Mormons who claimed that the practice was their religious duty. The Court in Reynolds distinguished between religious belief and religious conduct or action, stating that Congress was “deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive to good order.” Recognizing the religious defense, the Court said, would “permit every citizen to become a law unto himself.” While the government could not punish citizens because of their religious beliefs, it could regulate religiously motivated conduct, provided that it had a rational basis for doing so. This “rational basis test” became the standard for determining whether a law that impinged on a religious practice violated the free-exercise clause. As that standard was easy for the government to satisfy, for almost a century the courts generally rejected religious-freedom claims against generally applicable laws.
It is important to note also that until the decision of Cantwell v. Connecticut (1940), opened the door to federal litigation against the states for religion-clause claims (by ruling that the 14th Amendment’s protections against state action “incorporates” or absorbs, the free-exercise clause of the First Amendment) there was no cause of action against the state for laws that may have impinged on religious practices. In effect, the Supreme Court did not have opportunity to review this issue until the mid-20th century, when various free-exercise clause cases made their way through the state courts to the Supreme Court.
In its 1963 decision Sherbert v. Verner, the Supreme Court found that the Constitution afforded at least some degree of government accommodation of religious practices. Adele Sherbert, a Seventh-day Adventist, was discharged by her South Carolina employer because she would not work on Saturday, her faith’s Sabbath. When she could not find other employment that would not require her to work on Saturday, she filed a claim for unemployment benefits. South Carolina law provided that a person was ineligible for benefits if he or she failed, without good cause, to accept available suitable employment when offered. The state denied Sherbert benefits, saying she had not accepted suitable employment when offered, even though she was required to work on her Sabbath. The decision was upheld by the South Carolina Supreme Court.
The U.S. Supreme Court reversed the state court decision. Justice William Brennan wrote that although the Court had theretofore “rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs and principles,” the conduct or actions so regulated had “invariably posed some substantial threat to public safety, peace or order.” Since Sherbert’s “conscientious objection to Saturday work” was not “conduct within the reach of state legislation,” any law that resulted in an incidental burden to the free exercise of her religion must be justified by a “compelling state interest in the regulation of a subject within the State’s power to regulate.”
Thus, in Sherbert, the Court adopted a “compelling interest” standard that government must meet when a generally applicable law unintentionally burdened a claimant’s religious practices and beliefs. The state in Sherbert could not demonstrate such compelling interest: the mere possibility that allowing exemptions to the unemployment compensation laws for Saturday worshipers might result in fraudulent or spurious claims was not sufficiently compelling, the Court reasoned. Even if an increase in fraudulent claims could be proved, the state would nevertheless have to show that no alternative regulations could “combat such abuses without infringing First Amendment rights,” thus also introducing a doctrine requiring the government to demonstrate that it used the “least restrictive” means when enacting legislation that burdened a religious belief or practice.
It is interesting and important to note the legal and social context in which Justice Brennan articulated this “compelling state interest” standard for free-exercise clause claims. The civil rights litigation of the 1950s and 1960s had greatly informed the Court’s perspective. It had become clear to Brennan that the Court must give a “heightened scrutiny” to cases in which fundamental rights were at stake and require the state to demonstrate that the law in question served only interests that were of paramount importance. A law having a merely “rational,” important,” “valid” or “legitimate” purpose could not withstand a claim that it infringed on a fundamental right.
In 1972, the Court reaffirmed that a generally applicable law, “neutral on its face” may nonetheless violate the First Amendment if such law “unduly burdens the practice of religion.” In Wisconsin v. Yoder, the Court held that the state’s interest in requiring a child’s compulsory attendance at school through age 16, though important, could not withstand a free-exercise claim by members of the Amish religious sect. An Amish family claimed that requiring their children to attend public schools after age 14 would expose them to “wordly influences” against their traditionalist beliefs and undermine the insular Amish community. The Court in Yoder noted that the purpose of mandatory education was to develop a productive, self-reliant citizenry, but that the state’s purpose must be examined in light of the particular circumstances of the case. Since the Amish had a 200-year tradition of training their adolescents to be productive members of their “separated agrarian” community, the government’s interests could still be achieved by requiring education only through age 14. This would obviate the burden to the Amish community’s right to freely exercise its religion, while the state’s overriding interest would still be served. In a clear statement of its doctrine, the Court in Yoder held that “[o]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”
After Sherbert and Yoder, the Court applied the religious-exemption doctrine by examining two questions: Has the government significantly burdened a sincerely motivated religious practice? If so, is the burden justified by a compelling state interest? Increasingly, however, the Court narrowed the concept of a “significant burden” to religion and in a series of decisions throughout the 1980s, the Court rejected many free- exercise claims on this basis. The Court also became more willing to label state interests as “compelling” in cases where religious practice was significantly burdened by a general law.
The Smith revolution
It was clear that the Supreme Court was struggling with the issue of requiring accommodations based on the compelling-interest standard. In its 1990 decision Employment Division v. Smith, still a highly controversial opinion, the Court ruled that it would no longer give heightened scrutiny to the government’s refusal to grant exemptions to generally applicable laws that unintentionally burden religious beliefs or practices.
