The 1st Amendment to the U.S. Constitution requires that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There are two parts to this constitutional provision about religion: the establishment clause and the free exercise clause.
Establishment clause
Americans have always agreed that the establishment clause bans government actions establishing or promoting an official religion. Americans have argued vehemently, however, about whether the establishment clause strictly prohibits all government involvement in support of religion.
Thomas Jefferson wrote in 1802 that the intent of the 1st Amendment was to build “a wall of separation between church and state.” Justice Hugo Black agreed with Jefferson in writing for the Supreme Court in Everson v. Board of Education of Ewing Township (1947), the case that began the ongoing contemporary debate about the meaning of the establishment clause. Justice Black wrote that neither federal nor state governments can act to “aid one religion, aid all religions, or prefer one religion over another.” The Everson decision was the first time the Court applied the 1st Amendment's establishment clause to the states through the due process clause of the 14th Amendment.
Justice Black, like Thomas Jefferson, held an absolutist position on the meaning of the establishment clause. Absolutists argue for complete separation of government from religious activity. According to the absolutists, religious activity should be carried out solely in the private sphere of society, free of both government interference and government support.
Since the earliest years of the republic, many Americans have disagreed with the absolutist position on church-state relations. For example, Justice William O. Douglas, writing for the Court in Zorach v. Clauson (1952), argued that the 1st Amendment “does not say that in every and all respect there shall be a separation of church and state.” In Zorach, the Court approved a program whereby public school students could be released during school hours to receive religious instruction, but not within the public school facilities. The Zorach decision was the first in which the Court accommodated a relationship between church and state in a nonpreferential and voluntary program of religious education. However, Zorach was a very small breach in the “wall of separation” supported by the Everson case and later Court rulings.
Since the Everson decision in 1947, the Court has for the most part rejected the nonpreferentialist interpretation of the establishment clause, in which minimal government support of religion is permitted as long as it does not give preference to a particular religious denomination. Other key cases supporting strict separation of church and state are Engel v. Vitale (1962), Abington School District v. Schempp (1963), and Wallace v. Jaffree (1985). With these decisions, the Court has overturned state laws that require or sanction prayer and Bible-reading activities in public schools. These prohibitions apply even when the prayers or religious activities at issue are nondenominational, nonpreferential, and voluntary.
In Lee v. Weisman (1992) the Court prohibited prayers as part of a public school's formal graduation ceremony. A major factor in the case was the direction of the ceremony by school officials. The Court stressed that under the establishment clause, public authorities are forbidden to sanction even nondenominational or supposedly voluntary prayers. Finally, in this case, as in others of its type, the Court emphasized the importance of protecting the rights of individuals in the minority against the control or coercion of majority rule and peer pressure. However, students remain free to organize, on their own and without school support, voluntary religious programs associated with graduation from school. In 1993 the Supreme Court let stand, without comment, a decision of the U.S. Court of Appeals for the Fifth Circuit that upheld a Texas public school district's policy of permitting students to lead voluntary prayers at graduation ceremonies.
In Santa Fe Independent School District v. Doe (2000) the Court maintained a long-standing prohibition against prayer at public school events and ruled that student-led prayer at public high school football games was unconstitutional. Chief Justice William Rehnquist dissented, as did Antonin Scalia and Clarence Thomas, and continued in his opposition to the strict separation of government and religion.
In 1985 Rehnquist had expressed strong opposition to the absolutist position developed by the Court since the Everson decision. In his dissent in Wallace v. Jaffree, Rehnquist wrote, “The establishment clause did not require government neutrality between religion and irreligion nor did it prohibit the federal government from providing nondiscriminatory aid to religions.”
Justice Rehnquist and others support a position referred to as nonpreferentialist. The position rejects Jefferson's “wall of separation” viewpoint. Nonpreferentialists assert that government should be able to aid religious activity, as long as the support would be provided equally to all religions. That is, no religious denomination would be favored or preferred over others.
