Freedom of Religion and the Establishment Clause

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"T he Star-Spangled Banner" says the United States of America is the "land of the free." One of the most cherished freedoms in America is the freedom of religion. It protects our right to worship as we choose or not to worship at all.

Religion has served many purposes for humanity. In prehistoric times it explained natural events and created order out of a chaotic world. Although science does this today, people continue to use religion as a shelter from the horrors of the world. Religion helps communities develop moral values for their children. Some people use places of worship just to socialize with fellow human beings.

During the seventeenth and eighteenth centuries, many people fled Europe to find religious freedom in the American colonies. In Europe most people were forced to follow a religion selected by the government and to pay taxes to support it. In this way, the Church of England had been that country's official religion since the sixteenth century. This restricted people who wanted to follow a different sect of Christianity or another religion. People who tried to follow other religions were punished with imprisonment and sometimes death.

The American colonists, however, did not enjoy true religious freedom. Most of the original colonies established their own official religions. Some colonists fell into the same habits of persecution that they left behind in England. Puritans, for example, who were greatly persecuted in England, were intolerant of other religions in Massachusetts.

After the colonies revolted against England in 1776, became the United States, and established a federal government with the U.S. Constitution in 1789, Congress drafted the Bill of Rights. Although the Constitution defined and limited the powers of the federal government, it did not protect the rights of American citizens. The Bill of Rights, which consists of the first ten amendments to the Constitution, does just that. Mindful of the history of religious oppression by the Church of England and the early American colonies, Congress used the First Amendment to protect religious freedom in America. The First Amendment says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The First Amendment, indeed the whole Bill of Rights, talks only about protecting American rights from action by the federal government. While some states included freedom of religion in their state constitutions, state governments did not have to obey the First Amendment regarding freedom of religion. After the American Civil War (1861-1865), however, the states adopted the Fourteenth Amendment to the U.S. Constitution in 1868. The Due Process Clause in the Fourteenth Amendment says, "No State shall ... deprive any person of life, liberty, or property, without due process of law." Interpreting the "liberty" portion of the Due Process Clause, the U.S. Supreme Court has decided that state governments also must obey most of the Bill of Rights, including the First Amendment's guarantee of freedom of religion.

The United States's recognition of religious freedom, however, wasn't as simple as adopting the First Amendment. When the states ratified the Bill of Rights in 1791, almost every American practiced some form of Protestant Christianity. When these Americans thought of religious tolerance, they did not think of Roman Catholicism, Buddhism, Islam, Judaism, or any of the world's other religions. Only through centuries of immigration has religious diversity flourished in the United States. That has been the true test of the strength of the nation's commitment to freedom of religion.

Free Exercise Clause

The First Amendment contains two clauses addressing religious freedom. The Free Exercise Clause, discussed here, prevents the government from "prohibiting the free exercise" of religion. The Establishment Clause, discussed below, prevents the government from making laws "respecting an establishment of religion."

What is the "free exercise" of religion? Certainly, it means the government cannot tell Americans what religious beliefs to have. But "exercise" means more than belief. The First Amendment also protects the right to engage in religious activity. For example, in Pierce v. Society of Sisters (1925), the U.S. Supreme Court overturned an Oregon law that required all children to attend public schools instead of private, religious schools.

The question becomes: How strong is the guarantee of freedom of religion? It surely does not, for instance, give Americans the right to make human sacrifices. In other words, religious freedom is not absolute, or unlimited. Cases under the Free Exercise Clause involve balancing the freedom to engage in religious activity against the government's right to pass laws for the health, safety, and general welfare of its citizens.

For example, in Reynolds v. United States (1879), members of the Church of Jesus Christ of Latter Day Saints, also called Mormons, challenged federal laws that prohibited polygamy. Polygamy is the practice of having more than one spouse. Male Mormons claimed that having more than one wife was a part of their religion protected by the First Amendment. The U.S. Supreme Court disagreed, saying that the Free Exercise Clause does not allow people to disobey laws that protect the general welfare of society.

Similarly, in Jacobsen v. Massachusetts (1905), the Court said Seventh-Day Adventists had to obey state laws requiring vaccinations, or shots, to protect against deadly viruses. In Employment Division v. Smith (1990), the Court said Oregon could prevent Native Americans from using peyote, a hallucinogenic drug, in their sacramental ceremonies.