In Smith, two counselors were fired from their jobs with a private drug rehabilitation organization because they ingested peyote at a ceremony of the Native American Church. The two men, members of the Native American Church, were determined to be ineligible for unemployment benefits because they had been fired for work-related “misconduct.” The Oregon Supreme Court held that the prohibition against sacramental peyote use was invalid under the free-exercise clause and thus the men could not be denied unemployment benefits for such use. The U.S. Supreme Court held that the free-exercise clause permits the state to prohibit sacramental peyote use and the state can thus deny unemployment benefits to persons discharged for such use.
Justice Antonin Scalia, writing for the majority, declined to apply the balancing test of Sherbert v. Verner, greatly limiting the scope of that precedent. Instead Scalia reached back to the early opinion in Reynolds v. U.S. (the polygamy case), claiming that to require the government to show a “compelling interest” in enforcing a generally applicable law when such a law impedes on religiously motivated conduct permits the individual “to become a law unto himself,” “invites anarchy” and would produce a “constitutional anomaly.” It would, Scalia claimed, make a citizen’s obligation to obey the law contingent on his religious beliefs. Scalia found that the Court had never in fact invalidated any government action on the basis of the Sherbert compelling-interest test except the denial of unemployment compensation (that Smith was itself an unemployment compensation case is not addressed in the decision). Scalia further stated that the only decisions in which the Court had held that the First Amendment barred the application of a generally applicable law to religiously motivated conduct involved not just free-exercise clause claims, but those claims in conjunction with other constitutional protections, such as freedom of speech and the press or the right of parents to direct the education of their children (Yoder). The Smith case, the Court said, did not involve such a “hybrid situation.”
Justice Sandra Day O’Connor, although concurring in the outcome, vigorously disagreed with the Court’s abandonment of the “compelling interest” standard, as did Justice Harry Blackmun in the dissent. O’Connor reasoned that the free-exercise clause provides relief from a burden imposed by government whether the burden is imposed directly through laws that prohibit specific religious practices, which would be clearly unconstitutional, or indirectly through laws that “in effect make abandonment of one’s own religion … the price of an equal place in society.”
In the three years following Smith, more than 50 reported free-exercise cases were decided against religious groups and individuals. As a result, more than 60 religious and civil liberties groups, including the American Civil Liberties Union, Concerned Women for America, People for the American Way and the National Association of Evangelicals, joined to draft and support the passage of the Religious Freedom Restoration Act — or RFRA. The act, which was signed by President Clinton on Nov. 17, 1993, restored the compelling-interest test and ensured its application in all cases where religious exercise is substantially burdened.
Also in 1993, the Supreme Court re-visited the religious exemption issue in City of Hialeah. After a Santeria church announced plans to establish a house of worship in Hialeah, the city enacted an ordinance prohibiting the ritual slaughter or sacrifice of animals, which is one of the religion’s principal forms of devotion. The Supreme Court found that the history of the ordinance showed that it specifically targeted the Santeria practice of animal sacrifice while providing numerous exemptions for other instances of animal slaughter, including Kosher slaughter. Since the ordinance both burdened religious practice and was neither neutral nor generally applicable, the Court would apply “strict scrutiny” and the “compelling interest” standard to the city’s actions. The ordinances could not withstand such scrutiny, the Court stated, holding them invalid under the free-exercise clause.
After City of Hialeah, the inquiry into whether a law is in fact “neutral” and “generally applicable” has provided claimants with ammunition in free-exercise clause claims (see Fraternal Order of Police v. City of Newark, and Keeler v. Mayor of Cumberland). Many “general” laws provide categorical exceptions of one kind or another. Arguably, once a legislature has carved out an exemption for a secular group or person, the law is no longer “generally applicable,” and thus subject to the City of Hialeah standard of strict scrutiny. Similarly, a claimant may prevail if he can prove that a law of general applicability that burdens religion is unevenly enforced (see Rader v. Johnston). However, some lower courts have interpreted City of Hialeah to mean that religious claimants must demonstrate an anti-religious motive when challenging a law that on its face is generally applicable, a difficult standard to prove.
While widely supported, RFRA was short-lived. On June 25, 1997, the Supreme Court, by a vote of 6-3, struck down the act as applied to state and local governments. The Court in City of Boerne v. Flores held that Congress overstepped its bounds by forcing states to provide more protection for religious liberty than the First Amendment, as interpreted by the Supreme Court in Employment Division v. Smith, required. While RFRA no longer applies to the states, it is still applicable to the federal government, as seen recently in several district court decisions.
In 2000, President Clinton signed the Religious Land Use and Institutionalized Persons Act, or RLUIPA, which mandates the use of the compelling-interest and least- restrictive means standards for free-exercise cases that involve infringements on religion from land-use laws and to persons institutionalized in prisons, hospitals and retirement or nursing homes. Cases challenging the constitutionality of RLUIPA are also making their way through the federal appellate courts.
Currently, 11 states have passed their own RFRAs, all of which
reinstate the compelling-interest test to varying degrees.
The jurisprudence regarding religious exemptions to generally applicable laws is clearly still in flux, providing an uneven and uncertain patchwork of protections to religious adherents.
The establishment and free clauses are closely related and often come into conflict. Ensuring that a law does not establish a religion can interfere with free exercise of religion and sometimes with freedom of speech. Consider the case of evangelical Christian student group at a state university which applied for funding for its student publication. The university funded other student groups through this funding process. In order to avoid what it feared might become establishment of religion issue (by funding religious publication), the university refused the funding request. In 1995, the Supreme Court said that the university had to treat religious and nonreligious activities equally for funding purposes. The Court held that failure to treat religious publication equally was a violation of freedom of speech.
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