We all know that the U.S. Constitution guarantees us freedom of religion. But, what exactly does the Constitution say about freedom of religion?
Actually, the Constitution proper says nothing about freedom of religion.
However, the first ten amendments to the Constitution – called the Bill of Rights – were ratified just two years after the Constitution itself, in 1791. And the First Amendment covers freedom of religion (as well as freedom of speech and of the press).
The First Amendment includes this: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..”
Note that the First Amendment originally applied only to “Congress,” not to the states. However, in the 20th century the Supreme Court began to apply the Bill of Rights to the states using something called the “incorporation doctrine.”
If you read the First Amendment carefully, you noticed that it contains two distinct clauses dealing with religious liberty. These are known as the “Establishment Clause” and the “Free Exercise Clause.” Let’s take a look at them.
The Establishment Clause is the part that says “Congress shall make no law respecting an establishment of religion.”
Over time, the Establishment Clause has been interpreted as requiring government neutrality in religious matters at both the federal and state levels. Since 1947, the Supreme Court has held that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and non-believers.”
Thus, for example, parents have often sued local schools for favoring prayer or other religious observances. In the 1962 case of Engel v. Vitale, the Supreme Court held that public school teachers may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. Thirty years later, in Lee v. Weisman, the Court also held that schools couldn’t sponsor prayer at a graduation ceremony.
The Establishment Clause has also been used to block religious displays on public property — such as nativity scenes and menorahs.
The Free Exercise Clause
The second aspect of religious freedom in the Bill of Rights is the guarantee that “Congress shall make no law . . . prohibiting the free exercise [of religion].”
Generally, this means that laws cannot force a person to violate a tenet of his or her religion. That is why, for example, the right of conscientious objectors to avoid military service has always been recognized even when a draft was in effect.
But there are limits to free exercise, though. So if you are thinking about establishing a church that does not believe in paying taxes . . . fugetaboutit! In fact, the Supreme Court decided a case called United States v. Lee, which involved an Amish employer’s objection to paying Social Security taxes on religious grounds. The Supreme Court rejected their claim of religious freedom and required them to comply with the law.
However, within these limits, Americans are free to practice their religion.
A recent example of a dispute about the meaning of “free exercise” arises from the Department of Health and Human Services’ rule which requires virtually all employers to provide health insurance that covers contraceptives, as part of the implementation of the Affordable Care Act (ACA). (Actually, this is not a new concept. In fact, 28 states had similar regulations when the ACA was signed. What the regulation does that is new is prohibit insurance companies from passing on part of the charge for this coverage to the patient.)
There is a controversy because some employers – religious organizations – object to having to subsidize birth control since their religion does not believe in it.
A number of lawsuits challenging this regulation are currently pending in federal court and it will be interesting to see how they are decided.
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**These questions and answers are designed to provide helpful information that can be read quickly. They are neither a full explanation of the subject nor legal advice. To learn more, and to receive legal advice on which you can rely, contact me or another lawyer.