Chapter 15

FREEDOM OF RELIGION

Here are the key concepts involving “freedom of religion”:

• Two clauses: There are two distinct clauses in the First Amendment pertaining to religion:
  • Establishment Clause: First, there is the Establishment Clause. That clause prohibits any law “respecting an establishment of religion.” The main purpose of the Establishment Clause is to prevent government from endorsing or supporting religion.
  • Free Exercise Clause: The second clause is the Free Exercise Clause. That clause bars any law “prohibiting the free exercise of religion.” The main purpose of the Free Exercise Clause is to prevent government from outlawing or seriously burdening a person’s pursuit of whatever religion (and whatever religious practices) she chooses.
• Applicable to states: Both religious clauses, by their terms, apply only to action taken by Congress. However, both clauses are interpreted to apply also to the states, by means of the Fourteenth Amendment’s Due Process Clause.
• Establishment Clause: The purpose of the Establishment Clause is to put a wall between church and state. Mainly, this means that government must stay out of the business of religion. (Example: Government can’t intentionally prefer one religion over another religion.)
  • Three-part test: Government action that has some relationship to religion will violate the Establishment Clause unless it satisfies all three parts of the following test:
    • Purpose: First, the government action must have a secular legislative purpose.
    • Effect: Second, the government action’s principal or primary effect must not be to advance religion. (But incidental effects helpful to religion do not violate this prong.)
    • Entanglement: Finally, the governmental action must not foster an excessive government entanglement with religion.
• The Free Exercise Clause generally: Under the Free Exercise Clause, the government is barred from making any law “prohibiting the free exercise” of religion. The Free Exercise Clause prevents the government from getting in the way of people’s ability to practice their religions.
  • Includes conduct: The Free Exercise Clause prevents the government from unduly burdening both a person’s abstract “beliefs” as well as a person’s religiously-oriented conduct. Most real-world problems relate to regulation affecting conduct.
    • Non-religious objectives: Free exercise problems most typically arise when government, acting in pursuit of non-religious objectives, either: (1) forbids or burdens conduct which happens to be required by someone’s religious beliefs; or (2) conversely, compels or encourages conduct which happens to be forbidden by someone’s religious beliefs.