Establishment of Religion and Free Exercise Clauses

The First Amendment of the U.S. Constitution begins as follows: ‘‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’’ The first clause is commonly called the Establishment Clause, and the second the Free Exercise Clause. Together they are commonly called the Religion Clauses. Their meaning, however, is a matter of considerable debate. Do the Clauses Have Different Meanings? The first issue is whether the two clauses have different meanings or are two different ways of making the same point. Scholars who say the latter contend that the clauses together were intended to prevent Congress from directly addressing and legislating on the subject of religion or any religious issue. They take this position, first, because during the ratification of the Constitution several of its defenders stated that it was not intended to grant Congress any power over religion. For example, at the Virginia Ratifying Convention, James Madison said, ‘‘There is not the shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.’’ Second, they note that the Constitution’s opponents, unconvinced by Madison’s and similar assurances, insisted that an amendment be added to the Constitution to make it abundantly clear that Congress has no jurisdiction over religion. Finally, both the First Amendment’s initial words, ‘‘Congress shall make no law . . . .,’’ and the fact that Madison originally intended for it to become part of Article I, section 9, of the Constitution, which lists restraints on the powers granted Congress in section 8, imply that the Religion Clauses were meant to deny Congress any jurisdiction over religion. Those scholars who interpret the Religion Clauses as a single provision meant to prevent the national government from legislating on the subject of religion are, however, divided over why early Americans wanted such a provision. Some scholars contend that the Religion Clauses were intended to protect states’ rights. They note that many of the Constitution’s opponents feared that the new national government it created would be so powerful as to significantly weaken, if not destroy, the state governments. They also note that the states traditionally had the power to legislate on the subject of religion. The Religion Clauses, they reason, were intended to protect this power of the states by denying it to the national government. Other scholars say that the reason the Religion Clauses gave jurisdiction over religion to the states was because the nation was so divided over the issue of church–state relations that the framers of the Religion Clauses could not possibly have agreed on what policy toward religion the national government should have. Rather than proposing a policy that would have been controversial and divisive, they drafted the Religion Clauses simply as a way of saying that the issue should be left up to the individual states to resolve. In either case, whether to protect states’ rights or to avoid dealing with an issue ‘‘too hot to handle,’’ the Religion Clauses have no substantive meaning, that is, they express no position on what the proper relationship between religion and government should be. Rather, they uphold the principle of federalism. Another, larger group of scholars, while agreeing that the Religion Clauses were meant to deprive the national government of jurisdiction over religion, contend that they did so primarily, if not entirely, for substantive reasons. They point out that most early Americans thought that whenever any government legislates on the subject of religion it poses a threat to religious freedom and to the integrity of religion itself, and often leads to conflict among different religions and to political instability. They also note that according to the contract theory of government, originally propounded by John Locke and widely accepted by early Americans, liberty of conscience is an inalienable right—one that persons can never and have never ceded to any government’s control. In contrast to the preceding interpretations of the Religion Clauses, the Supreme Court and some scholars have said that the Establishment and Free Exercise Clauses have different meanings and were not intended to deprive the government of all jurisdiction over religion. Essentially the Court has said that the Free Exercise Clause prohibits the government from harming or disfavoring religion in general, any particular religion, or any person or group because of her/ his/its religion, and the Establishment Clause prohibits it from aiding or favoring the same. It has also said that for the Free Exercise Clause, but not the Establishment Clause, to be violated, coercion must be present or threatened. If the Clauses Have Different Meanings, Can They Be Reconciled? The Court’s interpretation of the Religion Clauses has proven to be problematic, because it makes it difficult for courts to apply them in cases without creating conflict between the clauses. Is it possible for the government to avoid harming religion without aiding it, and vice versa? The answer depends on the kind of harm or aid that is prohibited—direct and intentional or indirect and unintentional. If it is the former, then conflict between the two clauses can be avoided, for there is no reason why the government’s not directly and intentionally harming religion means that it is necessarily aiding religion, and vice versa. According to this interpretation, what the two clauses require is government neutrality toward all religions and between religion and nonreligion, and this can be achieved if the government avoids directly legislating either for or against religion, any particular religion, or any person or group because of his/her/its religion.

