6.4: The Law and Politics of Religious Freedom

“Man has turned his back on God. We have sinned against Him and we need to ask for God’s forgiveness. . . This pandemic — this is a result of a fallen world, a world that has turned its back on God.”

—Franklin Graham ⁽¹⁾

Historical Perspective

On first glance, the words of the First Amendment appear to be clear: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” However, it’s difficult to understand what the legal status of religion is in the United States, particularly when it clashes with other values such as civil rights.

The United States has a long tradition of people fleeing religious persecution. Some of the groups moved rather quickly to establish their own “official” religions or to set up theocracies. For example, Salem minister Roger Williams was an early colonial political and religious leader who advocated the separation of church and state and established the U.S.’s first Baptist church. Generally, the country has a long tradition of opposing religious intolerance. Indeed, Thomas Jefferson advocated for a “wall of separation” between church and state. The nation also has a long tradition of invoking God’s blessing and making other religious displays at public events. Simultaneously, citizens have embraced science and empiricism. Reconciling these often-conflicting traditions has not been easy.

Establishment and Free Exercise of Religion

The First Amendment’s treatment of religion occurs through two phrases

• establishment clause, which restricts Congress’ ability to legislate regarding “an establishment of religion.”
• free exercise clause, found in the phrase, “or prohibiting the free exercise thereof,”

When taken together... Clearly, the founders did not want the United States to become a country like England and its Church of England, with an established official religion. Interestingly, the only time religion is mentioned in the Constitution, is when it says, “No religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In other words, the government is forbidden from requiring that elected or appointed leaders be from a particular religion or even that they believe in God.

An important milestone in how the Constitution interpreted the establishment clause developed in Lemon v. Kurtzman (1971). Rhode Island was subsidizing private religious schools for money spent on teacher salaries, and Pennsylvania was reimbursing it. In both states, these provisions were part of larger, general state statutes that supported elementary and secondary education. The Court struck down these practices as a violation of the establishment clause. And in doing so, it set forth the Lemon Test for government laws concerning religious organizations:

1. The statute “must have a secular legislative purpose.”
2. Its “principal or primary effect must be one that neither advances nor inhibits religion.”
3. It must not foster “an excessive government entanglement with religion.” ⁽²⁾

Beyond this, the Supreme Court has generally ruled that the government

• should not show a preference for a particular religion
• not support the propagation of religion
• not endorse religious symbols on public facilities unless all other kinds of expression are also supported or unless there is a secular justification for the symbols.

The Court has also allowed “incidental” religious displays on public property, such as in God We Trust” on the nation's currency. The court has allowed tax dollars to support students going to religiously affiliated colleges and universities, as well as to support some aspects of elementary and secondary religious school attendance, such as purchasing books and tests and providing transportation.

George Reynolds in 1909

In other areas, the Court has allowed government to restrict religion in some instances. In Reynolds v. United States (1878), the Court upheld a federal law banning polygamy, even though George Reynolds was married to more than one wife because it accorded with his religious beliefs. Through this case, the Court made the distinction between religious beliefs, which the government could not regulate, and religious practices, which the government could regulate.

More recently, the Court ruled in Goldman v. Weinberger (1986) that an Orthodox Jew in the Air Force could be prohibited from wearing a yarmulke. Finally, in Employment Division v. Smith (1990), the Court ruled against Native Americans who had been fired and denied state unemployment benefits because they used peyote as part of an off-duty religious ceremony. However, in West Virginia State Board of Education v. Barnette (1943), the Court ruled that a compulsory flag salute law violated the religious rights of Jehovah’s Witnesses, whose religious practices prohibit them from worshipping graven images. Finally, in Wisconsin v. Yoder (1972), the justices ruled that because of Amish religious beliefs, they were not bound by state compulsory school attendance laws.

In 1993, Congress passed the Religious Freedom Restoration Act (RFRA), which prohibited state and federal governments from limiting a person from exercising their religion unless it was in the government’s compelling interest to do so and unless the regulation is the least restrictive way to achieve the government interest. In 1997, the Supreme Court struck down part of the RFRA as intruding too greatly on state powers. The case involved the Catholic Archdiocese in San Antonio Boerne, Texas, which wanted to expand a 1920s-era church building. The town of Boerne denied the building permit based on a local ordinance forbidding construction on historic district buildings. The Court sided with the town. ⁽³⁾ In response, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000, which gives religious organizations special land-use considerations.

