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Religious Freedom Toolkit

Part III | Expanded Analysis

Category F | Doctrines

Topic 32 | Non-establishment and free exercise

The U.S. Constitution’s First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” These two provisions, the Establishment Clause and the Free Exercise Clause, both serve a single objective: religious freedom for all. The Establishment Clause (or, more accurately, Non-establishment Clause) does this by guaranteeing that there will be no state religion and that religious groups should be treated equally. The Free Exercise Clause does this by limiting the types of burdens the state can place on religious actions or manifestations.827

Role of the U.S. Supreme Court  

As the final arbiter of constitutional law in the United States, the U.S. Supreme Court has largely determined how the values of non-establishment and free exercise of religion are interpreted and lived in U.S. society.

Establishment Clause  

The First Amendment’s Establishment Clause states that “Congress shall make no law respecting an establishment of religion . . . .”828 This clause generally restricts the establishment of an official religion in the United States and prohibits the U.S. government from “unduly favor[ing] one religion over another,” favoring religion over non-religion, or favoring non-religion over religion.829 While the broad outlines of the Clause may be understood, its specific applications have long been debated.830

Separation vs. accommodation  

The first U.S. Supreme Court case to apply the Establishment Clause to the U.S. states was Everson v. Board of Education (1947).831 In that case, the Court explained the Establishment Clause as follows:

"The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’"832

The Court further outlined major “separationist” and “accommodationist” arguments relative to state-religion relationships, which are still used in Establishment Clause debates today. Separationist arguments “insist[] on more rigid sequestration of religion and state,” whereas accommodationist arguments “incline toward separation of church and state, yet retain a posture of benevolent neutrality toward religion.”833

In the end, the Everson Court leaned toward accommodation, holding that the use of state funds to reimburse student transportation to parochial schools did not violate the Establishment Clause, since the state provided the funds neutrally to all students, regardless of their school of choice.834 The Court clarified that the Establishment Clause “requires a state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.”835 Everson’s explication of the Establishment Clause remains influential in U.S. jurisprudence and culture, including its evocation of Thomas Jefferson’s separationist description of the Establishment Clause as “building a wall between Church & State.”836

The Lemon test

Some 25 years after Everson, the Supreme Court formulated a test in Lemon v. Kurtzman (1971) to determine which government actions violate the Establishment Clause.837 According to the Lemon test, a government action must fulfill three separate requirements to comply with the Clause: (1) it must have a secular purpose, (2) it can neither advance nor inhibit religion, and (3) it cannot result in government entanglement with religion.838 In the following two decades, the Lemon test was usually applied to limit state support of religion, especially in the parochial school context.

In subsequent decades, the Lemon test was widely criticized, and the Supreme Court often decided Establishment Clause cases without invoking it. In 2022, the Court explicitly abandoned the Lemon test839 and replaced it with a new “history and tradition” test: courts must now determine whether a law or government action violates the Establishment Clause “by reference to historical practices and understandings . . . . of the Founding Fathers.”840

Other Establishment Clause tests  

Over the years, the Court has also applied custom interpretive “tests” in specific recurrent areas of controversy.841 The majority of these Establishment Clause cases fall into one of three areas: (1) financial aid to religious education or other social welfare activities conducted by religious institutions, (2) government-sponsored prayer, and (3) government-owned, -hosted, or -sponsored religious symbols.842

(1) Government funds to religious institutions

Two common interpretations of the Establishment Clause relate to financial aid to religious institutions: (a) “the government must be neutral between religious and non-religious institutions that provide education or other social services” and (b) “no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine.”843 After Everson, the Supreme Court tended to employ the first interpretation.844 In the 1970s and 1980s, immediately post–Lemon test, the Court tended toward the second interpretation.845 And in more recent years, the Court has firmly returned to the first.846

(2) Government-sponsored prayer  

The U.S. Supreme Court has held that the Establishment Clause prohibits public schools from leading students “in prayer or Bible reading, even on an ostensibly voluntary basis.”847 That prohibition now encompasses prayers during public school graduation ceremonies848 and football games.849 However, in Kennedy v. Bremerton School District (2022), the Court held that a high school football coach could publicly pray after football games on the field (where some students would join him) because he did not coerce others to pray with him.850

