FREEDOM OF RELIGION
"Freedom of religion is the most inalienable and sacred of all human rights" (Thomas Jefferson)

    Americans are a religious people with over 250 denominations and hundreds of smaller "fringe" groups. Sixty to seventy percent of the population belongs to one of 340,000 churches, temples, mosques, and synagogues. Nine out of ten Americans say they believe in God or a Supreme Being. Americans rank second (behind only Malta) when rating the importance of God in their lives. 

    Nine out of the original thirteen colonies had established state religions. The predominant religious groups back then were Puritans, Anglicans, Calvinists, Presbyterians, Congregationalists, and Baptists. The predominant minority groups were Jews, Quakers, and Catholics, although a few Amish and Mennonites existed in Pennsylvania, and Methodist and Baptist sects didn't really proliferate until the Second Great Awakening. Prior to the Constitution, only two states - Maryland and Rhode Island - allowed religious freedom. The remaining eleven states had various laws restricting the practice of minority religions, and almost all states, even the most tolerant, required holders of public office to profess faith in God the Father and Jesus Christ His Only Son. Eventually, most of the states abolished these oppressive laws. Those that did not, or were slow to do so, and banned creationism in the classroom became part of what was to be called the Bible Belt.

    It was in the midst of all this diversity that the freedom of religion debates took place among the founding fathers. There was divisiveness of opinion. Many of the liberal philosophers they looked to for other freedoms, like John Locke, did not oppose the idea of a national church. Massachusetts wanted the national religion to be Puritanism; Virginia Anglicanism; and Delaware advocated a general Christianity. The Anti-Federalists from New York and some of the southern states opposed establishing any national religion at all. The debates seemed to center around which religion to pick that would be the most tolerant.

    It was then that James Madison began arguing for the broader principle of freedom of conscience than simply toleration. Thomas Paine wrote that tolerance was another form of despotism. The leading advocates of toleration were George Mason and Patrick Henry (then governor of Virginia). The leading advocates of freedom of conscience were Thomas Jefferson and James Madison. Together, Jefferson and Madison would establish a principle the likes of which were unheard of before - the separation of church and state. They insisted that only through separation of church and state could civil liberties be effectively maintained. They successfully argued that liberty of conscience was the foundational right, a "square one" natural right which exists before government takes its first breath. By the way, Henry's "Give me Liberty or give me death" statement had nothing to do with the religious freedom debates. It was a phrase he had uttered long before.

    America's stance toward separation of church and state would not have been possible if not for the influence of Roger Williams, often considered America's father of religious liberty. Williams broke with James Cotton, a Puritan leader of the Massachusetts Bay Colony and fled southward to found the new colony of Rhode Island, a sanctuary for people of every religious persuasion. Williams believed in the "invisible church" concept (from Romans 13: "Let every soul be subject unto the higher powers, for there is no power but God; the powers that be are ordained of God.") He also believed that any pagan or non-Christian person holding office was just as skilled to do so as Christians. Williams rejected the idea that any nation of Earth could become the new Israel, and he said that no state should interfere with the first four Ten Commandments, which were private. Williams is known for his doctrine of "soul liberty", a kind of renewed saint concept based on a personal relationship with God. Williams' phrase about Rhode Island being the "sewer of New England" was later converted into the phrase "America as melting pot". 

WHAT IS RELIGION?

    The word "religion" is nowhere defined in the Constitution, which raises the question "What is a religion?" The answer illustrates the reason why lawyers and scholars often refer to this area as the most frustrating and perplexing area of Constitutional Law. To this day, the Court has literally flip-flopped its position several times, producing little by way of consistent tests that can be traced to common origins. To be fair, that's not the Court's fault because who, if anybody, could decipher what the founding fathers intended or meant since they themselves were historically divided. 

    To make matters worse, this part of the First Amendment has contradictory clauses. The first clause, the Establishment clause (Congress should make no law respecting the establishment of religion) uses absolute language which seems to imply that there should be as little religion as possible, a "wall of separation" if you will.  However, former Chief Justice Rehnquist had this to say about that: "It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history....The establishment clause has been expressly freighted with Jefferson's misleading metaphor for nearly forty years....There is simply no historical foundation for the proposition that the framers intended to build a wall of separation between church and state....and recent court decisions are in no way based on either the language or the intent of the framers."  The second clause, the Free Exercise clause (Congress should make no law...prohibiting the free exercise of religion) also uses absolute language which seems to imply that there should be as much religion as possible. The first clause is sometimes referred to as FREEDOM FROM religion and the second clause as FREEDOM OF religion. The Supreme Court, however, has never abided by a literal reading of the "no law" part of the clauses, and seems willing to countenance a variety of establishments and regulation of exercise.

