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Amdt1.2.1 Overview of the Religion Clauses (Establishment and Free Exercise Clauses)

First Amendment:

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 first two provisions of the First Amendment, known as the Religion Clauses, state that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” 1 The Establishment and Free Exercise Clauses were ratified as part of the Bill of Rights in 17912 and apply to the states by incorporation through the Fourteenth Amendment.3 Together with the constitutional provision prohibiting religious tests as a qualification for office,4 these clauses promote individual freedom of religion and separation of church and state.

The Supreme Court has acknowledged that the Religion Clauses “are not the most precisely drawn portions of the Constitution.” 5 The Framers’ goal was “to state an objective, not to write a statute.” 6 The clauses are “cast in absolute terms” and either, “if expanded to a logical extreme, would tend to clash with the other.” 7 Accordingly, the Court has said that “rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited.” 8 The breadth of the clauses has allowed debates over their proper scope since ratification.9 It has also led to some “internal inconsistency” in the Supreme Court’s opinions interpreting these clauses,10 as well as interpretations that have shifted over time.

The following essays discuss the historical background of the Religion Clauses, including a discussion of colonial religious establishments and the shift in early America towards greater religious freedom.11 Next, essays address how both clauses prevent the government from interfering in certain religious disputes.12 Essays then examine, in turn, Supreme Court interpretations of the Establishment Clause13 and the Free Exercise Clause.14 Finally, two essays explore the relationship between the two Religion Clauses,15 as well as the relationship between the Religion Clauses and the First Amendment’s Free Speech Clause.16

One preliminary issue broadly relevant across Religion Clause jurisprudence is what the First Amendment means when it refers to “religion.” Some early cases suggested that courts might determine what is properly considered to be “religion.” 17 In an 1890 case rejecting a Free Exercise Clause challenge to a law disenfranchising polygamists, the Court said calling the advocacy of polygamy “a tenet of religion” would “offend the common sense of mankind.” 18 Later cases, however, seemed to retreat from this suggestion as they restricted the ability of the government, including courts, to judge the legitimacy of religious beliefs.19 Nonetheless, the Religion Clauses extend only to sincere religious activities, and in evaluating constitutional claims, the government may investigate whether a person’s beliefs are insincere and whether they are secular, stemming from political, sociological, or philosophical views rather than religious beliefs.20

A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected.21 One 1965 case noted “the ever-broadening understanding of the modern religious community,” discussing conceptions beyond even traditional theism.22 In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not “aid all religions as against non-believers,” or “aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.” 23

U.S. Const. amend. I (emphasis added). back
For a discussion of the adoption of the Religion Clauses, see Amdt1.2.2.7 Constitutional Convention, Ratification, and the Bill of Rights. back
See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause). back
ArtVI.C3.2.1 Historical Background on Religious Test for Government Offices. back
Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970). back
Id. back
Id. at 668–69. See also Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses. back
Walz, 397 U.S. at 669. back
See Amdt1.2.2.8 Early Interpretations of the Religion Clauses. back
Walz, 397 U.S. at 668. back
Amdt1.2.2.1 Introduction to the Historical Background on the Religion Clauses. back
Amdt1.2.3.1 Overview of Government Resolution of Religious Disputes; Amdt1.2.3.2 Doctrinal Basis of Government Resolution of Religious Disputes; Amdt1.2.3.3 Neutral Principles of Law and Government Resolution of Religious Disputes; and Amdt1.2.3.4 Church Leadership and the Ministerial Exception (government resolution of religious disputes). back
Amdt1.3.1 General Principle of Government Neutrality to Religion to Amdt1.3.7.3 Establishment Clause and Historical Practices and Tradition (Establishment Clause). back
Amdt1.4.1 Overview of Free Exercise Clause to Amdt1.4.3.5 Laws Neutral to Religious Practice Regulating Prisons and the Military (Free Exercise Clause). back
Amdt1.5 Relationship Between the Establishment and Free Exercise Clauses. back
Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause. back
See Reynolds v. United States, 98 U.S. 145, 162 (1879) (discussing the meaning of “religion” ). back
Davis v. Beason, 133 U.S. 333, 341–42 (1890), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969). back
See, e.g., United States v. Seeger, 380 U.S. 163, 184 (1965); United States v. Ballard, 322 U.S. 78, 88 (1944); Amdt1.4.2 Laws Regulating Religious Belief. back
Frazee v. Ill. Dep’t of Emp. Sec., 489 U.S. 829, 833 (1989); see also, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (noting that “philosophical” beliefs would not “rise to the demands of the Religion Clauses,” but finding evidence for “the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction” ). In a case interpreting a federal conscientious objector statute, the Supreme Court said that “the central consideration in determining whether . . . beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant’s life.” Welsh v. United States, 398 U.S. 333, 339 (1970). back
See, e.g., Frazee, 489 U.S. at 834; Cruz v. Beto, 405 U.S. 319, 322 (1972). back
Seeger, 380 U.S. at 180. back
Torcaso v. Watkins, 367 U.S. 488, 495 (1961). back