The Lemon Test, developed by the Court in Lemon v. Kurtzman (1971), was an attempt to accommodate some modest relationships between church and state. The test involves three standards for deciding whether federal or state aid to religious schools or programs is constitutional. The Lemon Test says that a statute does not violate the establishment clause if its purpose is secular or nonreligious, if it neither promotes nor restricts religion in its primary effects, and if it does not bring about excessive government entanglement with religion.
During the 1980s the Supreme Court moved slightly in the direction of accommodation between church and state. In Marsh v. Chambers (1983), the Court held that the Nebraska legislature could begin its sessions with prayers led by a paid chaplain. In Lynch v. Donnelly (1984) the Court upheld the placing of a crêche, a Christian nativity scene, at public expense on public property in front of a city hall at Christmastime. The display, the Court held, was permissible because it was within the context of a larger exhibit that emphasized secular or nonreligious objects, such as a Santa Claus, reindeers, and talking wishing wells. However, in Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter (1989), the Court ruled that an exclusively religious exhibit, a Jewish menorah and a creche, could not be displayed in a government building because this kind of religious exhibit violated the establishment clause.
Another move toward accommodation of church and state was made by the Court in Zobrest v. Catalina School District (1993). The Court ruled that a deaf student at a private parochial school (run by the Catholic church) could be assisted by a publicly funded sign-language interpreter. This kind of aid helps the student, not the Church, said the Court. It therefore does not violate the 1st Amendment's establishment clause.
Free exercise clause
The free exercise clause of the 1st Amendment has not provoked as much controversy as the establishment clause. This clause clearly indicates that government must neither interfere with religious practices of individuals nor prescribe their religious beliefs. From the founding era of the United States until today, most Americans have heartily agreed that individuals have the right to freely express their religious beliefs in the private sphere of society.
The Supreme Court has protected the free-exercise rights of religious minorities since the 1940s. In Cantwell v. Connecticut (1940) the free exercise clause was for the first time “incorporated” by the Court under the due process clause of the 14th Amendment and applied to state governments. The outcome was the protection of the right of Jehovah's Witnesses, a minority religion, to peacefully distribute religious information to people in their neighborhoods with the aim of winning converts.
In West Virginia State Board of Education v. Barnette (1943) the Court struck down a state flag-salute law because it forced some students, who were Jehovah's Witnesses, to violate their religious beliefs. Writing for the Court, Justice Robert Jackson emphasized that the individual's right to free exercise of religion was placed by the 1st Amendment “beyond the reach of majorities and officials.” He emphasized that it was the Court's responsibility to protect this constitutional right of individuals against the power of majority rule, whenever the majority, acting through representatives in government, might try to deny that right to unpopular minority groups.
Like freedom of speech, the individual's free exercise of religion is not absolute. The Court has ruled that in some instances religious expression may be limited on behalf of the public good.
In Reynolds v. United States (1879), for example, the Supreme Court upheld a federal law against the practice of polygamy—having multiple spouses—in federal territories. The Court ruled that the antipolygamy law did not violate the right to free exercise of religion of a member of the Church of Jesus Christ of Latter-Day Saints (Mormons), who claimed it was his religious obligation to have more than one wife. Writing for the Court, Chief Justice Morrison Waite argued that the federal law prohibiting polygamy, even when practiced for religious reasons, was necessary for the good of the community. He wrote, “Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government [could] not interfere to prevent a sacrifice?”
In order to restrict an individual's free exercise of religion, the government must demonstrate a compelling public interest. In Sherbert v. Verner (1963), the Court ruled that a state could not refuse unemployment benefits to a worker who would not make herself available for employment on Saturday because this was her special day of worship (she was a Seventh-Day Adventist). An entitlement such as state unemployment benefits cannot be denied to someone because of her religious practices.
By contrast, in Employment Division, Department of Human Resources of Oregon v. Smith (1990), the Court ruled against state employees who were denied unemployment benefits after being dismissed from their jobs for religion-related reasons. The employees, who were Native Americans, practiced a religion with rituals involving the smoking of peyote, an illegal substance under state law. Because they were dismissed for violating a state law, the Court upheld the denial of unemployment compensation. Writing for the Court, Justice Antonin Scalia argued that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability.”