    Although freedom of religion is at the top of the list of preferred freedoms, it is closely linked with other freedoms such as speech, press, and assembly. These connections make it difficult to sort out exactly what a definition of religious liberty would include, but a good attempt would go like this -- freedom of religion implies unfettered freedom to worship, to print instructional materials, and to train teachers and organize schools in which to teach things that include religion. First, however, we will concern ourselves with the most controversial part of this Amendment - the Establishment clause.

THE ESTABLISHMENT CLAUSE
Congress should make no law respecting the establishment of religion

    This is nothing less than an expression of SEPARATION OF CHURCH AND STATE doctrine. The Lemon test (explained below) is most commonly used to decide cases involving separation of church and state. It is, like the idea of freedom from religion, best seen as a political principle that forbids governments from ever stepping in or even implying which religion is recognized, favored, ascendant, more tolerant, or better. The fear is that dictatorships arise whenever this happens, but on a comparative note, the countries of England, Scotland and Sweden have successfully established democracies with official state religions.

    There are three (3) points of view on the Establishment clause. It's possible to find both historical and bibliographic support, in fairly equal amounts, on any one of these positions.

1. the separationist position - this is the view of Jefferson, Madison, Professors Levy, Wills, and Justice Hugo Black that a solid "wall of separation" exists between church and state, prohibiting most, if not all, forms of aid or support for any religion. 

2. the non-preferentialist position - this is the view of Professor Cord and Justices O'Connor, Kennedy, and Souter. Professor Cord prefers to call it a non-absolutist separationist approach. It holds that even though a wall of separation exists, it only prohibits government from favoring one religion over another. Nondiscriminatory aid or support is permissible.

3. the accommodationist position - this is the view of Professor Berns, Chief Justice Rehnquist, and former attorney general Edwin Meese that the only thing prohibited is the establishment of an official national religion. Chief Justice Rehnquist has, in fact, called the metaphor of "wall of separation" bad history. 

    The different viewpoints boil down to interpretation of the word "respecting". To some, it means something less than establishing - honoring or concerning religion.  To others, it means more than establishing - not just prohibiting establishment, but all laws on religious subjects, respectively.

    There are many significant cases prior to the Lemon test, representing each of the above viewpoints in one way or another, although more unanimous (9-0) decisions took the separationist position, but it depends on the issue in each case. In general, the trend from 1947-1971 is that the Court APPROVED of public transport to religious schools, public support of Catholic hospitals, and the loaning of secular textbooks to religious schools; and DID NOT APPROVE of school prayer in public schools, mandatory Bible-reading, moments of silence, and bans on the teaching of creationism. Only one case articulated clear standards that would later become part of the Lemon test.  

The secular purpose and primary effect tests - from Abington School District v. Schempp (1963) which involved readings of the Lord's Prayer in public schools. The Court ruled against such readings because they (a) serve no secular purpose, and (b) have the primary effect of advancing one religion (Christianity) over another.

The secular purpose, primary effect, and excessive entanglement tests - from Lemon v. Kurtzman (1971), otherwise known as the Lemon test, which involved a balancing formula in providing public support to religious schools. The Court ruled in favor of a fairer balancing formula because there was nothing ideological in textbooks and teachers, which the money went for. The court was convinced that the money was going towards education, hence (a) secular purpose; that the amount did not promote or devalue any religion, hence (b) primary effect; and that the teachers were not using state money to teach religion, hence no (c) excessive entanglements.    

    The Lemon test is still good law, although many believe its days are numbered. The current members of the Supreme Court themselves are dissatisfied with Lemon, most notably some of the Reagan appointees. In a series of concurring and dissenting opinions, the following post-Lemon approaches are recognized:

The Endorsement Test (articulated by Justice O'Connor and occasionally adhered to by Justices Stevens and Souter) - this simple test makes it unconstitutional if the government sends a signal that one religion is favored or preferred over another, making some people feel as "outsiders" and other people feel like "insiders."

The Coercion Test (articulated by Justice Kennedy and occasionally adhered to by Justices Scalia, Thomas, and Rehnquist) - this simple test allows government to "recognize" or "accomodate" a religion, but bars any policy that appears to coerce anybody to support or participate in a religion due to the example of public support.

