Fair Play for Faith: the First Amendment’s Religion Clauses in a Diverse America
Discover how the First Amendment ensures equal treatment and freedom for all beliefs.
Imagine you live in a neighborhood where most people like to play football, but you’re more interested in basketball. The local community center decides that because football is more popular, they will only allow football to be played on their fields and will fund football teams and events. If you wanted to play basketball or organize a basketball tournament, you wouldn’t have the support or space to do so. This situation seems unfair, right? You’d probably wish for a rule that said the community center had to treat all sports equally, allowing everyone to play the sport they love without favoritism.
The Religion Clauses of the First Amendment serve a similar purpose, but in the field of religion. They ensure that the government treats all religions equally and allows individuals the freedom to practice their religion (or no religion at all) without government interference. Here’s how these two clauses work.
Understanding the Establishment Clause
The Establishment Clause says that the government cannot establish an official religion or favor one religion over another. To use our example, just as the community center can’t support only football and ignore other sports, the government can’t support one religion with money or laws that give it special treatment over others.
Establishment of Religion. Amendment I.
“Congress shall make no law respecting an establishment of religion…”
Strict Scrutiny and the Lemon Test
Laws that discriminate against specific religious groups are viewed with suspicion and must pass a “strict scrutiny” test. This means they need to be narrowly tailored to achieve a compelling governmental interest. However, when a law is neutral toward religion but is challenged on the grounds of violating the Establishment Clause, courts historically could apply the “Lemon test,” originating from the Supreme Court’s decision in Lemon v. Kurtzman (1971).
The Three Prongs of the Lemon Test
- Secular Legislative Purpose. The law must have a purpose that is not religious. For instance, requiring public buildings to display the Ten Commandments was struck down because it served a religious purpose (McCreary County v. ACLU of Kentucky (2005)). Conversely, laws mandating Sunday closures for businesses were upheld since they provided a secular benefit: a day of rest for everyone (McGowan v. Maryland, 366 U.S. 420 (1961)).
- Principal or Primary Effect. The effect of the law must neither advance nor inhibit religion. This aspect has evolved to consider whether a government action symbolically endorses religion. A law that grants employees a day off for their Sabbath was ruled unconstitutional because it favored religious observance over non-religious practices (Estate of Thornton v. Caldor, 472 U.S. 703 (1985)). However, exemptions provided to religious groups from certain laws, like antidiscrimination statutes, have been deemed permissible if they don’t directly benefit religion over non-religion (Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)).
- No Excessive Government Entanglement. The law should not lead to an intricate involvement of the government with religion. This is to avoid situations where the government must constantly monitor what is a religious activity versus a secular one. Paying secular teachers in religious schools, for example, was seen as problematic due to the monitoring it would require, blurring the lines between church and state (Grand Rapids School District v. Ball, 473 U.S. 373 (1985)).
The 2019 Shift
The Supreme Court case The American Legion v. American Humanist Association (2019) marked a critucal moment for the Lemon test. The case involved a large cross erected as a World War I memorial on public land in Maryland, which was challenged as a violation of the Establishment Clause. The Supreme Court’s decision in this case didn’t explicitly overturn the Lemon test, but it indicated a shift away from its strict application. The Court ruled that the cross could remain, emphasizing historical context and tradition over the Lemon test’s strict scrutiny of secular purpose and entanglement. This decision suggested a more lenient approach to religious symbols in the public square, especially when they have historical significance.
Elimination of the Lemon Test
In the Supreme Court’s case (Kennedy v. Bremerton School District (2022)) involving Joseph Kennedy, a high school football coach who prayed publicly on the field, marked a major change in how the Court looks at cases related to religion and government. The Supreme Court decided not to follow old rules of the Lemon test. Instead, they focused on the history and tradition of religious practices in the U.S. to make their decision. They pointed out that the earlier courts, which punished Kennedy based on the Lemon test, didn’t catch up with the Supreme Court’s newer way of thinking. The Supreme Court’s ruling in favor of Kennedy showed a clear move away from using the Lemon test to a method that values historical practices and understandings when interpreting the Constitution’s rules about religion and government.
Outcome of the Elimination of the Lemon Test
The Supreme Court’s current approach to the Establishment Clause is more flexible and nuanced, focusing on historical practices, avoiding coercion, ensuring neutrality and equal treatment, minimizing government entanglement, and respecting religious freedom and pluralism. Hopefully, this approach will allow for a broader interpretation of the Establishment Clause that better reflects the complex nature of modern American society.
Understanding the Free Exercise Clause
The Free Exercise Clause guarantees that people have the right to practice their religion freely, as long as they don’t break the laws. Going back to our example, it’s like saying you should be free to organize and play basketball whenever you want, as long as you don’t interfere with others or play in the middle of the night and cause a disturbance.
Free Exercise of Religion. Amendment I
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
The Free Exercise Clause is broken down into two big ideas:
- You can believe whatever you want when it comes to religion-that’s sacrosanct.
- But when you act on those beliefs, things get a little more complicated. If your religious actions conflict with a general law, sometimes you have to follow the law, even if it conflicts with your religious practices.
Back in 1940, a case called Cantwell v. Connecticut helped make clear that while your beliefs are your own, acting on those beliefs may not be free from government regulations.
Then came a big moment in 1990 with the Employment Division, Department of Human Resources of Oregon v. Smith decision. It basically said that if there’s a law that everyone has to follow and it doesn’t intentionally target a religion, it’s usually okay, even if it makes it harder to practice your religion.
Reaction of the Congress
This 1990 decision was not at all popular, so Congress stepped in with the Religious Freedom Restoration Act (RFRA) in 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. These laws were like a counter-movement to Smith, trying to protect religious practices from being inadvertently crushed by case law. RFRA focuses on federal laws and says they have to pass a really tough test (“strict scrutiny” — we discussed it in one of our previous articles, see the below) if they’re going to burden someone’s religious practice. RLUIPA targets state and local laws, but in more specific situations, like zoning and people in jail (also the strict scrutiny test is applicable).
An example of RFRA in action is the 2014 case of Burwell vs. Hobby Lobby. Here, the Supreme Court ruled that a company could refuse to cover contraception in health insurance if it violated the owners’ religious beliefs. This was a big deal, because it showed that RFRA could indeed protect religious beliefs from the federal government.
So, in simple terms, the Free Exercise Clause and the laws that followed it are trying to balance two things: (i) letting people practice their religion freely and (ii) making sure that other important laws are followed. It’s like saying, “You can practice your religion, but sometimes we all have to follow the same rules to keep things fair.” And when there’s a conflict, the courts and laws like RFRA and RLUIPA step in to figure out the balance.
Disclaimer
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