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2.5: Protection of Religious Freedoms v. Separation of Church and State

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    Figure 2.5.1: The first amendment to the U.S. Constitution that prohibits any law limiting freedom with respect to religion, expression, peaceful assembly, or the right of citizens to petition the government.

    The freedom to say what’s on your mind. To worship as you wish. To pray without interference from the government. To peacefully protest. These rights are actively protected by the First Amendment and are just as vitally important today as they were when the Bill of Rights was ratified in 1791. In order for these First Amendment liberties to remain in effect requires actively engaged citizens who are willing to take a courageous stand to defend them.

    The First Amendment has become the global standard of the right of “a single majority of one” to openly and freely express views that differ from those in the majority of society in the areas of speech, religion and expression. As a federal judge recognized, history has shown us that “pleasing speech is not the kind that needs protection.” According to the U.S. Supreme Court, the First Amendment has become the fortress for protecting the “uninhibited, robust, and wide-open” discussion of controversial and often unpopular issues in public places.” [William J. Brennan, Jr., Associate Justice of the Supreme Court of the United States (New York Times Co. v. Sullivan, 1964)].

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    First Amendment to the United States Constitution


    Since the inception of our new nation, the Founders stood firm in the belief that an open and free exchange of ideas was essential for the success of a representative democracy. Benjamin Franklin famously said, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.” In order to ensure the open and free exchange of ideas, the Founding Fathers placed the freedoms of religion, speech, press, assembly, and petition at the forefront of protected liberties as the First Amendment of the United States Bill of Rights. In recognizing the wisdom of the Founding Fathers, U.S. Supreme Court Justice Hugo Black said, “The Framers knew that free speech is the friend of change and revolution. But they also knew that it is always the deadliest enemy of tyranny.”

    Figure 2.5.2: Religious freedom has always been a priority to Americans.

    The First Amendment Today

    The First Amendment also includes specific protections dealing with the liberty to freely exercise and practice the religion of one’s choice while also protecting the individual from government establishment of forced religious beliefs or practices against the individual’s will. In other words, we are free to expressly follow whatever religious beliefs we want while the government cannot dictate how we should act or what we should believe when it comes to religion.

    There are contemporary examples of cases where the First Amendment would appear to be under attack. These issues include such questions as:

    • To what extent does the First Amendment allow for freedom of speech and expression in schools?
    • Which is more important – the right to freely exercise and express one’s religious beliefs or the requirement that the government actively separate issues of church and state?
    • Does the government have the right to limit or forbid the expression of unpopular views in a public forum?
    • Can members of the press be threatened with jail time for reporting on important government programs?
    Source:  Amendment I: Freedom of Religion, Speech, Press, and Assembly,  Rutherford Institute, accessed 1/28/2015 

    The First Amendment to the United States Constitution declares that:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

    This brief sentence has produced more than its share of controversy in America's political history. While religious liberty has always been cherished in America, it has not always been easy to balance the religious liberties of individuals against the needs of society. How much should religious liberty be limited in the name of societal order? How involved, if at all, should the government be in religion? Some of the answers that various people have offered to these questions at various times in America's political history might surprise you.

    Religious Freedom

    It is no mistake that a guarantee of religious freedom and a prohibition of govern\ment established religions appears in the first half of the First Amendment to the Constitution. The people were not about to take for granted rights they had only recently come to enjoy. The place of religion in the colonies, and then in the states, however, has evolved significantly over time. Several states had established religions early in America's history. In fact, the Congregational Church was the official church of the state of Massachusetts until 1833.

    As the notion of religious freedom has evolved, however, the government's role in religion has become increasingly cautious. Not only are there no official, government-sanctioned religions in the United States, but also there is a widely held belief that there ought to be a "wall of separation" between religion and government. Furthermore, in the balance between liberty and order, it is widely believed that each individual should be allowed to engage in religious practices that do not directly harm other individuals.

    While these notions of government non-involvement in religion and religious liberty are fairly straightforward in most cases, there have been numerous instances in which the proper role of government has been unclear or where it has been unclear just how harmful an individual or group's religious practices are. In these cases, the people of the nation, usually led by the Supreme Court, had to strike a workable balance between liberty and order. Those who have been on the losing side of these battles, however, have not given up trying to shift the balance in their preferred direction. Indeed, much of the story of the First Amendment is the continuing struggle to find a balance that everyone can live with.

    The Establishment Clause

    The First Amendment actually contains two distinct and sometimes conflicting clauses about religion. The first of these, the Establishment Clause, declares that the Congress "shall make no law respecting an establishment of religion." While there have been many different interpretations of the Establishment Clause, one of the most common is that there should be a "separation" between church and state, i.e. between religion and government."