    Continuing divisions among the Justices prevent them from arriving at a majority opinion in many cases. In such cases, what is known as a plurality opinion comes forth, but it doesn't have the same status as precedent. The Endorsement and Coercion tests are just that - plurality opinions - and no majority has emerged, or is likely to in the near future, to change the fact that the Lemon test stands as the rule of precedent.

THE FREE EXERCISE CLAUSE
 Congress should make no law...prohibiting the free exercise {of religion}

    This part of the First Amendment is less controversial in some ways and more controversial in other ways. There's less of the widespread public reaction found with Establishment Clause rulings, but more the risk of discrimination. It's often thought that the Free Exercise Clause is applicable to the states directly through the Due Process and Equal Protection clauses of the Fourteenth Amendment. To understand why, one needs to know that Free Exercise is all about the approval of denominations, sects, cults, "splinter groups", and in fact, anyone who wants to set themselves up in the tax-exempt business of soliciting funds without a license - in other words, by starting a church. As with other non-literalist interpretations of the Constitution, this area is no exception. The Court is determined to draw the line, to make limitations, and to cast a suspicious eye over abuses of free exercise.

    The Free Exercise clause opens the door to analysis of religious actions and practices, not just beliefs. This is known in Constitutional Law as the belief-practice distinction, and it is constantly being tested in various ways on a case-by-case basis. It means that the Court can mix its findings - it can rule that a religious belief is constitutionally protected while at the same time outlaw a certain practice that adherents of that belief engage in. For example, the Court can declare that believers in a UFO cult comprise a constitutionally recognized religion, but it can outlaw any specific practice engaged in by followers of that religion, such as baptism by electrical shock. We've already seen this kind of distinction in action at the first case mentioned on the top of this page, Reynolds v. U.S. (1897) where the Court approved the Mormon religion but outlawed polygamy. The Mormons later revised their position on polygamy. The Court in 1963 began using strict scrutiny in place of the belief-practice distinction, but the analysis remains the same.

    Under strict scrutiny, members of the clergy shall not be deprived of their normal rights of citizenship, such as standing for elective office or being appointed to any other public post. Objectors to military service on religious grounds shall be given such full or partial exemption as Congress may decide, keeping in mind the paramount interests of the defense and survival of the Nation. Prison inmates shall have the right to practice their religions respected to the extent that prison discipline and safety requirements are not seriously compromised thereby. Persons directly injured in their own religious beliefs shall have standing to complain and request judicial remedies in any State or Federal court having the required jurisdiction.

    The one and only consistent principle in Free Exercise jurisprudence is the neutrality doctrine. Whatever the government outlaws or prohibits must be totally neutral. You can't prohibit the Jehovah's Witnesses from door-to-door solicitations unless you prohibit all door-to-door solicitors. In many ways, that's just an extension of free speech jurisprudence. Another principle is the valid secular policy test which means that not only any restriction on religious practice must be in the interests of public safety, peace, comfort, or convenience, but that any exemption or privilege granted to any one group of religious practitioners must coincide with what nonreligious nonpractitioners ordinarily receive. In other words, God help anybody who claims their religion requires them to take Monday through Friday off, but the issue becomes a bit more testy with parents who keep their children from enrolling in school. So-called "Blue laws" which make it illegal to open stores on Sunday are constitutional because of fortuitous happenstance that most people take Saturday or Sunday off.  The following cases illustrate some of the thinking behind the evolution of standards in this area:

The valid secular policy test - from Minersville School District v. Gobitis (1940) which involved the Jehovah's Witnesses refusing to salute the flag or recite the pledge of allegiance. The Court ruled that they had to do these things because the state's valid secular reason was to foster patriotism. Four years later, however, the Court had to reverse this holding because of all the attacks on Jehovah's Witnesses who continued not to do it.

The Sherbert-Yoder compelling interest test - from two cases, Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) which involved Seventh-Day Adventists and Amish, respectively, who refused to work on Saturday and were denied unemployment benefits, and who preferred to educate their children at home. The Court ruled that benefits and homeschooling should be allowed because the government's rationales were too vague, to prevent fraud and discourage ignorance. A special burden is on the state to show a specific, compelling interest to regulate when a valid request for religious exemption is presented. 

The Smith test - from Employment Division, DHR of Oregon v. Smith (1990) which involved the use of peyote hallucinogen as a sacrament in the Native American Church. The Court ruled against allowing this practice because free exercise doesn't provide for across-the-board exemptions from criminal law.

