3.2 First Amendment: Freedom of Religion 

Provisions of the U.S. Constitution’s Bill of Rights are continually being interpreted to balance the power of government and the civil liberties of individuals. 

Explain the extent to which the Supreme Court’s interpretation of the First and Second Amendments reflects a commitment to individual liberty. 

The interpretation and application of the First Amendment’s establishment and free exercise clauses reflect an ongoing debate over balancing majoritarian religious practice and free exercise, as represented by such cases as:

Engel v. Vitale (1962), which declared school sponsorship of religious activities violates the establishment clause

Wisconsin v. Yoder (1972), which held that compelling Amish students to attend school past the eighth grade violates the free exercise clause

Thomas Jefferson did not directly influence the establishment clause since he was serving as Secretary of State when it was created and ratified. However, he is often connected to it due to a letter he wrote in 1802 while serving as president, addressed to the Baptist Association of Danbury, Connecticut. In this letter, he famously described the First Amendment as creating “a wall of separation between Church & State.” In 1879, the Supreme Court referred to this statement as “almost an authoritative declaration of the scope and effect of the amendment.” Today, many Americans mistakenly believe this phrase is part of the Constitution.

Jefferson's idea of a wall is more complicated than it appears. The First Amendment did not separate church and state at both federal and state levels because the Bill of Rights initially applied only to the federal government. During Jefferson's era, numerous states provided support for religion, with some state constitutions mandating certain religious beliefs for officeholders. For instance, the Massachusetts Constitution of 1780 stated that “good order” relies on “piety, religion, and morality,” and required local governments to facilitate the public worship of God” and support “Protestant teachers of piety, religion, and morality.” It also mandated that all elected officials affirm their belief in Christianity. Therefore, not all leaders during the American founding advocated for a strict separation between church and all forms of government authority.

Additionally, Jefferson's metaphor does not specify how tall the wall should be. While he chose not to make religious proclamations as president, other early presidents did not share this hesitation. For example, in his first year, President George Washington, at Congress's request, called for “a day of public thanksgiving and prayer” for citizens to acknowledge God's providence and seek His favor. Later, during the War of 1812, President Madison proclaimed a day of homage to God.

For many years, Americans generally viewed the wall between church and state as low, leading to official endorsements of religion that would be contentious today. In an 1892 case, the Supreme Court stated, “This is a Christian nation.” In 1947, President Harry Truman wrote to Pope Pius XII, asserting, “This is a Christian Nation,” and praised the early settlers for providing for the practice and support of Christianity.

That same year, in the case of Everson v. Board of Education, the Supreme Court upheld a New Jersey law permitting local governments to reimburse parents for transporting their children to parochial schools. However, the court also ruled that neither state nor federal government could favor one religion over another or provide support to any religion. It concluded that “the First Amendment has erected a wall between church and state, emphasizing that this wall must be kept high and secure, rejecting even the slightest breach.

Five years later, in 1952, the Supreme Court stated that "we are a religious people whose institutions presume a Supreme Being," supporting the practice of allowing public school students to attend religious classes or services during school hours. The majority explained that by promoting religious education, the government acknowledges the spiritual needs of the population and aligns with the country's traditions.

In the 1960s, the federal courts began to implement stricter guidelines regarding the relationship between religion and government. In 1962, during Engel v. Vitale, the Supreme Court declared unconstitutional a nondenominational prayer created by the New York State Board of Regents for public school use. The following year, in Abington School District v. Schempp, the Court ruled against the practice of starting school days with Bible readings and the Lord’s Prayer.

In 1971, the Court established a three-part guideline known as the Lemon test for cases involving the establishment clause. According to this test, a law that seems to support or endorse religion can only survive scrutiny if it serves a secular purpose, does not advance or inhibit religion as its primary effect, and does not lead to excessive government involvement with religion. While the test is straightforward, it can be challenging to apply, and the Court has not consistently used it. Its overall impact has been to limit the official endorsement of religion.

For instance, in 1992, the Court decided in Lee v. Weisman that a public middle school's graduation ceremony should not include prayers from clergy, stating that attendance and participation in a religious exercise at such an important event was effectively compelled by the state. Later, in 2000, the Court ruled in Santa Fe Independent School District v. Doe against a policy in Santa Fe, Texas, that allowed high school students to vote on whether to have a prayer or message before football games. In the Santa Fe case, Justice John Paul Stevens noted that a pregame prayer could pressure attendees to engage in religious worship. Chief Justice William Rehnquist, dissenting, criticized the majority for misinterpreting past rulings and accused them of being adversarial toward religion in public life, reminding that the same Congress responsible for the Bill of Rights had asked President Washington to proclaim a national day of thanksgiving to God.

The Court established that public schools cannot officially endorse religion, but there have been significant rulings on related issues. In 1995, it decided that the University of Virginia, a public institution, could not refuse financial support to a student-run religious newspaper funded by mandatory student fees. In 2001, it ruled that a public school must allow a private Christian group to hold after-school meetings if other groups were permitted to use the facilities. Both of these cases involved the establishment clause and First Amendment free speech rights. In 2002, the Court permitted Ohio to provide tuition vouchers for high school students in Cleveland to attend religiously affiliated private schools.

