Freedom of Religion

What does the Constitution say about religious freedoms?

Freedom of religion is featured center-stage in the First Amendment to the Constitution, which begins with the words, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”. These two provisions are typically called the Establishment Clause and the Free Exercise Clause.

The Establishment Clause states that the United States government must not establish a religion. The Framers of the Constitution did not want an official state religion in the United States, like England’s official Church of England. Today, the establishment of an official state religion is not regularly suggested. But other more subtle concerns about state-sponsored religion come regularly before the Supreme Court. The Court must decide what is included in the definition of “establishment of religion.”

The Free Exercise Clause states that the United States government must not restrict citizens’ practice of religion. This clause protects religious Americans and those who do not practice religion by keeping the United States government from making laws that favor or burden a particular religion.

Though these rules seem straightforward, other questions remain: should the government give public dollars to religious organizations? Should religious expression be allowed in publicly-owned places, like schools or city halls? Should people be allowed to sidestep government regulations for religious reasons?

What exceptions exist to this freedom?

The Supreme Court has held that the Establishment Clause does not mean that church and state can never interact. While federal dollars cannot go to religious organizations to support inherently religious operations, for example, the decision in Carson v Makin (2022) says that federal funds can still be allocated to religious organizations to carry out public goals, such as providing education.

The Supreme Court has also held that the free exercise of religion is not absolute. In 1878, the Supreme Court ruled that even though a man claimed that his practice of polygamy was allowed by his religion, this practice was illegal. This ruling established the legal concept that the government could not restrict beliefs – the claimant could still believe polygamy was acceptable – but could restrict some expression of those beliefs if they violated basic moral standards.

How does the Supreme Court evaluate questions of establishment and free exercise?  

To interpret the Establishment Clause, judges have traditionally applied the Lemon Test, named for the case Lemon v Kurtzman (1971), in which it was established, to determine whether a law violates the Establishment Clause. Under the test, if a law has no secular purpose, creates entanglement with religion, or is designed primarily to advance or inhibit religion, it is considered unconstitutional under the Establishment Clause.  

Historically, when deciding cases related to the free exercise of religion, the Supreme Court sometimes applied the Proportionality Test. This test asks two questions: First, does this law interfere with a person’s right? If so, the court asks: is this interference justified to accomplish the goal of the law? To determine if the law is justified, the Court considers whether or not the law has a good purpose, whether or not the right is restricted no more than necessary, and how proportional the importance of the law and the restriction of the right are.

In their 2015 Holt v. Hobbs decision, for example, the Supreme Court ruled that the government, in this case, the Arkansas Department of Corrections, did not have a compelling enough reason to limit an inmate’s growing of a beard as a form of religious expression.

This standard for judging free-exercise cases was refined in 1990 with the Supreme Court’s Employment Division v. Smith ruling. This ruling changed the court’s test of free exercise from the proportionality test to a test of how important it is to uphold the government regulation (called the ‘government interest’). If a law generally applies to all religious beliefs and expressions and has been administered and enforced neutrally, it does not violate religious freedom of expression under this test. If not, the Supreme Court must apply “strict scrutiny” to that law to determine if it is necessary.

Corporations are also granted free exercise of religion. This right was established in the Supreme Court’s 2014 ruling in Burwell vs. Hobby Lobby, Inc., which concluded that private companies are protected in their free exercise if they implement a policy based on their religious values.

Are the standards for free exercise and establishment cases evolving?

In recent Supreme Court cases, a new set of standards for deciding religious freedoms cases is beginning to emerge. In questions relating to religious expression and government establishment of religion, the Supreme Court has recently decided in favor of protecting existing religious expression, like allowing a cross to stand on government property in American Legion v. The American Humanist Association in 2019, and in stating that a high school football coach’s prayer with players after football games was considered freedom of expression, rather than a violation of the separation between church and state, in Kennedy vs. Bremerton High School in 2022.

In Espinoza v. Montana Department of Revenue (2020), the Supreme Court found that a Montana law that excluded religiously affiliated schools from a state scholarship program violated the Free Exercise Clause. This case helped to define the free exercise clause as understood by the Supreme Court in which “when otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny.”

The evolution in the standards used to decide freedom of religion cases highlights two important principles. One is that religious freedom, like all civil liberties, is a complex matter. While private worship may not be controversial, issues arise when believers wish to express their views publicly, such as in the case of the high school coach. A separate set of issues arise when determining the relationship between the government and churches. It is one thing to say that the government cannot regulate religious beliefs, but another to say that it cannot provide the same assistance to churches that it provides to other organizations, such as if a church establishes programs to help the poor. It is difficult to come to the conclusion that there is one right answer to any of these questions, which is why the courts adjudicate them, why standards can change over time, and why we will see more such cases in the future.