    The Smith test stands as the most commonly used standard in Free Exercise jurisprudence, although Justices O'Connor and Breyer advocate the Sherbert/Yoder test. As long as Smith stands, so go the hopes of any religious groups which aspire to exemptions or immunities from criminal law-related civic obligations -- compulsory military service, payment of taxes, health and safety regulations, child welfare laws, compulsory vaccination laws, drug laws, traffic laws, wage laws, animal cruelty laws, and environmental protection laws.  

POSTSCRIPT: SOME INTERESTING CASE LAW

• Polygamy (multiple marriages) & bigamy laws - this has involved the Mormon religion, mostly, and polygamy is NOT protected, but governments generally have a free hand on whether to prosecute or not given the circumstances of the situation.

• Wearing of yarmulke (Jewish skullcap symbolizing private prayer) in public places or during government (military) employment - this has mainly involved the Jewish religion, and since silent prayer has been made voluntary in public schools, the issue remains unsettled, on a state-by-state basis, when and where one can ask for the hat to be removed.

• Use of hallucinogenic drugs, poisonous snakes, etc. at religion ceremonies - this has mainly involved Native American religions and protestant fundamentalist branches. In 1993 (in all but North Carolina), the Native Americans won their rights to use peyote, but snake handling hasn't been protected.

• Handing out religious literature at state fairs, airports, door-to-door, etc. - this has involved many groups, from the Hare Krishnas to the Jehovah's Witnesses - the handing out of literature is OK, but the courts have looked negatively on the unlicensed solicitation of funds.

• Wearing of robes, masks, veils, or other disguises - this has mainly involved the Muslim religion, and Muslim women specifically. The courts have ruled unconstitutional the idea that due to bank robberies, thefts, and crimes at malls, officers can enforce crime prevention ordinances outlawing the wearing of veils, robes, or other disguises if it is done in the name of religion.

• Exemption from military service on religious grounds - the Court has never held that the free exercise clause requires the government to exempt people on these grounds.

• Autopsies - some religions, like the Amish and others, do not condone the law enforcement practice of conducting an autopsy to determine the cause of death.

• Refusing to pay taxes, abide by motor safety laws, carry liability insurance, etc. - this has mainly involved Amish and other groups who won't place reflecting triangles on their buggies, etc., and the court has ruled there will be no exceptions.

• Pledges of allegiance, flag-saluting, hand-over-heart, etc. - schools can't require students to do this, but the Boy Scouts won a case in 1993 upholding their requirement to pledge a vow before God.

• Christmas displays in public parks - the Equal Access Law of 1984 requires that if a display is put up for one religion, then displays of all other religions must be put up.

• Sacrifice of small animals (chickens, goats, ducks, etc.) - this has mainly involved satanist groups or the Santeria movement (an African religion mostly confined to the Hialeah suburb of Miami). The satanists haven't won much, but the Santeria practice has been protected due to the court's viewing it as a central part of their religion.

• Live Free or Die motto - I forget which state put this on their license plates, New Hampshire, I think, but the courts ruled it as a religious advertisement that crossed the line.

• In God We Trust motto - the courts have ruled that money changes hands so quickly and is so widely circulated that the motto doesn't offend anyone as much as a specific kind of display would.

INTERNET RESOURCES
Establishing the History of the Establishment Clause
Freedom Forum's Religious Liberty Page
Institute for First Amendment Studies
People for the American Way
Political Science Papers on the Relationship between Church and State
The Religious Tolerance Website

PRINTED RESOURCES
Alley, R. (1988). The Supreme Court on Church and State. NY: Oxford Univ. Press.
Berns, W. (1976). The First Amendment and the Future of American Democracy. NY: Basic Books.
Choper, J. (1995). Securing Religious Liberty: Principles for Judicial Interpretation of the Religion Clauses. Chicago: Univ. of Chicago Press.
Cord, R. (1988). Separation of Church and State. Grand Rapids, MI: Baker Book House.
Hamburger, P. (2004). Separation of Church and State. Cambridge, MA: Harvard Univ. Press.
Ivers, G. (1993). Redefining the First Freedom. New Brunswick: Transaction.
Levy, L. (1994). The Establishment Clause. Chapel Hill: Univ. of N. Carolina Press.
Malbin, M. (1978). Religion and Politics: The Intentions of the Authors of the First Amendment. Washington D.C.: American Enterprise Institute.
Morgan, R. (1972). The Supreme Court and Religion. NY: Free Press.
Sheffer, M. (1999). God versus Caesar: Belief, Worship, and Proselytizing. Albany: SUNY Press.
Wills, G. (1990). Under God. NY: Simon and Schuster.

Last updated: July 02, 2006
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