On the other hand, if the Court were to hold that the Religion Clauses prohibit harm and aid that is indirect and unintentional as well as direct and intentional, then it becomes difficult if not impossible to reconcile the two clauses. For example, if the Free Exercise Clause is interpreted as prohibiting all government- imposed restraints or burdens on religion so that persons or groups do not have to obey valid, secular, generally applicable laws, provided they have a sincere religious reason for not doing so, then it can be argued that the government is favoring or giving special treatment to religious persons and groups, because nonreligious ones are not entitled to such exemptions. At times, however, this is how the Court has interpreted the Free Exercise Clause (see Sherbert v. Verner [1963] and Wisconsin v. Yoder [1971]). Similarly, if the Establishment Clause is interpreted as prohibiting all government aid to religion so that educational and welfare-type programs that are primarily secular in nature but sponsored and operated by religious organizations are precluded from receiving government funding, then it can be argued that the government is disfavoring or discriminating against religious organizations, because nonreligious organizations are allowed to receive the government funding. At times, however, this is how the Court has interpreted the Establishment Clause (see Lemon v. Kurtzman [1971] and Aguilar v. Felton [1985]).

Since approximately 1990, primarily to avoid interpreting the Religion Clauses in a way that would cause them to conflict with each other, the Court has adopted neutrality as the guiding principle to be followed when it decides cases arising under the Religion Clauses. In effect, it has said that it is only direct, intentional harm or aid that is prohibited by the free exercise and Establishment Clauses, respectively. In Employment Division, Dept. of Human Resources v. Smith (1990), therefore, the Court held that the Free Exercise Clause does not guarantee a right to religionbased exemptions from valid, secular, generally applicable laws that only indirectly and unintentionally harm the exercise of religion, and in Agostini v. Felton (1997) and Zelman v. Simmons-Harris (2002), the Court upheld government funds going to parochial schools because the aid to religion was indirect and secondary.

Some scholars have criticized the Court’s move to neutrality as the unifying principle of the Religion Clauses. Those who believe that the Free Exercise Clause guarantees a right to religion-based exemptions from valid, secular laws contend that the basic principle underlying and unifying both Religion Clauses is not neutrality but religious freedom. They argue that even indirect and unintentional government regulations of or burdens on the exercise of religion should be disallowed except in those cases when the government can provide ‘‘compelling’’ reasons for them. On the other hand, those who believe that the Establishment Clause prohibits even indirect and unintentional aid to religion contend that the basic principle underlying and unifying both Religion Clauses is separation of government and religion. They argue that government funding of church-run secular programs inevitably involves government control over and entanglement in religion.

The Court, however, is not likely to adopt either the freedom or separation interpretation of the Religion Clauses, even though theoretically either one could work to unify the clauses. The main problem with both is that as a practical matter there cannot be either complete religious freedom or complete separation of government and religion, and yet there is no workable test for determining where to ‘‘draw the line,’’ that is, when to compromise either freedom or separation. In contrast, neutrality, which prohibits only direct, intentional harm or aid to religion, is relatively easy to apply and, thus, seems likely to remain as the dominant principle for reconciling the Religion Clauses.

ELLIS M. WEST

References and Further Reading

• Amar, Akhil R. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998.
• Conkle, Daniel O., The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future, Indiana Law Journal 75 (Winter 2000): 1–36.
• Kurland, Philip B. Religion and the Law: Of Church and State and the Supreme Court. Chicago: Aldine, 1962.
• Laycock, Douglas, Formal, Substantive, and Disaggregated Neutrality Toward Religion, DePaul Law Review 39 (1990): 993–1018.
• Sherry, Suzanna, Lee v. Weisman: Paradox Redux, Supreme Court Review 1992 (1993): 123–153.
• Smith, Steven D., The Rise and Fall of Religious Freedom in Constitutional Discourse, University of Pennsylvania Law Review 140 (1991): 149–240.
•  ———. Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom. New York: Oxford University Press, 1995.

Cases and Statutes Cited

• Agostini v. Felton, 521 U.S. 203 (1997)
• Aguilar v. Felton, 473 U.S. 402 (1985)
• Employment Division, Dept. of Human Resources v. Smith, 494 U.S. 872 (1990)
• Lemon v. Kurtzman, 403 U.S. 602 (1971)
• Sherbert v. Verner, 374 U.S. 398 (1963)
• Wisconsin v. Yoder, 406 U.S. 205 (1972)
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

See also Establishment Clause (I): History, Background, Framing; Establishment Clause Doctrine: Supreme Court Jurisprudence; Free Exercise Clause (I): History, Background, Framing; Free Exercise Clause Doctrine: Supreme Court Jurisprudence