In 1993, however, the Court struck down a city ordinance that banned ritual animal sacrifice by a religious group. The Court held in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) that the ordinance violated the 1st Amendment's free exercise clause because it suppressed, without a compelling argument on behalf of the public good, a religious ceremony fundamental to members of a church.
Deciding when the free exercise of religion needs protection, however, is not always a straightforward task. When the city of Boerne, Texas, refused a Roman Catholic church's request to build a larger sanctuary, the Supreme Court ruled for the city. In City of Boerne, Texas v. Flores (1997), speaking for the majority, Justice Anthony Kennedy struck down the Religious Freedom Restoration Act, a federal law passed in 1993 that limited the power of federal, state, and local governments to enforce laws that “substantially burden” the free exercise of religion. Kennedy emphasized that the power to determine violations of the Constitution is reserved for government's judicial branch.
Continuing controversies
The fiercest arguments today about religion-related constitutional rights pertain to the establishment clause, not the free exercise clause. The absolutists and the nonprefer-entialists strongly disagree about such issues as state-sponsored prayer in schools and neutral or nonpreferential support for religious practices in public places or with public funds. Public opinion polls have revealed more than 70 percent of Americans to be against the absolutist, or strict separation, position.
Recent Court decisions indicate a movement toward more accommodation and less separation of religion from the state. In Capitol Square Review and Advisory Board v. Pinette (1995), the Court ruled that a private group may put religious symbols on government property if there is no appearance of government support for the religious message. And the Court decided in 1995 that a state university cannot discriminate against a student religious publication by denying it financial support on equal terms with other student publications (Rosenberg v. Rector and Visitors of University of Virginia).
The Supreme Court's movement toward accommodation between government and religion continued in Agostini v. Felton (1997). This decision, which overturned Aguilar v. Felton (1985), held that government funds can be used to provide remedial education for disadvantaged students in private religious schools. As long as the public funds aid students directly and do not promote religion or excessively entangle government with a religious institution, then the government-funded program is constitutional.
In Mitchell v. Helms (2000) the Court upheld a federal program that provided computer equipment and software and other media materials to religiously affiliated schools. In a plurality opinion, Justice Clarence Thomas, joined by Rehnquist, Scalia, and Kennedy, held that federal programs in agreement with “the principles of neutrality and private choice” are not in violation of the 1st Amendment's establishment clause. Justices Sandra Day O'Connor and Stephen Breyer concurred that the federal program at issue was constitutional, but they did not agree with Thomas's “neutrality principle.” The Supreme Court clearly has moved strikingly toward an accommodationist position in church-state relationships. How far this accommodation may go, however, is the subject of a lively debate.
See also Abington School District v. Schempp; City of Boerne, Texas v. Flores; Engel v. Vitale; Establishment clause; Everson v. Board of Education of Ewing Township; Free exercise clause; Lemon Test; Lemon v. Kurtzman; Wallace v. Jaffree; West Virginia State Board of Education v. Barnette; Zorach v. Clauson
Sources
- Robert S. Alley, ed., The Constitution & Religion: Leading Supreme Court Cases on Church and State (Amherst, N.Y.: Prometheus, 1999).
- Robert S. Alley, ed., James Madison on Religious Liberty (Buffalo, N.Y.: Prometheus Books, 1985).
- Robert S. Alley, ed., The Supreme Court on Church and State (New York: Oxford University Press, 1988).
- Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986).
- Edwin S. Gaustad, Church and State in America (New York: Oxford University Press, 1999).
- Leonard W. Levy, The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986).
- William Lee Miller, The First Liberty: Religion and the American Republic (New York: Paragon House, 1985).
- Melvin I. Urofsky, “The Religion Clauses”, in By and for the People: Constitutional Rights in American History, edited by Kermit L. Hall (Arlington Heights, III.: Harlan Davidson, 1991)
