Question

The First Amendment protects religious liberty. Identify the two relevant clauses of the First

Amendment that do so. Explain the Supreme Court’s interpretation of each of the two clauses.

Make sure to discuss cases as examples in your response.

Answer 1

• Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
• Two clauses of the First Amendment concern the relationship of government to religion: the Establishment Clause and the Free Exercise Clause.
• The First Amendment's Establishment Clause prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another.
• At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, such as existed in many other countries at the time of the nation's founding.
• The establishment clause has generated a good deal of controversy in the last fifty years, especially in the area of school prayer and government funding of parochial (religious) schools. There has not been general agreement on the Supreme Court as to the meaning of this clause, and this has led to seemingly inconsistent decisions.
• Some justices take a very narrow view of the clause, arguing that the government violates it only if it actually establishes a state religion or coerces individuals to participate in religion or religious activities. On the other side, some justices have argued for a strict wall of separation between church and state, not allowing any government aid or support for religion. Neither of these positions, however, has usually commanded a majority of the Court.
• The approach taken most often by the Court is one of neutrality. That is, the government may not favor one religion over another, or religion over secularism (non-religion). Under this approach the government may not endorse (actually or symbolically) religion.
• The most controversial decisions involving the establishment clause have involved the schools, both public and private. As to public schools, the issue has been prayer in the schools. In 1962, the Supreme Court held that a school policy of having a daily prayer violated the establishment clause, even though the prayer was non-denominational and students were not compelled to participate. This decision has been severely criticized by some politicians and religious leaders and has led to several unsuccessful attempts to amend the Constitution.
• The Supreme Court has held very firm in keeping prayer and other religious activities out of school and official school functions. It has held that schools may not have daily Bible readings, or moments of silence for meditation or prayer, or prayers at school graduations, or even student-initiated and led prayers at a high school football game.
• Decisions involving the free exercise clause have not been as controversial as those involving the establishment clause. It is clear that all individuals have an absolute right to hold any religious belief, which may not be interfered with by the government. The problem arises as to what extent the government can control conduct that is based on religious belief.
• “Congress shall make no law … prohibiting the free exercise (of religion)” is called the free-exercise clause of the First Amendment. The free-exercise clause pertains to the right to freely exercise one’s religion. It states that the government shall make no law prohibiting the free exercise of religion.
• Although the text is absolute, the courts place some limits on the exercise of religion. For example, courts would not hold that the First Amendment protects human sacrifice even if some religion required it. The Supreme Court has interpreted this clause so that the freedom to believe is absolute, but the ability to act on those beliefs is not.
• Although the government may not specifically target religious practices, its general restrictions on conduct which are directed at everyone may also be applied to persons engaging in that proscribed conduct for religious reasons. For example, the Court held that laws prohibiting polygamy (the practice of having more than one spouse) could be applied to Mormons, even though they claimed that the practice was required by their religion.
• In the 1990 case of Employment Division v. Smith, the Court changed positions and held that as long as a law was applied to all persons and was not passed specifically to interfere with religion, it would be upheld even if it significantly affected religious practices. The Court held that the state could deny unemployment benefits to a group of Indians who had been fired for using peyote even though they claimed that it was needed in their religious ceremonies. The state was not required to make any special justifications for the law.