5.4: 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 religiously diverse, populated with the descendants of Catholics, Jews, Puritans, and Quakers who had fled religious persecution. 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.) 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 protects freedom of religion in two ways, 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 but not others. 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 called “a wall of separation between Church and State.” 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 restricting religious practices in limited circumstances.

The application of the establishment clause has evolved over time. The 1971 Supreme Court case Lemon v. Kurtzman resulted in the creation of the Lemon test. According to this test, government actions did not violate the establishment clause as long as they had secular (non-religious) purposes, had a primary effect other than advancing or inhibiting religion, and did not excessively “entangle” the government with religion. Although it was modified and simplified in subsequent cases, the Lemon test gradually fell out of favor for being both difficult to apply and an incorrect interpretation of the First Amendment. In 2022, the court ruled in Kennedy v. Bremerton that establishment clause disputes should instead be decided based on America’s “historical practices and understandings.” A year later, the court officially abandoned the Lemon test in Groff v. DeJoy.

With regard to the free exercise clause, the Supreme Court has ruled that the government can 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 determined in Employment Division v. Smith in 1990) or ritualistic human sacrifice. Laws against these practices exist 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.”