However, in 2010, the Court made a controversial 5-4 decision allowing Hastings College of Law, part of the University of California, to enforce a policy that required all recognized student groups to accept any member. This meant that a Christian group demanding its members to sign a statement of faith could not receive official recognition. The majority argued that this policy was a fair and neutral rule for student groups, while dissenters contended that it was designed to exclude the Christian group and discriminated against unpopular views.

In 2012, Vanderbilt University faced a similar situation when it denied official recognition to religious groups that restricted membership based on beliefs. However, since Vanderbilt is a private university, this issue did not raise constitutional questions, unlike the Hastings case. Private institutions generally can impose restrictions on speech or religious practices as long as they do not violate anti-discrimination laws.

In 2002, a federal appeals court in San Francisco drew attention by ruling that the phrase “under God” in the Pledge of Allegiance constituted an unconstitutional establishment of religion in public schools. The U.S. Supreme Court reversed this ruling in 2004 on technical grounds. The case returned to the appeals court six years later, which ruled there was no breach of the establishment clause.

This raises the question of when the government can recognize or promote belief in God. Although the Supreme Court has insisted that public schools refrain from such endorsements to protect young minds, this prohibition does not apply to all government actions. Legal scholar Stephen Carter emphasizes that the establishment clause is meant to restrict government actions, not to limit church activities. Nothing in the Constitution stops citizens, like abolitionists in the nineteenth century and civil rights advocates in the twentieth, from making political choices based on their religious beliefs. History showcases numerous instances of Americans advocating for social change fueled by strong religious convictions.

In 2000, a federal court addressed an important issue when loggers took legal action against the U.S. Forest Service and two environmental organizations. The loggers claimed that restrictions on timber sales were influenced by religious environmentalists, which they argued violated the principle of separation of church and state. The judge dismissed the case, stating that the right to petition is not limited to those whose motivations are purely secular. The judge emphasized that freedom of belief is an active right, allowing citizens to engage in actions based on their political, moral, and religious convictions to bring about change.

The First Amendment clearly states that Congress cannot prevent “the free exercise” of religion. Initially, this was understood to mean that the federal government could not interfere with religious beliefs and practices. However, issues arise when those beliefs lead to actions that conflict with generally applicable laws. The first significant case on this topic was Reynolds v. U.S. in 1879. George Reynolds was convicted of polygamy in Utah under federal law and argued that his religious obligations as a member of the Mormon Church required him to practice polygamy. The Supreme Court upheld his conviction, highlighting the distinction between belief and action. While individuals can hold any beliefs they choose, they are not exempt from laws governing personal conduct.

In subsequent cases, the Court maintained this distinction, upholding mandatory vaccination laws against religious objections in 1905, allowing the military to prevent an Orthodox Jewish psychologist from wearing a yarmulke while on duty in 1986, and confirming Oregon's right to deny unemployment benefits to those fired for using peyote in Native American rituals in 1990. However, in some cases, the Court applied a balancing test, weighing the importance of government policies against the burden they impose on religious practices. In 1963, the Court reversed a South Carolina decision that denied unemployment benefits to a Seventh-Day Adventist who refused work on Saturdays. In 1972, it ruled that Wisconsin's requirement for all children to attend school until age 16 conflicted with Amish beliefs about education beyond the eighth grade, which they argued endangered their spiritual well-being. In 1993, the Court also overturned a Hialeah, Florida ordinance that banned animal sacrifices in Santeria rituals.

The 1990 ruling in Employment Division v. Smith was particularly controversial as it rejected the recent balancing test in favor of the earlier belief-conduct distinction established in Reynolds v. U.S. Justice Antonin Scalia, writing for the majority, insisted that personal religious beliefs cannot exempt individuals from complying with valid laws addressing conduct regulated by the state.

In 1993, Congress reacted to a divisive court ruling by enacting the Religious Freedom Restoration Act (RFRA). This law made it illegal for the government to significantly hinder a person's religious practice, even if the hindrance came from a generally applicable rule. The only way such a burden could be justified was if it advanced a compelling government interest and was the least restrictive option available. In 1997, the Supreme Court invalidated RFRA's application to the states, stating that Congress could not use legislation to broaden the constitutional right to freely exercise religion. However, in 2006, the Court upheld RFRA in cases involving the federal government by overturning a decision made by U.S. Customs agents who seized 30 gallons of hallucinogenic tea from the Amazon. This tea was intended for a Brazilian church in New Mexico that used it in its religious ceremonies. A lower federal court had determined that the government failed to prove a compelling interest in preventing the tea's importation, and the Supreme Court concurred.

In early 2012, the Supreme Court unanimously ruled against the executive branch, stating that employment discrimination laws could not restrict a religious organization's right to hire or fire ministers, even when those ministers primarily taught secular subjects. Controversy arose when the Obama administration issued a mandate requiring religiously affiliated organizations, like hospitals and schools, to include birth control and sterilization procedures in their health insurance plans without extra charges. This mandate faced strong opposition from American Catholic bishops, who argued that it forced religious groups to fund activities they deemed immoral, including certain drugs that could induce abortion. They believed this rule violated their First Amendment rights to freely practice their religion. Although a revised plan that shifted the funding responsibility to insurance companies satisfied some leaders within Catholic health care, it did not alleviate the bishops' concerns. This dispute raised a significant question: Is the concept of "free exercise of religion" broader than merely allowing worship? If it is, what other activities does it protect beyond the freedom to worship in various places of faith?