Government-sponsored prayer has generally been held constitutional where the context involves adults (and, thus, less likelihood of coercion), a history and tradition of prayer (such as in legislative settings), and/or a nondiscrimination policy (inviting prayer-givers from faiths, or non-faiths, representative of the general population).851

(3) Government-sponsored religious symbols  

Several U.S. Supreme Court cases have considered the constitutionality of displays of religious symbols on public property or in public spaces. Disputed displays have included Christmas nativity scenes in or near government buildings, crosses on public land, and Ten Commandment displays in public schools and parks, among others. Beginning in 1984, the Court periodically employed the “endorsement test” to determine whether the religious display in question would appear to a reasonable observer to be endorsed by the state;852 however, in 2022, the Court declared the endorsement test “abandoned.”853 In 2019, the Court signaled its approval of the “history and tradition” test, holding that a Latin cross World War I memorial in a state park was constitutional because, throughout its 94-year history, the cross “acquired additional layers of historical meaning” and came to represent more than religion within the community.854

In cases involving religious symbols in public spaces, the Court’s decisions often turn on context-specific facts, and justices are “often closely divided.”855 Two 2005 opinions released on the same day, for example, considered the constitutionality of Ten Commandments displays in two different states, in two different contexts, and reached opposite holdings.856 Such cases “illustrate that the Court has declined to take a rigid, absolutist view of the separation of church and state.”857

Free Exercise Clause  

The First Amendment’s Free Exercise Clause establishes that “Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .”858 The U.S. Supreme Court’s interpretation of the Clause has varied over the years in landmark cases, as discussed below.

Belief/action dichotomy  

In its earliest free exercise decision, Reynolds v. United States (1878), the Supreme Court introduced a constitutional doctrine known as the “belief/action dichotomy.”859 The Court explained that, while the Free Exercise Clause protects religious beliefs absolutely, “practices” or actions motivated by those beliefs are subject to important limitations, including limitations prescribed by criminal law.860

In Reynolds, a Utah man convicted of bigamy appealed to the Supreme Court on the grounds that his religious beliefs motivated his actions. The Court held that, although his actions were motivated by his religious beliefs, they were still against the law. The Court reasoned that allowing religious exemptions for illegal behavior would be a slippery slope: “To permit [a religious exemption for plural marriage] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”861

Compelling state interest test  

While the belief/action doctrine persisted, a twentieth-century Supreme Court held in some cases that the Free Exercise Clause requires religious exemptions to laws.

In Sherbert v. Verner (1963),862 a member of the Seventh-day Adventist Church had been fired by her employer for refusing to work on Saturdays (the Sabbath of her faith) and was denied unemployment benefits for the same reason. (The law required the unemployed to accept available work.) The Supreme Court introduced a three-pronged “compelling state interest” test to determine whether the government had violated Sherbert’s right to free exercise. That test asks

  • (1) whether a government restriction burdens the free exercise of religion restriction and
  • (2) whether the restriction is narrowly tailored
  • (3) to achieve a compelling state interest.863

Under this test, if government action fails to meet the requirements in prongs 2 and/or 3, it is deemed to violate the Free Exercise Clause. The Supreme Court held that the state’s denial of unemployment benefits to Sherbert was not justified by a compelling state interest, since the state offered no evidence to back its claims that granting Sherbert benefits would open the floodgates to fraudulent claims.864

The Court used a similar compelling-interest standard in Wisconsin v. Yoder (1972).865 In that case, Old Order Amish and Amish Mennonite parents challenged Wisconsin’s school attendance law, which mandated attendance through age 16. The parents claimed the law burdened their free exercise, since their religious practice was to educate their children at home after the eighth grade, for purposes of shielding their children from worldly influence, strengthening their faith, and preparing them for community life.866 The Supreme Court found that the state’s interest in an educated populace was compelling;867 however, the Court held that the law was not narrowly tailored to that interest, since the Amish community’s informal vocational education system adequately prepared its children to contribute to society.868

Neutral, generally applicable laws  

The Supreme Court eventually moved away from the compelling state interest test and became less willing to grant religious exemptions to laws. This trend culminated in the landmark Employment Division v. Smith (1990) decision, which held that neutral and generally applicable laws that burden religious exercise do not violate the Free Exercise Clause. 869

In Smith, two members of a Native American church were fired from their jobs because they used the hallucinogenic drug peyote—which was prohibited in their state—during their church’s sacramental ceremonies. When the men sought unemployment benefits from the state, their applications were denied because they had been fired for using an illegal drug.

