Religious Freedom Under the Constitution
The First Amendment of the Constitution contains two clauses related to religious freedom: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prevents the government from making a law related to "an establishment of religion," which means that it cannot endorse a certain religion or become entangled in religious activities. This essentially describes the separation of church and state that is fundamental to American democracy. Meanwhile, the Free Exercise Clause prevents the government from prohibiting the free exercise of individual religious beliefs. It also provides some protection for religious practices.
These clauses often overlap, but they also may conflict. For example, a government entity may violate the Free Exercise Clause if it does not provide some basic services to religious institutions. On the other hand, a government entity may violate the Establishment Clause if it provides too many services to religious institutions. The government thus is tasked with striking a balance between the prohibitions in these clauses, which is not always straightforward.
How the Establishment Clause Protects Religious Freedom
The Supreme Court generally has endorsed an interpretation of the Establishment Clause that requires the government to refrain from favoring religion over secularism, and from favoring any religion over any other religion. The Court traditionally applied a test known as the Lemon test (from its decision in Lemon v. Kurtzman) when deciding whether a government action violates the Establishment Clause. This test consists of three components:
- Does the law have a secular purpose? Posting the Ten Commandments on government property violates the Establishment Clause, but paying for textbooks for secular courses in religious schools does not.
- Does the law have a primary effect that does not advance or inhibit religion? The government cannot give a person an automatic day off from work on any day that the person recognizes as their "Sabbath."
- Did the government avoid excessive entanglement with religion? The government cannot pay salaries to teachers in religious schools, even if they teach secular courses, since the line between religious and secular activity here is too blurry to assure the separation of church and state.
If a law passed each of these three hurdles, the Court would find that it did not violate the Establishment Clause. However, not every Establishment Clause decision adhered strictly to the Lemon test, and the Court recently indicated that it has abandoned this test for a more fluid approach. Cases often rely heavily on their specific facts. For example, the government can provide buses to take children to religious schools, but they cannot provide buses to take children in religious schools on field trips.
How the Free Exercise Clause Protects Religious Freedom
The Free Exercise Clause prevents the government from targeting certain religious groups or prohibiting certain religious practices. However, the government can prohibit certain conduct in general without creating an exception for people who engage in that conduct for religious reasons. These laws initially needed to pass strict scrutiny. This standard of review requires the government to identify a compelling government interest and prove that the law is necessary to serve that interest. The law must be narrowly tailored and use the least restrictive means to further the government interest.
Most laws do not survive strict scrutiny, and the Supreme Court lightened the burden on the government in Employment Division v. Smith in 1990. In this case, the Court ruled that a law does not violate the Free Exercise Clause if it is generally applicable and was not designed to interfere with religion, regardless of its actual effect on religious practices. Congress responded with the Religious Freedom Restoration Act (RFRA), which provided that the government cannot substantially burden the free exercise of religion, even when enacting a rule of general applicability. (RFRA essentially reinstated strict scrutiny for these laws.) The Supreme Court struck down RFRA as applied to the states, but it remains in effect as applied to the federal government. Over 20 states have enacted their own versions of RFRA as well.
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