    Another interpretation, which is not incompatible with the first, is that government should be neutral with regard to religion. In the competition of religious ideas, the government should remain neutral, neither favoring nor disfavoring any religion or even irreligion. But what does this mean in practice? What is it permissible for the government to do? What kinds of things should it refrain from doing?

    Many Americans mistakenly believe that the phrase "separation of church and state," or some variation of this statement appears in the Constitution. In fact, the only reference to the relationship between government and religious institutions in the Constitution is in the First Amendment. So where does the term come from? It originates from a letter written by Thomas Jefferson to the Danbury Baptists in 1802. In the letter, Jefferson wrote:

    Believing that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their Legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church and State.

    Elsewhere, Jefferson clarified his position on the role of religion in civil society and the relationship that should exist between government and religions:

    No man [should] be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor [should he] be enforced, restrained, molested, or burdened in his body or goods, nor... otherwise suffer on account of his religious opinions or belief... All men [should] be free to profess and by argument to maintain their opinions in matters of religion, and... the same [should] in no wise diminish, enlarge, or affect their civil capacities... The proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right.2

    The view of non-establishment Jefferson seems to convey appears to be a one-way wall. It is not a wall intended to prevent religious influence on government, but rather one which forbids official government involvement in or endorsement of religion. Religious people should not be discouraged from bringing their convictions with them to the political arena, but any governmental effort to force others to adopt a particular set of religious beliefs or engage in particular religious practices would clearly be a breach of the "wall" Jefferson spoke of.

    The Supreme Court and Establishment

    As the case with each item included in the Bill of Rights, the Supreme Court played a central role in clarifying, at least for legal purposes, the meaning of the First Amendment. In several of its decisions, the Court has outlined a definition of "establishment" that prohibits the governmental promotion of religion or irreligion. In legal terms, the Court has maintained that the government in its approach to religion. That does not mean that the government can do nothing at all to benefit religion or religious institutions. In the granting of tax-exempt status to churches, for example, the government must simply treat all religions equally.

    Government Funding for Private Religious Schools

    In a landmark case, Lemon v. Kurtzman, the Supreme Court announced a three-part test it would use to determine whether the government's actions in a particular case violated the Establishment Clause. At issue in the case were the laws of two states, Rhode Island and Pennsylvania, that provided financial support for nonpublic, religious elementary and secondary schools. In each case, state support for teachers' salaries, textbooks, and materials were justified because funding was provided only for the teaching of secular subjects taught in public schools. The laws of both states were challenged on the grounds that they "established" religion in violation of the First Amendment.

    Hearing appeals of both cases in tandem, the Supreme Court declared that it is not the quality of the education provided by private schools or their efficiency that matters, but whether state aid to religious schools can be "squared with the dictate of the Religion Clauses." Ultimately, the Court determined that it could not:

    Under our system, the choice has been made that government is to be entirely excluded from the area of religious instruction and church excluded from the affairs of government. The Constitution decrees that religion must be a private matter for the individual, the family, and the institutions of private choice, and that while some involvement and entanglement are inevitable, lines must be drawn.

    So, where are the lines to be drawn? In its decision, the Court offered a three-part test, now referred to as the "Lemon Test," to determine when government involvement in religion becomes "establishment" or "promotion." For a national or state law to meet the requirements of the Lemon Test, it must first have a clear "secular legislative purpose." In other words, its goals must be nonreligious in nature. Second, its "primary effect must be one that neither advances nor inhibits religion." Finally, any "excessive government entanglement with religion" must be avoided. The difficulty of meeting the standards set forth by the Lemon Test is that if a law fails to meet any one of its requirements, it is, according to the Court, unconstitutional.

    On the matter of the Pennsylvania and Rhode Island laws providing financial support to religious schools and their teachers, the Supreme Court ruled that they did not adhere to the three standards of determining non-establishment. How did they fail to satisfy the test? While the Court found that both laws had clear secular purposes, i.e. improving the nonreligious elementary and secondary education of the children in each state, and that they did not obviously advance or inhibit religion (precautions were taken in both states to assure that state funding was used only for secular teaching), the Court concluded that the "cumulative impact" of the laws and the funding they provided produced too much "entanglement" between government and religious schools.