In contrast to its decision in Sherbert, the Supreme Court in Smith held that the state’s refusal to grant unemployment benefits did not violate the Free Exercise Clause. The Court invoked Reynolds in reiterating that religious practices are not wholly exempt from government restriction under the Free Exercise Clause. The Court further explained that because the law banning peyote applied to all citizens and did not target a specific religion it did not violate the Clause. The Court distinguished Smith from Sherbert, reasoning that in unemployment cases like Sherbert, the state had to carry out an individualized consideration of employees’ circumstances; where such discretion is allowed, the state has to show a compelling reason for burdening the free exercise of religion. However, because the state law in Smith was neutral (i.e., it did not target a specific religion or religious practice) and generally applicable (i.e., it applied to all citizens), and thus left no room for discretionary considerations, the Court determined it was constitutional.

While the Supreme Court has not always whole-heartedly applied the Smith standard, it is still the law today.870

Religious Freedom Restoration Acts and RLUIPA

In response to Smith, the U.S. Congress enacted the Religious Freedom Restoration Act (RFRA, 1993). RFRA (rif-ruh) legislatively reinstated application of Sherbert’s and Yoder’s “compelling state interest” standard to government restrictions on religious exercise. Four years later, in City of Boerne v. Flores, the Supreme Court invalidated the application of RFRA to the states, though it still applies to U.S. federal government action.871

In response to City of Boerne, most state governments have enacted their own RFRA laws or have otherwise established RFRA-like protections; these generally require courts to apply the compelling state interest test to substantial government burdens on religious exercise, even if the burdens result from neutral, generally applicable laws.872 In states without RFRA-like protections, the Smith standard still applies to government restrictions on free exercise—that is, burdens on religious exercise imposed through “neutral laws of general applicability”873 presumptively do not violate the Free Exercise Clause.

In 2000, the U.S. Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), in response to City of Boerne.874 RLUIPA applies the compelling state interest test to substantial burdens on free exercise in relation to land use/zoning laws and institutionalized persons—two common sources of free exercise claims.

Conclusion  

Since the United States’ founding, freedom of religion and separation of state and religious institutions have been hallmarks of the U.S. system of government.875 While the Supreme Court’s interpretations of the U.S. Constitution’s Free Exercise and Establishment Clauses have varied over the years, the protections provided by the scant 16 words in those two clauses have proven robust.

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References

827. Toolkit Topic 32 (Non-establishment and free exercise) was drafted with contributions by Tate Frodsham, 2023 ICLRS Summer Fellow.

828. US CONSTITUTION amend. I.

829. Establishment Clause, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/establishment_clause (last visited Dec. 2024).

830. Stephanie H. Barclay, Brady Earley & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 ARIZONA LAW REVIEW 505, 505 n.1, 508, 516 (2019).

831. Everson v. Board of Education, 330 U.S. 1 (1947). The Court explicitly held in Everson, for the first time, that the “First Amendment [is] made applicable to the states by the Fourteenth” Amendment. Id. at 8. The explicit finding by the U.S. Supreme Court that the Fourteenth Amendment’s Due Process Clause requires states (and not just the federal government) to uphold specific Bill of Rights protections is known as “incorporation.”

832. Id. at 15–16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1878)).

833. W. COLE DURHAM, JR. & BRETT G. SCHARFFS, LAW AND RELIGION: NATIONAL, INTERNATIONAL, AND COMPARATIVE PERSPECTIVES 127 (2d ed. 2019).

834. Id. at 18.

835. Id.

836. Thomas Jefferson, V. To the Danbury Baptist Association, 1 January 1802, NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006 (last visited Dec. 2024).

837. Lemon v. Kurtzman, 403 U.S. 602 (1971).

838. Id. at 612–13.

839. Kennedy v. Bremerton, 597 U.S. 507, 534–36 (2022); see also Groff v. DeJoy, 600 U.S. 447, 460 & n.7 (2023) (acknowledging Kennedy’s abrogation of the Lemon test).

840. Kennedy, 597 U.S. at 535–36. But see Firewalker-Fields v. Lee, 58 F.4th 104, 122 & n.8 (4th Cir. 2023) (“Open questions abound [regarding the history-and-tradition test]. What kinds of evidence are relevant? What kinds of evidence are the most useful? Which periods of history are relevant—the era of the Bill of Rights, 1791, or the era of the incorporation of the Bill of Rights, 1868—and which period is most important? This last question might matter a great deal in the Establishment Clause context given the evidence that the understanding of that principle changed significantly between 1791 and 1868. We could go on.” (citations omitted)).

