Freedom of Religion: Establishment Clause vs. Free Exercise Clause

What does the Constitution say about religious freedoms?

The First Amendment to the Constitution guarantees freedom of religion, saying, “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 provides for a ‘separation of church and state’. The Framers of the Constitution did not want an official state religion in the United States, as in England's Church of England.

Today, the establishment of an official state religion is rarely proposed. But other concerns about state-sponsored religion come regularly before the Supreme Court. The Court must decide whether particular government acts – like funding religious charter schools or displaying religious symbols on government property – constitute an “establishment of religion.”

The Free Exercise Clause states that the United States government must not restrict citizens’ religious practice. 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.

While few laws are written with the explicit goal of restricting a particular faith, Courts frequently confront questions about whether a law or policy burdens religious practice. For example, can parents opt their children out of public-school lessons that conflict with their religious beliefs, or can a business decline service on religious grounds?

What exceptions, if any, exist to religious 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, 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 Court has also carved out exceptions based on historical tradition, as in the case of legislative prayer, which has been a long and unbroken practice since the Founding. Similarly, long-standing displays of religious symbols have been exempted because age and historical context reduce the appearance of a government endorsement.

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 the law.

Other religious practices that conflict with criminal law, like not paying taxes, have also been restricted. And the Courts have given significant discretion to prison administrators and military commanders to restrict religious practice for safety, order, or discipline reasons.

How have legal interpretations of the freedom of religion evolved over time?  

As these examples demonstrate, although the rules surrounding freedom of religion may seem straightforward, applying them in practice can introduce challenging issues. Since the Founding, the American judicial system has had to continually interpret (and reinterpret) the meaning of the Establishment and Free Exercise Clauses. And the ways in which the Court has applied each clause have gradually evolved.

The ongoing interpretation of religious freedom is reflected in the chart below, which shows the number of Supreme Court cases involving freedom of religion in each decade from 1960 to 2010. In each decade, the Court decided at least five cases on this topic.

How the Court interpreted this right – and whether its decision favored or disfavored the religious party bringing the case – has also changed over time.

In the 1960s and 1970s, the Court began to interpret the Free Exercise Clause as protecting religious minorities whose rights were infringed by laws reflecting mainstream Christian or non-religious values. In their 1963 Sherbert v. Verner decision, for example, the Supreme Court ruled that states could not deny unemployment compensation to individuals who refused to work on Saturdays for religious reasons.

Decisions like this often rested on the Proportionality Test. The Court first asks: does this law interfere with a person’s right? If so, they ask: is this interference justified to accomplish the law's goal? The Court considers whether the importance of the law is proportional to the restrictions placed on religious freedom. If a law placed an “undue burden” on an individual, it was likely to be deemed unconstitutional.

By the 1990s, the Supreme Court’s standard for judging free exercise cases had evolved. In Employment Division v. Smith, the Court shifted from the Proportionality Test to a test of how important it is to uphold the government regulation (called the ‘government interest’). If a law applies to all religious beliefs and is administered and enforced neutrally, it does not violate religious freedom.

This shift led to decisions that more often sided with the Christian majority. In its 2017 Masterpiece Cakeshop v. Colorado Civil Rights Commission decision, for example, the Court ruled that a state commission’s enforcement of anti-discrimination laws violated the religious freedom of a baker who refused, on religious grounds, to sell a wedding cake to a same-sex couple.

In a 2014 decision, Burwell v. Hobby Lobby, the Court applied a similar logic to corporations, ruling that the Affordable Care Act’s contraception mandate violated the rights of its religious owners.

Similar trends have defined the Court’s interpretation of the Establishment Clause. In the 1970s and 1980s, the Court often ruled against the government’s religious entanglements. A landmark case was Lemon v. Kurtzman (1971), which led to the development of the “Lemon Test”. Under this 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.

The Court began to reverse these decisions in the 1990s and 2000s, ultimately announcing that the Lemon Test was “abandoned” in 2022. In its place, the Court has adopted a history-and-tradition test: the Establishment Clause should be “interpreted by reference to historical practices and understandings.” This shift has led to a more case-by-case application of the Establishment Clause, which has been more permissive of government-religion overlap.

The Takeaway

Freedom of religion is a long-established Constitutional right in the U.S. However, what this right means in practice has been contested and has evolved over time.

As with most Constitutional rights, interpreting and applying abstract principles in practice can be quite difficult. This is why the courts continually adjudicate rights-based questions, why standards can change over time, and why we will see more such cases in the future.