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.
Establishment 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 nations 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.
Lemon test
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.
Coercion test
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.
Endorsement test
The endorsement test, proposed by Justice Sandra Day OConnor, asks
whether a particular government action amounts to an endorsement of religion.
According to OConnor, 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. OConnors 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.
Neutrality
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 Courts 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 individuals 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 Courts 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 ones
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 citizens civic
obligation to comply with a law conflicts with that citizens 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.
Recent interpretation
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
claimants 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 governments
claims. In Hialeah, the government could not meet this burden and the
law was stuck down.
Pre-Smith understanding
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 Amendments
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 faiths 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 Sherberts 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 States 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 claimants 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 Courts 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 states interest in requiring a childs
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 states 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 governments interests could still be
achieved by requiring education only through age 14. This would obviate the
burden to the Amish communitys right to freely exercise its religion, while
the states 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 governments 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 citizens 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 OConnor, although concurring in the outcome,
vigorously disagreed with the Courts abandonment of the compelling interest
standard, as did Justice Harry Blackmun in the dissent. OConnor 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 ones own religion the price
of an equal place in society.
Post-Smith implications
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
religions 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
citys 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.
Learn more
about freedom of religion by visiting the following Web sites:
Historic Supreme Court Decisions