841. Everson v. Board of Education of Ewing Township (1947), NATIONAL CONSTITUTION CENTER [hereinafter NATIONAL CONSTITUTION CENTER], https://constitutioncenter.org/the-constitution/supreme-court-case-library/everson-v-board-of-education-of-ewing-township (last visited Dec. 2024).

842. The framework of these three categories, and some explanations included within these categories, originate with NATIONAL CONSTITUTION CENTER, supra.

843. Id.

844. Id.; e.g., Everson v. Board of Education, 330 U.S. 1 (1947).

845. NATIONAL CONSTITUTION CENTER, supra; e.g., School District of Grand Rapids v. Ball, 473 U.S. 373 (1985), overruled by Agostini v. Felton, 521 U.S. 203, 236 (1997).

846. NATIONAL CONSTITUTION CENTER, supra; e.g., Carson v. Makin, 596 U.S. 767 (2022); Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020).

847. NATIONAL CONSTITUTION CENTER, supra; e.g., Engel v. Vitale, 370 U.S. 421 (1962); School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

848. Lee v. Weisman, 505 U.S. 577 (1992).

849. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

850. Kennedy v. Bremerton School District, 597 U.S. 507, 541–42 (2022).

851. Marsh v. Chambers, 463 U.S. 783 (1983); Town of Greece v. Galloway, 572 U.S. 565 (2014).

852. See Lynch v. Donnelly, 45 U.S. 668 (1984).

853. Kennedy, 597 U.S. at 534.

854. American Legion v. American Humanist Association, 588 U.S. 29, 63–66 (2019).

855. NATIONAL CONSTITUTION CENTER, supra.

856. McCreary County v. ACLU, 545 U.S. 844, 874 (2005); Van Orden v. Perry, 545 U.S. 677, 688–689 (2005) (plurality opinion).

857. NATIONAL CONSTITUTION CENTER, supra (internal quotation marks omitted).

858. US CONSTITUTION amend. 1.

859. Reynolds v. United States, 98 U.S. 145, 166 (1878).

860. Id. at 166–68.

861. Id. at 167.

862. Sherbert v. Verner, 374 U.S. 398 (1963).

863. Id. at 406–08.

864. Id. at 406–07.

865. Wisconsin v. Yoder, 406 U.S. 205 (1972).

866. Id. at 207–12.

867. Id. at 213.

868. Id. at 219, 221–28.

869. Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990).

870. See Fulton v. City of Philadelphia, 593 U.S. 522, 543–44 (2021) (Barrett, J., with Kavanaugh, J., concurring, and with Breyer, J., joining in part) (acknowledging “serious arguments” for overruling Smith but agreeing the facts in Fulton did not trigger Smith); ibid., at 544, 544–618 (Alito, J., with Thomas and Gorsuch, JJ., concurring) (asserting Smith should be overruled and replaced by the compelling state interest test); ibid., at 618, 618–27 (Gorsuch, J., with Thomas and Alito, JJ., concurring) (asserting Smith “committed a constitutional error” that the Court should not have “sidestep[ped]” in Fulton).

871. City of Boerne v. Flores, 521 U.S. 507, 519 (1997) (holding that RFRA attempted to set substantive boundaries of constitutional rights, rather than address specified unconstitutional conduct by states, and in doing so, exceeded Congress’s enforcement power, thus invalidating RFRA as applied to states); Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 423 (2006) (clarifying that RFRA remains applicable to federal government action).

872. See Federal & State RFRA Map, BECKET, https://www.becketlaw.org/research-central/rfra-info-central/map (last visited Dec. 2024); ELIZABETH A. CLARK, BRETT G. SCHARFFS & AMY LYNN ANDRUS, RELIGION AND LAW IN THE UNITED STATES 88–89 (2024).

873. Smith, 494 U.S. at 879.

874. Religious Land Use and Institutionalized Persons Act (RLUIPA), Pub. L. No. 106-274, 114 Stat. 803 (2000) (codified at 42 U.S.C. §§ 2000cc to 2000cc-5 (2024)).

875. DURHAM & SCHARFFS, supra, at 138.