Part II | Outline

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.

• 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 . . . .” While the broad outlines of the Clause may be understood, its specific applications have long been debated.

• Separation vs. accommodation. In Everson v. Board of Education (1947). The Court 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.”

• Lemon test. In Lemon v. Kurtzman (1971), the Supreme Court formulated a three-pronged test to determine if government action complies with the Free Exercise 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.

• History and tradition test. The Supreme Court has since explicitly abandoned the Lemon test and replaced with a new “history and tradition” test, requiring courts to determine whether a law or government action violates the Establishment Clause “by reference to historical practices and understandings . . . . of the Founding Fathers.”

• Custom interpretive “tests” apply in specific recurrent areas of Establishment Clause–related controversy:

  • Government funds to religious institutions. Under the Establishment Clause, government must be neutral between religious and non-religious institutions that provide education or other social services.
  • Government-sponsored prayer generally comports with the Establishment Clause in contexts involving 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).
  • Government-sponsored religious symbols. The “history and tradition” test now applies in challenges to displays of religious symbols on public property or in public spaces.

Free Exercise Clause  

• The First Amendment’s Free Exercise Clause establishes that “Congress shall make no law . . . prohibiting the free exercise [of religion] . . . .” The Supreme Court has interpreted the Clause to allow some government limitations on religious exercise.

• Belief/action dichotomy. In Reynolds v. United States (1878), the Supreme Court introduced the “belief/action dichotomy,” a doctrine that admits absolute protection of religious beliefs, while allowing for some government restrictions on actions motivated by those beliefs.

• Compelling state interest test. In Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), the Supreme Court applied the compelling state interest test to determine if government action complies with the Free Exercise Clause. That three-pronged 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.

• 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 decision Employment Division v. Smith (1990), which held that neutral and generally applicable laws that burden religious exercise do not violate the Free Exercise Clause.

• Religious Freedom Restoration Acts and RLUIPA  

  • In response to Smith, the U.S. Congress enacted the Religious Freedom Restoration Act (RFRA, 1993). RFRA legislatively reinstated application of Sherbert’s and Yoder’s “compelling state interest” standard to government restrictions that impose a substantial burden 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.
  • In response to City of Boerne, most state governments have enacted their own RFRA laws or have otherwise established RFRA-like protections.
  • In states without RFRA-like protections, the Smith standard still applies to the federal government’s restrictions on free exercise.
  • In 2000, the U.S. Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), which 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.