    Acceptable Forms of Federal Aid

    Unacceptable Forms of Federal Aid

    • Free Bus Transportation (if provided for both public and private school students)
    • Nondenominational Textbooks
    • Aid for Buildings at Colleges & Universities
    • Supplementing teacher salaries
    • Tuition payments or rebates for elementary or secondary schools
    • Money for equipment or supplies

    While the Lemon Test is still the primary legal basis for deciding establishment cases, the Supreme Court, in a 1997 ruling, partially reversed its decision in Lemon v. Kurtzman, relaxing the legal standards for allowing public funds to be used for private religious schools. The decision seems to be consistent with the current Court's more practical approach to the law.

    In Agostini v. Felton, the Supreme Court ruled that federal aid for elementary education could be used to pay public school teachers to enter private religious schools to teach secular subjects. Title I of the Elementary and Secondary Education Act provides federal funding to improve the teaching of children from low-income families. However, under previous Court rulings, children attending religious schools had to leave their school buildings to receive the remedial help funded by Title I. This often meant that portable buildings had to be provided solely for the purpose of Title I funded teaching. The state of New York was spending almost $12 million a year to comply with the Court's rules requiring no “entanglement” between religion and government as it tried to provide remedial teaching to students at religious schools.

    What's the Difference?

    While the Supreme Court has ruled that public funding cannot be used to pay for student tuition to attend religious schools, similar restrictions do not apply for students attending accredited colleges and universities. Students who qualify for Pell Grants or federally subsidized student loans are free to use their financial aid at the school of their choice, be it public or private, secular or religious. There are growing demands for states to implement "voucher" systems that would allow parents to use the money that would have been spent on their child at a public school for tuition at a school of their choice. Why might the Court hold such a system unconstitutional while allowing financial aid to be used by college students? The Court's distinction seems to be based on the notion that older students are more capable of accepting or rejecting religious teachings than are younger students who are more susceptible to indoctrination. Proponents of vouchers generally reject this line of reasoning and have been emboldened by the Court's recent rulings allowing the use of public funds in private schools.

    Prayer in School

    Another major focus of establishment cases before the Supreme Court has been prayer in school. Opponents of allowing prayer in public schools contend that when a public facility (a school) is used for religious observance (a prayer) during the course of official business (beginning the school day or a class), the authority and resources of government are being used to establish a religion. While it is easy to see why many people believe this line of reasoning is an overly-strict interpretation of the Establishment Clause, the Court has taken painstaking efforts to balance liberty and order in the case of prayer in school.

    When a prayer is offered to begin the school day, for example, the students in the class who do not subscribe to the particular religious beliefs expressed in the prayer may be uncomfortable. Discomfort, however, is not enough to make an action unconstitutional. The Court has maintained that when a public school class or student body is led in prayer by a teacher, administrator, or even by another student, nonbelieving students might not only feel uncomfortable, but also they may feel compelled or even coerced to participate. By leaving the room or in some other way refusing to participate, a student may bring upon him or herself the scorn and ridicule of the other students present. To avoid being ostracized, a student may simply go along with the prayer or other religious observance. If a student chooses to do so, the Court has argued, government authority and resources, in the form of a public school, have been used to establish religion, or at least to compel an individual to participate in its observances.

    In the most famous of its prayer cases, Engel v. Vitale, the Supreme Court ruled that requiring students to participate in the recitation of a prayer written by the Board of Regents of the State of New York was unconstitutional. Although the prayer was nondenominational and did not, therefore, promote any specific religion or religious sect, the Court stated its belief that:

    . . . the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.

    In later cases, the Court extended its ruling to forbid the reading of Bible passages to begin the school day and the recitation of the Lord's Prayer. While the Court's decisions in these cases were probably on firm Constitutional ground, it is questionable whether the Court should have rendered the decisions at all. In the first instance, the decisions have been widely perceived as anti-religious, something the Court probably did not intend. Second, the decisions are nearly impossible to enforce. Even more seriously, by drawing a legal line establishing what is acceptable and what is not, the Court left in question the permissibility of hundreds of common practices. What of the prayers offered at the beginning of each legislative day in the Congress? References to Deity in the Declaration of Independence, on our money, in the Pledge of Allegiance and in courts of law? Do these practices violate the Establishment Clause?

    Even as it issued its decision in the Engel case, the Court seemed to sense that it was treading into murky waters. In a footnote in the Engel decision, Justice Black observed:

    There is of course nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

    Indeed, it is precisely because of the competing interests at stake in school prayer and other establishment cases that there are no easy answers. Americans are an overwhelmingly religious people who value the position of religion in society. 88% say they "never doubt" the existence of God and 78% report that prayer is "an important part of . . . daily life."6 Another 54% believe that churches should be politically involved7 and only 41% believe that the separation of church and state has been a source of America's strength in the past century.8 Even more strikingly, only 12% of Americans believe that "by law, prayer should not be allowed in public schools." However, perhaps indicating a reluctance to impose their religious beliefs on others, a clear majority favor silent prayer, as opposed to vocal ones, in schools.

