The First Amendment: Freedom of Religion

The First Amendment enumerates what many Americans consider to be their basic civil liberties: freedom of religion, speech, and the press, as well as the right to peaceful assembly and to petition the government for the redress of grievances. Exactly what constitutes freedom of religion and freedom of speech are matters that have come before the courts many times.

The framers of the Constitution saw religion as a matter of choice. Unlike many countries, the United States does not have an official or state religion. Indeed, the First Amendment specifically states, "Congress shall make no law respecting an establishment of religion. . . ." Nevertheless, questions on tax exemptions for religious organizations and on whether public schools should have prayer or Christmas pageants have raised thorny problems for the courts to consider.

"Wall of separation" versus government accommodation

Thomas Jefferson believed a "wall of separation" should exist between government and religion, which meant maintaining a strict separation between church and state. Those who, instead, favor government accommodation argue that government can assist religion if that assistance is given in a neutral manner so that it does not favor one religious group over another or favor religious groups in general over other groups. Both schools of thought have swayed the Supreme Court in the 20th century. Searching for a middle ground, the Court devised the Lemon test, based on the 1971 case Lemon v. Kurtzman that concerned the use of public money for a parochial school. The Court held that, to be constitutional, any law has to have a secular purpose, the purpose can neither advance nor inhibit religion, and the law cannot excessively entangle government with religion. Since 1971, the Lemon test has been applied in a wide variety of cases, and although few justices endorse the doctrine unambiguously, no majority has ever come together to do more than tinker with it. As the Court has grown more conservative, its decisions have tended more toward the position of government accommodation. The Supreme Court upheld school voucher programs that allow students to use public funds to attend the schools of their choice, including parochial (religiously affiliated) schools.

Free exercise of religion

The Constitution does more than forbid "establishment" of a religion. It also guarantees that individuals will enjoy "free exercise" of their own religious beliefs. This guarantee creates a rather difficult situation, though. Policies that work too hard to accommodate the free exercise of religious beliefs stray dangerously close to establishing religion. Policies that force a sharp division between public life and private morality, on the other hand, hamper the exercise of deeply held beliefs. The Supreme Court has worked hard to formulate a constitutional doctrine that avoids either of these pitfalls, but the path is a perilous one. Current Court doctrine protects the free exercise of religion from laws that are not neutral toward a faith, such as laws banning animal sacrifice targeted at a particular religious organization. But general criminal laws, intended to promote a real governmental interest, cannot be invalidated simply because they happen to hinder the pursuit of a particular religious practice. For example, religious beliefs declaring a particular controlled substance sacred are not sufficient to exempt someone from neutral drug laws. Those who felt the Supreme Court went too far in regulating religion passed the Religious Freedom Restoration Act in 1993. It required government at all levels to "accommodate" religious practice unless there was a compelling reason not to do so; if deemed necessary, only the "least restrictive" action was warranted. The legislation was declared unconstitutional.

The list of religious issues that have come before the Supreme Court seems endless in its complexity. There are religious groups who refuse immunizations or medical help for serious illnesses and religious ceremonies in which animals are sacrificed or mind-altering drugs are used. The violations of the restrictions on prayer in the public schools are numerous. The Court has supported religious freedom and recognizes that a "wall of separation" is just too difficult to enforce.