5.3: Religion

The first right named in the Bill of Rights is freedom of religion. By the time the First Amendment was ratified in 1791, the United States was already a religiously diverse nation, populated with the descendants of Catholics, Jews, Puritans, and Quakers who had fled religious persecution elsewhere. These groups endured the hardships, risks, and sacrifices of transatlantic travel because the ability to live according to their faith was profoundly important. (For some, it was literally the difference between heaven and hell!) Thus, the right to worship or not worship as one pleases was then — and remains today — one of America’s most precious civil liberties.

The First Amendment contains two distinct protections of the freedom of religion, as indicated by its opening statement: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” The first protection is the establishment clause, which prevents the government from establishing an official religion (such as those that exist today in countries like Costa Rica, Norway, and Saudi Arabia) or extending special legal privileges to practitioners of certain religions. The second protection is the free exercise clause, which prevents the government from interfering with citizens’ religious practices, either by denying them the right to do things required by their religion (which happens today in countries like China, Iran, and Sudan) or by forcing them to do things forbidden by their religion.

Together, these two clauses form what Thomas Jefferson referred to as “a wall of separation between Church and State” in America. However, this separation is not absolute. Two centuries of Supreme Court jurisprudence has determined that the government can interact with religious organizations and pass laws limiting religious practices in certain circumstances.

Since Lemon v. Kurtzman in 1971, the Supreme Court has applied the Lemon test to cases involving the establishment clause. According to the Lemon test, a government action does not violate the establishment clause as long as it has a secular (non-religious) purpose, has a primary effect other than to advance or inhibit religion, and does not create an excessive government entanglement with religion. These criteria allow the government to print the United States’ official motto — IN GOD WE TRUST — on all American currency and to display Judeo-Christian motifs such as the Ten Commandments and Nativity scenes on public property (under certain conditions). These actions, while religious in nature, are symbolic in a way that does not constitute excessively favorable treatment of a particular religion. Governments can also offer grants to religious schools, hospitals, and other institutions without violating the establishment clause, provided they make those same grants available to secular institutions.

With regard to the free exercise clause, the Supreme Court has ruled that the government can pass laws which limit certain religious practices, so long as those limitations are not the target of or motivation for the laws. This exception prevents Americans from using religion as a “Get Out of Jail Free” card for any illegal action they wish to commit, such as drug use (as the court decided in Employment Division v. Smith in 1990) or ritualistic human sacrifice. Laws against these practices have been passed for reasons of social order rather than religious persecution, and are therefore constitutional.

The Ground Zero Cross, a steel cruciform extracted from the rubble of the World Trade Center and now displayed at the National September 11 Memorial, has been found not to violate the establishment clause due to its historical nature and status as a “symbol of hope.”