The First Amendment reads, in part, “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…” Freedom of religion consists of two different provisions – the establishment clause and the free exercise clause.
Establishment Clause
The establishment clause prohibits the government from making any laws, “respecting the establishment of religion.” This is two-fold. It means that laws that either advantage or promote one religion over another religion are unconstitutional. It also means that laws that promote religion over non-religion will be deemed unconstitutional. Whether the law being challenged is an “endorsement of religion,” turns on historical practices and understandings. This is why certain long standing public monuments endorsed by the government that contain explicit religious content are still protected and standing today. However, those same monuments would not necessarily be constitutional if they were built today. As another example, the government’s endorsement of, “In God We Trust,” on our currency is protected because of historical practices and understandings.
According to a trial lawyer, the purpose of the Establishment Clause is to prevent the coercive endorsement of religion. It works to protect individual choice by preventing government action that could be used to inspire certain religious beliefs. For example, officially sponsored school prayer in public schools is unconstitutional, but voluntary prayer is constitutional. As another example, nativity scenes displayed on public property are constitutional only if there are other symbols or messages that dilute the religious message, such as Rudolph the red nosed reindeer.
Free Exercise Clause
The Free Exercise Clause grants absolute protection to individuals to exercise the religion of their choice, or to not practice religion at all. This clause also governs laws made to regulate religious conduct. Laws regulating religious conduct because of its religious significance are unconstitutional. In other words, if a law was enacted with hostility to religion, it would be deemed unconstitutional. However, if a neutral law of general applicability is enacted that happens to impact a religious belief, it is usually upheld as constitutional.
While the Free Exercise Clause grants individuals the absolute freedom to practice the religion of their choice, it does not guarantee the right of accommodation. Individuals are not entitled to accommodation, meaning the government is not obligated to grant special privileges to religious individuals that others do not receive. The case law on accommodation is unclear, but generally, laws allowing exceptions are struck down as unconstitutional unless there is a compelling reason not to also grant religious exemptions.
An illustration of the free exercise clause in action is the Supreme Court case of Employment Division, Department of Human Resources of Oregon v. Smith. In that case, the Supreme Court upheld a law prohibiting the use of peyote for religious purposes, asserting that there is no right to accommodation when a law is neutral and applies uniformly to everyone. Allowing exceptions to every law affecting religion would potentially exempt individuals from almost any civic obligation.
On the other hand, the Supreme Court struck down a law that infringed on an organization’s religious beliefs in Fulton v. City of Philadelphia. In this case, Philadelphia’s non-discrimination law prevented Catholic Social Services from placing children in foster homes due to its policy of not licensing same-sex couples as foster parents. Catholic Social Services argued that this violated its constitutional right to religious freedom. The court, in a unanimous decision, decided that Philadelphia’s non-discrimination law was unconstitutional, as it was not neutral and did not apply generally to everyone. The law permitted exceptions to the anti-discrimination requirement at the discretion of the Commissioner, necessitating a compelling reason not to extend the same exceptions granted to other groups to religious organizations in practicing their beliefs.
Thanks to Eglet Adams Eglet Ham and Henriod for their insight on Freedom of Religion.
If you feel your first amendment rights have been violated, contact a lawyer near you for help.