    Establishment, Liberty, and Order

    As the Supreme Court has rendered its decisions in disputes over public funding for religious schools, prayer in school and other cases, it has tried to strike an appropriate balance between protecting the liberties of individuals while promoting and maintaining societal order. These cases illustrate the difficulties of doing so. In the case of public funding to religious schools, taxpayers may feel that their liberties (in the form of their tax dollars) are being abused. On the other hand, providing public support for underprivileged students attending religious schools serves a broader public good. In the end, the balance the Court strikes will be a reflection of its members' values and those of society. Given the nature of the very freedoms the Court attempts to define and protect, it is impossible to make decisions with which everyone will be happy.

    The Free Exercise Clause

    The second "Religion Clause" in the First Amendment of the Constitution states that the "Congress shall make no law . . . prohibiting the free exercise [of religion]." While this statement is, on the surface, simple and straightforward, it has also been the subject of several Supreme Court cases. Comparatively speaking, however, there have been fewer "free exercise" cases than there have been "establishment" cases, largely because the vast majority of free speech and assembly cases also apply to religious exercise.

    There have been a handful of significant religious exercise cases that have come before the Court. In most of these cases, the Court grappled with the definition of "exercise." What kinds of activities are protected by the First Amendment? Which kinds of activities go too far and, because they harm other individuals or society, ought to be limited?

    In deciding free exercises cases, much the same way it decides speech and expression cases, the Supreme Court tends to weigh the balances heavily in favor of the individual. First Amendment rights are generally considered so important to the individual that the government must demonstrate a "compelling state interest" before it can constitutionally limit them. In other words, there must be an overwhelming public interest that is threatened by an individual's religious practice in order for the individual's religious liberty to be deemed less important than the preservation of societal order. Some specific cases shed light on how the Court has addressed free exercise questions.

    In the 1940s Jehovah's Witnesses living in the state of Virginia, the Barnette family sued the West Virginia Board of Education. At issue was a requirement that all children stand and repeat the Pledge of Allegiance at the beginning of each school day. Because saluting the flag was contrary to their religious beliefs, they argued that their children were being deprived of their right to freely exercise their religious beliefs. In West Virginia v. Barnette, the Court agreed, clearly giving priority to the individual's freedom of religion. Writing for the majority, Justice Jackson declared:

    If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

    We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

    The Court would rely on the wording and principles of the Barnette decision in another free exercise case nearly thirty years later. In Wisconsin v. Yoder, the Court found that the state's requirement that children stay in school until the age of sixteen violated the religious liberties of an Amish family that wanted to school their children at home after the Eighth Grade. Elsewhere, the Court has ordered that unemployment benefits be paid to a Seventh-Day Adventist who would not accept a job working on Saturdays (Sherbert v. Verner). The Court has repeatedly rejected any kind of religious tests for public office holders, even rejecting laws which bar ordained ministers from holding office.

    While the Court has generally ruled in favor of the individual in free exercise cases, there are some notable exceptions. For example, an Amish shopkeeper was required to pay his portion of his employees' Social Security taxes, even though his religious beliefs forbid him from either paying Social Security taxes or receiving Social Security benefits (United States v. Lee). In another case, members of the Church of Jesus Christ of Latter-day Saints were ordered to cease the practice of polygamy. In that case, Reynolds v. United States, the Court argued that:

    The only defense of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion: it was still belief, and belief only. . . . [W]hen the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.

    In the case of polygamy, the Court found that society's interests in maintaining order through the prohibition of "undesirable" activities outweighed the religious liberties of the individuals in question.

    More recently, the Supreme Court issued what has become one of its most controversial free exercise decisions. In Employment Division v. Smith, the Court reviewed the case of two employees who had been fired by their employer for using "illegal nonprescription drugs." The "drug" used, however, was peyote, a hallucinogen used for sacramental purposes in the observations of the Native American Church. Because the two employees were fired for violating their employer's terms of employment, the Employment Division of Oregon refused to award unemployment benefits to the two men. They filed suit claiming that their free exercise rights were being infringed.

