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Freedom of Religion

11. What are the “Establishment Clause” and “Free Exercise Clauses”?

The freedom of religion portion of the 1st Amendment is made up of the Establishment Clause and the Free Exercise Clause.

Establishment Clause

The 1st Amendment states that, “Congress shall make no law respecting an establishment of religion” or “prohibiting the free exercise thereof.” The first provision of this clause is known as the “Establishment Clause”. It stands for the principle that the government should not force any particular religion(s) onto its citizens.

  • Discussion: Historically, why did the Framers seek to prohibit the Government from establishing a state religion? How has this clause been interpreted with regard to government actions and religious activity?

Free Exercise Clause

The second provision of the 1st Amendment addressing religion is known as the “Free Exercise Clause”. It provides that the government cannot prohibit individuals from practicing any religion. The Free Exercise Clause has been the subject of significant litigation charging the government with discriminating against individuals’ religious practices. The common law test for determining whether a government statute runs afoul of the Free Exercise Clause by unduly restricting the free exercise of religion is as follows:

  • Secular Purpose: Does the statute or government action affecting religion have a secular (non-religious) purpose? If the purpose of the statute or government action is to somehow promote any single or particular group of religions, the statute is unconstitutional. If the purpose of the statute or government action is not to promote religion, then move onto the next step.
    • Example: If a government allows a manger scene on government property during Christmas and denies citizens the right to put a menorah or minaret, this action would not have a secular purpose.
  • Discussion: Can you think of any examples of government action that have been challenged as effectively promoting a particular religious practice?
  • Primary Effect: Is the primary effect of the statute or government action to advance or inhibit religion? Even if the purpose of the statute or action is secular, it may violate the Establishment Clause if the primary effect is to somehow advance or inhibit a religion among the citizens. The word “primary” is of particular importance. It leaves room for statutes or actions that only incidentally promote a particular religion. If the primary effect is something other than advancing or inhibiting religion, move on to the next step.
  • Discussion: Can you think of any examples of laws or government actions that have a purpose other than promoting a religion, but do have an incidental effect of promoting a religious practice?
  • Excessive Entanglement: Does the statute cause excessive government entanglement with religion? Even if the statute only has a secondary effect upon religion, it may still result in too much government involvement with religious practice to comply with the Establishment Clause. This is a floating standard that greatly depends on the specific law and how it affects religious practice.
  • Discussion: How do you feel about allowing a court this level of autonomy for determining when a statute or government action is simply too closely related to religious activity?

If a law or government action violates any one of the above elements, it is an unconstitutional infringement of the 1st Amendment’s religious protections.

  • Discussion: Do you think that the government should pass laws that have an effect on any single religion? Can you think of any examples of a law that has a secular purpose but has an effect of promoting a religion? How would you measure whether an effect on promoting religion is strong enough to be considered a primary effect? At what point do you think government influence on religious practice becomes excessive entanglement?
  • Practice Question: Mary is the mayor of Small Town, Texas. She is a Christian and believes that everyone else in the world should be as well. She proposes a resolution to the city council to make Christianity the official religion of Small Town. As part of her proposal, she lays out a plan to convert part of the city hall into a sanctuary to hold Christian services on Sunday. What are the Constitutional issues implicated by these proposals?

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