Relationship Between Religion Clauses and Free Speech Clause

prev | next

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.

The Supreme Court has described the First Amendment as protecting certain rights of conscience.1 This general description can encompass the related protections for both speech and religion: “Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual’s freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority.” 2

Supreme Court cases recognizing protections for religious speech have explored the precise relationship between the Free Speech and Free Exercise Clauses. The Court has recognized that each Clause protects private religious speech on its own,3 but in some cases, has invoked both Clauses to outline protections for religious speech.4 The two Clauses “work in tandem” : “[w]here the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.” 5 For example, in Jamison v. Texas, the Court held that a city ordinance prohibiting the distribution of handbills violated both the Free Exercise and the Free Speech Clauses when it was applied to a person who was advertising religious services and materials.6 The Court emphasized constitutional protections for expressing one’s views on public streets as well as protections for “a clearly religious activity.” 7 In a similar vein, some early cases interpreting free exercise protections seemed to consider certain free speech concepts such as the public forum doctrine.8

In a later case, though, the Supreme Court emphasized that the First Amendment nonetheless “protects speech and religion by quite different mechanisms,” pointing in part to the Establishment Clause.9 Namely, the Free Speech Clause contemplates that the government will participate in public discussions, as part of the “full expression” of speech.10 By contrast, while the Free Exercise Clause’s “freedom of conscience and worship . . . has close parallels in the speech provisions of the First Amendment, . . . the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs.” 11 However, the Court has since cautioned against a reading of the Clauses that creates tension or allows the Establishment Clause to “trump the other two.” 12 The Court has ruled that schools may not violate a party’s free exercise or free speech rights based on “phantom constitutional violations” stemming from “misconstruction[s] of the Establishment Clause.” 13

A number of Supreme Court cases have considered whether the government violated the Establishment Clause by impermissibly supporting or endorsing private religious speech.14 For instance, in Widmar v. Vincent, a university prevented a student group from using its buildings for religious worship, citing Establishment Clause concerns.15 The Court recognized that although the group’s private religious speech was protected by the Free Speech Clause, the government’s obligation to comply with the Establishment Clause could provide a compelling interest allowing the university to restrict that speech—if allowing the group to use its facilities would constitute impermissible support.16 However, in Widmar and a number of other cases, the Court held that schools do not violate the Establishment Clause merely by hosting religious speech, where the speech can be attributed to private parties rather than the government.17

To determine whether speech should be considered private, the Court has looked to factors such as whether a forum is generally available to a variety of participants, both religious and nonreligious, as well as the amount of control the government exercised over the speech.18 In one case, the Supreme Court held that a state impermissibly denied a private group permission to display a cross in a public park, concluding that the cross “was private expression . . . . fully protected under the Free Speech Clause.” 19 The fact that the “purely private religious speech” was “connected to the State only through its occurrence in a public forum” —a park where the state had previously hosted a variety of other speech—meant that the government did not violate the Establishment Clause by hosting the display.20

More broadly, the Supreme Court has rejected Establishment Clause challenges where schools “grant[ed] access to . . . facilities on a religion-neutral basis to a wide spectrum of student groups,” including religious groups.21 The Court stated this principle directly in Board of Education v. Mergens, in which a federal law prohibited public secondary schools from denying students access to forums based on the content of their speech.22 The Court upheld that law, holding that requiring schools to host religious speech did not violate the Establishment Clause.23 Among other factors, the Court highlighted that the law required schools to host a wide variety of speech “on a nondiscriminatory basis,” and that the specific school raising this constitutional claim had in fact recognized a “broad spectrum” of student clubs, “counteract[ing] any possible message of official endorsement of or preference for religion or a particular religious belief.” 24

By contrast, in Santa Fe Independent School District v. Doe, the Court held that student-led prayers held prior to public school football games could not “be regarded as ‘private speech.’” 25 The Court emphasized that not only did the invocations “take place on government property at government-sponsored school-related events,” but the government also helped to select the speaker, “invite[d] and encourage[d] religious messages,” and otherwise appeared to support the speech.26 In addition, the Court noted that the school allowed “only one student, the same student for the entire season, to give the invocation,” which was “subject to particular regulations that confine the content and topic of the student’s message.” 27 Consequently, the school practice violated the Establishment Clause.28

Thus, while the Free Speech and the Free Exercise Clauses serve similar goals of preventing government infringement of individual freedom of thought, their protections are not necessarily coextensive.29 Further, while Establishment Clause concerns could theoretically justify restrictions on private religious speech, the Court has largely held that the government only violates the Establishment Clause if it goes beyond merely hosting private religious speech to give special support to religious activity. Cases reading the Establishment Clause to have a more limited scope could further contract the government’s ability to restrict religious speech by employees or on public property.30 For example, in Kennedy v. Bremerton School District, the Supreme Court ruled that a school violated the Free Exercise and Free Speech Clauses when it punished a football coach for praying on the football field after games.31 The Court refused to consider concerns about government endorsement of prayer, and in considering the applicability of Santa Fe, looked only to aspects of that decision that it believed went to government coercion.32 Ultimately, the Court concluded there was no coercion in the coach’s prayer practice, as discussed in more detail in another essay.33