    While the Court's ruling in the particular case was largely inconsequential (the Court actually sent the case back to the lower court that had originally heard it for further consideration), the reasoning it used was troubling to defenders of religious freedom. In the case, the Court, in the words of the Congress, "virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion." In an effort to require the courts to reinstate the "compelling interest test" and to "to provide a claim or defense to persons whose religious exercise is substantially burdened by government," the Congress passed the Religious Freedom Restoration Act of 1993 (RFRA), setting up a showdown between the legislative and judicial branches on the interpretation of the Free Exercise Clause.

    In the first suit brought under the RFRA, the Court struck down the Act in regards to its application to the states and chastised the Congress for attempting to take on the Court's role as interpreter of the Constitution. In response to what they perceive to be the Court's arrogance and continual drift away from protecting religious liberty, many states have drafted their own forms of the RFRA and several members of Congress have proposed a Religious Freedom Amendment to the Constitution. Their stated purpose is to "correct 36 years of Supreme Court decisions which have warped the original plain and simple meaning of our religious rights under the First Amendment to the Constitution.” For the time being, the Court has won the battle over defining the First Amendment. However, in the American system, no decision is ever final. The meaning and interpretation of the Free Exercise Clause will continue to evolve as the values and perspectives of this nation's people and leaders change.

    In a recent case involving religious freedom, Burwell v. Hobby Lobby Stores, the Supreme Court was asked to consider whether or not a for-profit company could be forced to provide family planning and contraception services as a part of its health insurance, as required by the Affordable Care Act (Obama Care). The Court defined the question as:

    Does the Religious Freedom Restoration Act of 1993 allow a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners?

    The Supreme Court answered this question as “Yes!” The Court held that Congress intended for the RFRA to be read as applying to corporations since they are composed of individuals who use them to achieve desired ends. Because the contraception requirement forces religious corporations to fund what they consider abortion, which goes against their stated religious principles, or face significant fines, it creates a substantial burden that is not the least restrictive method of satisfying the government’s interests. In fact, a less restrictive method exists in the form of the Department of Health and Human Services’ exemption for non-profit religious organizations, which the Court held can and should be applied to for-profit corporations such as Hobby Lobby. Additionally, the Court held that this ruling only applies to the contraceptive mandate in question rather than to all possible objections to the Affordable Care Act on religious grounds.

    Figure 2.5.3

    Study/Discussion Questions

    1. Why do you think the founding fathers called for the protection against an establishment of religion as well as the assurance of a "free exercise" of religion? Why does the presence of these two clauses often lead to controversy and disagreement today? Give an example.

    2. What does "separation of church and state" mean to you? Do you think it is more important for governments to protect the free exercise of religion or to protect citizens from the establishment of government-sponsored religion? Explain and defend your answer.

    3. How does the case of Lemon v. Kurtzman impact the areas of public education and government-sponsored events in today's society? Give an example and defend your answer.

    4. Do you believe government-sponsored vouchers that could be taken to ANY private school are a good public education policy? Why would many argue that this is a violation of the First Amendment? Why would others argue that not providing such vouchers is a violation of their First Amendment rights? Which of the two sides has the more valid argument (in your opinion)? Explain and defend your answer.

    5. Why was the Engel v. Vitale case so controversial (especially in today's political environment)? Give an example and defend your answer.

    6. A young student refuses to salute the American Flag or to recite the Pledge of Allegiance. Under what case is he/she protected on religious grounds? Is this a matter of free exercise or religious establishment? Explain and defend your answer.

    7. Do you agree or disagree with the court's decision in the Burwell v. Hobby Lobby case? How is this decision different from other First Amendment decisions that have been passed down by the courts since the 1950s? Defend your answer.

    The Constitution also prohibits any religious requirements for national office holders, 
    but this does not directly refer to the relationship between the government and religions at the institutional level.
    Thomas Jefferson, "Statute for Religious Freedom, 1779" Papers, 1:546.
    Source: Rex Lee, A Lawyer Looks at the Constitution (Provo: BYU, 1981), 134.
    Daniel Wise, "Parochial School Teaching May Be Paid by Federal Funds," The New York Law Journal, 24 June 1997.
    Lee, 130-4.
    Pew Research Center for the People and the Press, MAY 1996 RELIGION AND POLITICS SURVEY.
    Pew Center. PEW VALUES UPDATE: AMERICAN SOCIAL BELIEFS 1997 - 1987 Part 1 , 
    Pew Center. Millennium Survey. 
    In these cases, there was an apparent state interest in preventing too much religious influence on government. 
    However, the Court ruled that it was not a violation of the Establishment Clause for religious individuals to 
    serve as elected officials. This is consistent with "one-way" interpretation of Jefferson's "wall" between church and state.
    Source: under Creative Commons CC BY-NC-SA 3.0

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