Freedom of Religion

Freedom of Religion Amendment

Freedom of religion is found in the Constitution - specifically in the Bill of Rights!

Constitution

The first draft of the Constitution didn't include any individual rights, including freedom of religion. When Congress came together in 1787 for the Constitutional Convention, they mostly focused on creating the framework for the government. However, when the Constitution went to the states for ratification, some of them said they would only agree to ratify if a Bill of Rights was added. The Bill of Rights (made up of the first ten amendments to the Constitution) would include a list of rights that the government couldn't violate.

We can find religious freedom in the Bill of Rights, specifically in the First Amendment! Below is the text:

Establishment Clause

The first phrase in the First Amendment is called the "Establishment Clause":

This clause is seen as codifying the separation between the church and state by saying that the government can't establish an official religion. It has been interpreted to mean that the government can neither support nor inhibit religion (or religion over non-religion and vice versa).

Free Exercise Clause

The Free Exercise Clause immediately follows the Establishment Clause:

The Free Exercise Clause means that the government can't interfere with individuals' religious practices.

These two clauses together are interpreted as the freedom of religion. The main difference is that the Establishment Clause focuses on restraining the government's power while the Free Exercise Clause focuses on protecting individual rights.

Freedom of Religion Examples

Many Supreme Court cases have focused on whether various religious practices unconstitutionally break the law.

Funding for Religious Schools

One of the main ways the government interacts with schools is through funding. This can lead to conflicts over whether the government should be providing funding to institutions that are religiously affiliated (for example, parochial schools) and whether it violates the Establishment Clause.

One of the first cases happened in 1947 when New Jersey started providing funding for transportation to get students to and from school (Everson v. Board of Education). Private schools (many of which were religious) were also eligible. The Supreme Court ruled that because the practice provided a benefit to children and their parents (rather than directly to the religious schools), it was permissible.

Figure 2: Catholic schools (like the one pictured above) often have a strong religious message and mission, leading to questions about whether the state can provide them with funding. Source: Mx. Granger, Wikimedia Commons, CC-Zero

Lemon v. Kurtzman

A few decades later, the Supreme Court case of Lemon v. Kurtzman (1971) created strict standards for government funding in religious schools. The Supreme Court ruled that state laws in Pennsylvania and Rhode Island that provided funding for textbooks and teacher salaries at religious schools violated the Establishment Clause. The court created the Lemon Test, which became a precedent for several decades. According to the test, in order for a law to be in line with the Establishment Clause, it has to:

• Have a secular purpose
• Neither advance nor inhibit religion
• Not foster an excessive government entanglement with religion.

However, a few decades after that, the Supreme Court decided to throw out the Lemon Test in Zelman v. Simmons-Harris (2002). The case centered around an Ohio policy allowing students to use state-funded vouchers to go to a school of their choice, including religious schools. The Supreme Court ruled that the policy did not violate the Establishment Clause because it provided a benefit to students and expanded private choice rather than focusing on funding religious schools.

Prayer in Schools

Another area of contention is whether prayers should be allowed in schools.

In the case of Engel v. Vitale (1962), a New York school organized a prayer at the beginning of the school day. A group of parents opposed the prayer and argued it violated the Establishment Clause, while the school said that it was an optional prayer so it should be allowed. The Supreme Court ruled that it did violate the Establishment Clause because it breached the separation between church and state.

However, in 2022, the Supreme Court ruled in favor of a coach who prayed with his team in Kennedy v. Bremerton. The coach said that he was exercising his rights under the Free Exercise Clause. The Supreme Court advised courts to ignore the Lemon Test (see above) and instead to look at "historical practices and understanding."

Businesses

Another issue is when businesses go against certain laws because they argue that it violates their religious beliefs.

Newman v. Piggie Park (1968)

The owner of a chain of restaurants called Piggie Park denied service to Black people because he said that racial integration was against his religious beliefs. The Supreme Court rejected this reasoning and ruled against the chain.

Burwell v. Hobby Lobby (2014)

The Supreme Court ruled in the 2014 Burwell v. Hobby Lobby case that business entities can be considered "individuals" and receive the same protections under freedom of religion as citizens can. The case revolved around the issue of birth control and the ACA (Affordable Care Act). The ACA required businesses to cover contraception in their employer-offered healthcare, but the owners of Hobby Lobby (a chain of craft stores) said that contraception was against their religious beliefs.

The Supreme Court ruled in Hobby Lobby's favor, saying that for-profit businesses - like non-profits and religious organizations - should be granted an exemption from the birth control mandate if it's against their religious beliefs.

Freedom of Religion Act

In recent decades, Congress passed a law to protect religious freedom even more.

Religious Freedom Restoration Act (RFRA)

The Religious Freedom Restoration Act was passed in 1993 to improve religious freedom by creating strict standards for any laws that inadvertently interfere with religious practices.

Employment Division v. Smith (1990)

The RFRA was spurred by the Supreme Court case Employment Division v. Smith. Two Native American men were fired after they tested positive for Peyote, a hallucinogenic cactus, at work. The state denied them unemployment benefits because they had been fired due to misconduct since peyote is an illegal drug. However, the use of peyote is a sacred part of the Native American church and is used in religious and healing rituals. They argued that the state had violated their rights under the Free Exercise Clause.

Figure 3: Pictured above is a Peyote ceremony from 1892. Source: unbekannt 1892, Wikimedia Commons

The Supreme Court ruled against them, saying that they feared that permitting people to claim religious beliefs around peyote would open the door to everyone being able to break whatever law they wanted as long as they claimed it was part of their religious beliefs.

The decision sparked outrage across the country and Congress moved to pass the RFRA.

Freedom of Religion and Belief

The inclusion of freedom of religion in the United States Constitution also inspired a similar right in the United Nations' Universal Declaration of Human Rights. The Declaration was created in 1948 following World War II and was intended to be a unifying force as the world attempted to move forward following the war's devastation. Freedom of religion was expanded to include belief to reflect that people should be allowed to act in line with their conscience, whether they consider it to be religious or not.