When deciding if a law violates the right to freedom of religion, the U.S. Supreme Court says the law may not discriminate by treating religions differently. The Court itself, however, has reached conflicting results in different cases. In Braunfeld v. Brown (1961), the Court upheld a Philadelphia, Pennsylvania, law that required businesses to close on Sundays. An Orthodox Jewish businessman said the law interfered with his religion because he had to open his store on Sundays in order to close it on Saturdays for religious worship. The Supreme Court disagreed, saying the law made his religious observance more difficult, but not impossible. In Shervert v. Verner (1963), however, the Court said a Seventh-Day Adventist who was fired for refusing to work on Saturdays could not be denied unemployment compensation benefits (money to help people who lose their jobs).

Establishment Clause

The Establishment Clause prevents the government from making laws "respecting an establishment of religion." In 1802 President Thomas Jefferson wrote a letter in which he mentioned the need to maintain "a wall of separation" between church and state. Establishment Clause cases have adopted this language. They stand for the idea that religion and government must remain separate.

Keeping government and religion separate obviously means that government may not declare an official religion, such as the Church of England. It also means that government may not interfere in religious business. For example, in Watson v. Jones (1872), the Court ruled that a dispute within the Presbyterian Church could not be resolved in the courts, but only by church officials. In Kedroff v. St. Nicholas Cathedral (1952), which involved the Russian Orthodox Church, the Court said the federal government could not interfere even if church authority was being exercised by a foreign country that was hostile to the United States.

The more difficult Establishment Clause cases involve government assistance or approval of religion. These cases usually involve public and private schools or governmental holiday displays.

School prayer, for instance, has been a subject of heated debate in the United States. Polls suggest that most Americans want some form of prayer to be allowed in public schools. In Engel v. Vitale (1962), however, the Supreme Court said the Establishment Clause prevents public schools from using even a nondenominational prayer, one that does not come from a specific religion. Clearly, then, public schools also may not have readings from Bibles or other religious texts.

Public school curricula also have been the subject of Establishment Clause cases. In Epperson v. Arkansas (1968), the Supreme Court considered a state law that outlawed the teaching of evolution, the scientific theory that humans descended from monkey-like ancestors. The Court said prohibiting the teaching of evolution violated the Establishment Clause because it was designed to promote creationism, a religious belief that humans were created directly by God. As of 1999, states continued to wrestle with laws requiring schools to teach creationism, evolution, and both or neither.

Financial aid to schools also creates Establishment Clause controversies. In Everson v. Board of Education (1947), the Court said government cannot pass laws that "aid one religion, aid all religions, or prefer one religion over another." In Everson, however, the Court approved a state law that provided bus money to parents of children attending all schools, including private Catholic schools. The Court said because the law helped children get to school on public buses, it benefited education, not religion. Eventually the Court said that while the government may not aid religion, it also may deny to religious organizations commonly available public services, such as those related to health and safety.

This confusion led the Court in Lemon v. Kurtzman (1971) to adopt a three-part test for determining when a law violates the Establishment Clause. Under the Lemon test, a law is valid if it (1) has a secular, or non-religious, purpose; (2) has a main effect that neither advances nor restricts religion; and (3) does not foster excessive entanglement, or mixing, between religion and government.

Unfortunately, this test also is confusing and has produced conflicting results, especially in the area of governmental holiday displays. In County of Allegheny v. American Civil Liberties Union (1989), the Court considered challenges to two holiday displays. One, appearing in a county courthouse in Pittsburgh, Pennsyvania, displayed a Christian nativity scene with a message that said "Glory to God in the Highest." The other, appearing in front of a city-county governmental building in Pittsburgh, displayed a Christmas tree and a Jewish menorah, or candelabrum.

In a split decision, the Court decided that the first display violated the Establishment Clause by endorsing Christianity. The Jewish menorah, however, did not endorse religion because it was displayed with a Christmas tree, which conveyed a secular, non-religious holiday message. The result probably offended some Christians. The suggestion that the menorah did not convey a religious message probably offended some Jews. The case illustrates the difficulty of fairly enforcing the guarantee of freedom of religion.

Suggestions for further reading

Evans, J. Edward. Freedom of Religion. Minneapolis, MN: Lerner Publications Company, 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

Gay, Kathlyn. Church and State: Government and Religion in the United States. Brookfield, CT: Millbrook Press, 1992.

Hirst, Mike. Freedom of Belief. New York, NY: Franklin Watts, 1997.

Kleeberg, Irene Cumming. Separation of Church and State. New York: Franklin Watts, 1986.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Moskin, Marietta D. In the Name of God: Religion in Everyday Life. New York, NY: Atheneum, 1980.

Sherrow, Victoria. Freedom of Worship. Brookfield, CT: Millbrook Press, 1997.

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Freedom of Religion and the Establishment Clause

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