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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.
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?
- 1)The framers believed that any government interventions in the religious affairs of citizens would necessarily infringe on their religious freedom. 2) The establishment of religion clause of the First Amendment means at least neither a state nor the federal government can set up a church. Neither can press laws which aid one religion, aid all religions or prefer one religion to another. According to Jefferson (First Amendment) clause against establishment of religion by a law intended to erect a wall of separation between church and state……… The wall must be kept high and impregnable.
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. Established in Lemon v. Kurtzman, 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? What about discriminating?
- In Lund vs Rown County, NC, the 4th Circuit Court of Appeals limited the ability of County Commissioners to open meetings with Christian prayer the prothelatyzed to attendees. In Employment Division v Smith, the US Supreme Court held that the local government could fire an employee for smoking Peyote as part of a religious ceremony. Per the court, a state may accommodate a religious practice, but it is not required to do so.
- 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?
- Recently in Maryland-National Capital Park and Planning Commission v. American Humanist Association, the US Supreme Court held in a 5-2 decision that allowing a war memorial that is shaped as he Latin Cross, (Christian cross) does not have the effect of promoting one religion above another.
- 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.
- Example: In Tilton v. Richardson (1971) the Supreme Court held that providing one-time grants to religious colleges and universities to build facilities did not violate the Establishment Clause, as there was not excessive entanglement with religion.
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?
- Your argument may focus on judicial autonomy and theories of judicial activism or restraint. Many would argue that the government allowing for open prayer in public meetings where the individuals delivering the prayer are exclusively Christians would unduly promote Christianity above other religions.
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?
- Adopting Mary’s proposal would be a violation of the 1st amendment of the Constitution. The Establishment Clause directs that the government should not favor one religion over the other. This proposal has the specific purpose of promoting religion, which fails the common law test. Opening up a Government facility to religious-related activity would be okay, if it is non-specific in the religion. The question would be whether opening up the facility to this type of service would be excessive entanglement with religious practice.
Esbeck, Carl H., The Establishment Clause as a Structural Restraint on Governmental Power. Iowa Law Review, Vol. 84, pp. 1-113, 1998. Available at SSRN: https://ssrn.com/abstract=186692
Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008. Available at SSRN: https://ssrn.com/abstract=1150780
Esbeck, Carl H., When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court’s Analysis. West Virginia Law Review, Vol. 110, p.359, 2007; University of Missouri School of Law Legal Studies Research Paper No. 2007-09. Available at SSRN: https://ssrn.com/abstract=992885
Corbin, Caroline Mala, Intentional Discrimination in Establishment Clause Jurisprudence (March 27, 2015). Alabama Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2585220
Garry, Patrick M., Coordinating the Exercise and Establishment Clauses: A Narrow Establishment Clause Test for Government Funding of Prisoner Rehabilitation Services by Religious Providers (June 30, 2008). Ave Maria Law Review 387, Vol. 6, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1153474
Garry, Patrick M., The Democratic Aspect of the Establishment Clause: A Refutation of the Argument that the Clause Serves to Protect Religious or Nonreligious Minorities. Mercer Law Review, Vol. 59, No. 2, 2008. Available at SSRN: https://ssrn.com/abstract=1130303
Huigens, Kyron, Science, Freedom of Conscience and the Establishment Clause (1989). 13 U. Puget Sound L. Rev. 356 (1989).. Available at SSRN: https://ssrn.com/abstract=3055866
Chapman, Nathan S., The Establishment Clause, State Action, and Town of Greece (February 15, 2016). William & Mary Bill of Rights, Vol. 24, 2015; UGA Legal Studies Research Paper No. 2016-06. Available at SSRN: https://ssrn.com/abstract=2732794