1: See, e.g., Wallace v. Jaffree, 472 U.S. 38, 50 (1985) (saying the Supreme Court “has identified the individual’s freedom of conscience as the central liberty that unifies the various Clauses in the First Amendment” ); see also Amdt1.2.2.1 Introduction to the Historical Background on the Religion Clauses.
2: Wallace, 472 U.S. at 52.
3: See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 (1981) (saying that religious worship and discussion “are forms of speech and association protected by the First Amendment” ); Cantwell v. Connecticut, 310 U.S. 296, 300 (1940) (ruling that applying a law prohibiting solicitation to people engaged in religious speech violated the Free Exercise Clause).
4: See, e.g., Marsh v. Alabama, 326 U.S. 501, 509 (1946) (holding both clauses protected a person’s right to distribute religious literature); Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943) (same); Largent v. Texas, 318 U.S. 418, 422 (1943) (same); Jamison v. Texas, 318 U.S. 413, 414 (1943) (same).
5: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 11 (U.S. June 27, 2022). In this case, the Supreme Court separately analyzed the Free Exercise and Free Speech Clause claims of a football coach who sought to pray on the football field after games, and held that regardless of which constitutional standard it applied, the coach prevailed. See id. at 19–20.
6: Jamison, 318 U.S. at 414.
7: Id. at 416–17.
8: These cases are discussed in more detail in Amdt1.4.3.1 Laws Neutral to Religious Practice during the 1940s and 1950s. By contrast, some Supreme Court cases have invoked only the Free Speech Clause to hold that religious speech is constitutionally protected. See, e.g., Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding the Free Speech Clause prevented the government from requiring people to display a message they objected to on moral and religious grounds); Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640, 654 (1981) (holding the Free Speech Clause did not prevent the government from imposing reasonable time, place, and manner restrictions on an organization’s religious practice). Cases involving only the Free Speech Clause and not the Free Exercise Clause are discussed in Amendment 1.7 Free Speech Clause.
9: Lee v. Weisman, 505 U.S. 577, 591 (1992).
10: Id.
11: Id.
12: Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 30 (U.S. June 27, 2022) (internal quotation marks omitted).
13: Id. at 30–31.
14: See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.12 (2000) (collecting cases). The Free Speech Clause aspects of these cases are discussed Amdt1.7.7.1 The Public Forum and Amdt1.7.8.2 Government Speech and Government as Speaker.
15: Widmar v. Vincent, 454 U.S. 263, 265, 270 (1981).
16: Id. at 269–71.
17: Id. at 274; see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) (holding elementary school would not violate the Establishment Clause by allowing a religious club to use its facilities); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 840 (1995) (holding university would not violate the Establishment Clause by allowing religious groups to use generally available student activity fund to publish religious newspaper); Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (holding school board would not violate the Establishment Clause by allowing a church to use its facilities to show a religious film); Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990) (holding federal law did not violate the Establishment Clause by creating a funding condition prohibiting public secondary schools from denying access to forums based on students’ speech, including religious speech). Cf. Shurtleff v. Boston, No. 20-1800, slip op. at 12 (U.S. May 2, 2022) (implicitly ruling city would not violate Establishment Clause by flying a religious flag at city hall, where the flag raising did not qualify as government speech under Free Speech Clause).
18: See, e.g., Rosenberger, 515 U.S. at 842. Rosenberger is discussed in more detail in Amdt1.3.4.4 Application of the Lemon Test.
19: Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
20: Id. at 767 (plurality opinion); see also id. at 774–75 (O’Connor, J., concurring) (agreeing with the plurality’s holding, noting that the case involved “truly private speech . . . allowed on equal terms in a vigorous public forum” ).
21: Rosenberger, 515 U.S. at 842.
22: Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990).
23: Id. at 248.
24: Id. at 250, 252.
25: Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000).
26: Id. at 302, 306–10.
27: Id. at 303.
28: Id. at 317.
29: Cf., e.g., Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 19–20 (U.S. June 27, 2022) (noting dispute over whether Free Exercise Clause strict scrutiny analysis or more lenient Free Speech Clause test applied to expressive activity protected under both Clauses).
30: See id. at 29–30.
31: See id. at 31–32.
32: See id. at 23, 30.
33: See id. at 29–30; Amdt1.3.7.2 Coercion and Establishment Clause Doctrine.