The Supreme Court’s conservative majority has looked very favorably on religious expression, even when it conflicts with other values. Consider the Court’s recent decisions:

• Since Missouri funds playground construction and maintenance at public schools, it must also fund playground construction and maintenance at church schools as well. ⁽⁵⁾
• The Colorado Civil Rights Commission displayed bias against religion in its treatment of a wedding cake baker who refused on religious grounds to bake and decorate a cake for a same-sex wedding. ⁽⁶⁾
• The religious owners of privately held companies can be exempt from the Affordable Care Act mandate that their health insurance cover contraception for their employees. ⁽⁷⁾
• Stores cannot have dress codes that forbid employees from wearing any kind of head scarf because it would discriminate against employees who wear head scarves for religious reasons. ⁽⁸⁾
• Governments can own and maintain religious statues on public land—in this case a cross commemorating soldiers who died in World War I—if they have existed for a long time and if their display serves secular purposes as well as religious ones. ⁽⁹⁾

And yet the Court also ruled that. . .

• A Muslim death row inmate could not have an imam present when he was given lethal injection, even though Alabama routinely allows Christians in that situation to have clergy with them. ⁽¹⁰⁾
• President Trump’s travel-ban that was clearly motivated by anti-Muslim animus does not violate the establishment clause if it is officially justified on national security grounds. ⁽¹¹⁾

Religion in Public Schools

The First Amendment’s establishment clause and the free exercise clause intersect is the vexing problem of religion in public schools. In the 1960s, the Court limited some religious expression that could legally occur in public schools. For example, in Engel v. Vitale (1962), the Court struck down a New York law that required students to recite daily the following prayer: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country.” Despite the fact that the prayer was nondenominational and that students with permission from parents could opt out of reciting the prayer, the Court ruled that the practice constituted an establishment of religion.

On June 27, 2022, in Kennedy v Bremerton School District, the Supreme Court ruled 6-3 that a Washington state public high school football coach had a right to pray on the field with students, declaring that such activity is protected under the Constitution because it counts as free speech. It's important to note that this case is not connected to Engel v. Vitale.

Progressives and conservatives alike have grossly distorted court decisions for their own political reasons. Some on the far left have argued that the Court has banned prayer from public schools. Similarly, some on the far right have argued that the Court has indeed banned prayer from public schools. The Supreme Court has not banned prayer or other religious expressions from public schools. This table delineates the forms of religious expression that are and are not allowed in public schools. ⁽¹³⁾

Students in Public Schools Can:

Students in Public Schools Cannot:

Pray any time they want, so long as it is not disruptive. Observe a moment of silence and be asked to observe a moment of silence. Express their religious beliefs in homework or other course assignments, if such expression fits the assignment. Form and join religious clubs at school. Proselytize fellow students in a non-harassing manner. Distribute religious literature to the same extent as they are allowed to distribute other literature. Express their religious beliefs orally in class where appropriate. Wear religious clothing or jewelry. Bring religious texts to school and read them openly when appropriate. Take courses about religion—e.g., comparative religion; the Bible as literature. Be excused from religiously objectionable lessons with parental approval. Pray or invoke God in a graduation speech of their own composition. Receive public tax revenue vouchers to attend public or private schools, even religious schools.

Be asked to recite a prayer by school officials. Be asked to observe a moment of silence, the purpose of which is explicitly to pray. Use the school PA system to recite their personal prayer. Disrupt the classroom or other school routines with their prayer. Be proselytized by school officials. Proselytize fellow students in a harassing manner. Be forced to listen to a broadcast prayer at after-school functions such as football games.

References

1. Cheryl K. Chumley, “Franklin Graham on Coronavirus Crisis: ‘Man Has Turned His Back on God.’” Washington Times. April 6, 2020.
2. Lemon v. Kurtzman(1971).
3. City of Boerne v. Flores(1997).
4. Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006).
5. Trinity Lutheran Church of Columbia v. Comer(2017).
6. Masterpiece Cakeshop v. Colorado Civil Rights Commission(2018).
7. Burwell v. Hobby Lobby, Inc.(2014).
8. EEOC v. Abercrombie and Fitch Stores, Inc. (2015).
9. American Legion v. American Humanist Association(2019).
10. Jefferson S. Dunn, Commissioner, Alabama Department of Corrections v. Domineque Hakim Marcelle Ray(2019).
11. Trump v Hawaii(2018).
12. Susan Jacoby, The Age of American Unreason. New York: Pantheon Books, 2008. Page 184.
13. Developed from: American Jewish Congress, et al,, “Religion in Public Schools: A Joint Statement of Current Law.” April, 1995. No Author, “Religion in the Curriculum,” Anti-Defamation League. No Date. Washington Office of Superintendent of Public Instruction, “Students’ Rights: Religion and Religious Practice,” No date.

Media Attributions

• George Reynolds © Published by 'Young Men's Mutual Improvement Association' is licensed under a Public Domain license