Learning Outcomes
This article explores the First Amendment's guarantees concerning religion, applicable to the states via the Fourteenth Amendment. It covers the Free Exercise Clause, prohibiting governmental interference with religious belief and, to a lesser extent, practice, and the Establishment Clause, mandating a separation between church and state. After reading this article, you will be able to distinguish between these clauses, identify the relevant tests used by courts (including strict scrutiny, the Lemon test, and neutrality principles), and apply these doctrines to MBE fact patterns involving government regulation and religion.
MBE Syllabus
For the MBE, you must understand the scope and limitations of the First Amendment's Religion Clauses. You should be prepared to:
- Differentiate between the Free Exercise Clause and the Establishment Clause.
- Analyze government regulations burdening religious conduct under the Free Exercise Clause, applying the appropriate standard of review (strict scrutiny for targeted laws, rational basis for neutral laws of general applicability).
- Identify situations involving the ministerial exception.
- Evaluate government actions under the Establishment Clause using relevant tests (e.g., Lemon, coercion, endorsement, historical practices).
- Analyze the constitutionality of government aid to religious institutions (especially schools).
- Assess the validity of religious activities conducted in public schools.
- Recognize when a law shows impermissible preference for one religion over others or religion over non-religion.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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A state law prohibits the ingestion of peyote for any reason. Members of a specific religious group, whose sincere beliefs require peyote consumption in rituals, challenge the law under the Free Exercise Clause. What is the likely outcome?
- The law is unconstitutional as applied to the group because it burdens a sincere religious practice.
- The law is unconstitutional as applied to the group unless the state shows it is necessary to achieve a compelling interest.
- The law is constitutional because it is a neutral law of general applicability that does not target religion.
- The law is constitutional only if peyote ingestion poses a significant health risk.
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A city council begins its legislative sessions with a brief, non-denominational prayer delivered by various local clergy invited on a rotating basis, open to all faiths present in the city. An attending citizen sues, claiming this practice violates the Establishment Clause. What is the strongest argument for upholding the practice?
- The prayers are non-denominational and do not proselytize.
- The practice is consistent with the long history and tradition of legislative prayer in the country.
- Attendance at the council meetings is voluntary, so there is no coercion.
- The primary effect of the prayers is to solemnize the occasion, not advance religion.
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Under the Lemon test, a government action violates the Establishment Clause if it fails which of the following criteria?
- It must have a secular purpose, its primary effect must neither advance nor inhibit religion, and it must not lead to excessive government entanglement with religion.
- It must be necessary to achieve a compelling government interest and be narrowly tailored.
- It must not coerce religious participation or endorse a particular religion.
- It must be neutral towards religion and generally applicable to all citizens.
Introduction
The First Amendment, applied to the states through the Fourteenth Amendment, contains two clauses addressing religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause generally prohibits the government from establishing a religion, mandating a degree of separation between church and state. The Free Exercise Clause generally prohibits the government from interfering with the free exercise of religion, protecting religious belief absolutely and religious conduct to a lesser degree. These clauses sometimes conflict, requiring courts to address the tension between avoiding establishment and protecting free exercise.
Key Term: Establishment Clause The First Amendment provision prohibiting Congress (and, via the 14th Amendment, the states) from making any law "respecting an establishment of religion."
Key Term: Free Exercise Clause The First Amendment provision prohibiting Congress (and, via the 14th Amendment, the states) from making any law "prohibiting the free exercise" of religion.
The Free Exercise Clause
The Free Exercise Clause protects the freedom to hold religious beliefs and, to some extent, the freedom to act on those beliefs.
Belief vs. Conduct
The freedom to believe is absolutely protected. The government cannot punish someone solely because of their religious beliefs or require them to profess any particular belief.
The freedom to act or engage in religious conduct is not absolutely protected. The government can regulate general conduct, even if the regulation incidentally burdens religious practices, provided the law meets certain standards.
Standard of Review
The standard used to review laws burdening religious conduct depends on whether the law specifically targets religion or is a neutral law of general applicability.
- Laws Targeting Religious Conduct: If a law is specifically designed to interfere with religious practice (i.e., it is not neutral or not generally applicable, but targets religion), it is subject to strict scrutiny. The government must prove the law is necessary to achieve a compelling government interest. Such laws are rarely upheld. [Church of Lukumi Babalu Aye, Inc. v. Hialeah]
- Neutral Laws of General Applicability: If a law regulates conduct generally and does not target religious practice, it is subject only to rational basis review regarding its impact on religion. The Free Exercise Clause does not require religious exemptions from such neutral, generally applicable laws. [Employment Division v. Smith]
Key Term: Neutral Law of General Applicability A law that does not target a specific religion or religious practice and applies broadly to everyone, which is generally subject only to rational basis review even if it incidentally burdens religious exercise.
Worked Example 1.1
A state passes a law requiring all children to be vaccinated against measles before attending public or private school. A parent objects based on sincere religious beliefs opposing vaccination. The parent challenges the law under the Free Exercise Clause, seeking an exemption for their child. Assume the vaccination requirement applies equally to all students regardless of religion. Will the parent likely succeed?
Answer: No. The mandatory vaccination law is a neutral law of general applicability aimed at public health, not targeting religion. Under Employment Division v. Smith, the state does not need to grant a religious exemption. The law needs only a rational basis (protecting public health), which it easily satisfies.
Ministerial Exception
The Religion Clauses create a "ministerial exception" barring most employment-discrimination suits brought by ministers against their religious employers. This prevents secular courts from interfering with a religious group's choice of its ministers. [Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC]
Key Term: Ministerial Exception A constitutionally-grounded rule preventing ministers from suing their religious employers for employment discrimination, based on the Free Exercise and Establishment Clauses.
The Establishment Clause
The Establishment Clause primarily prevents the government from establishing, sponsoring, or financially supporting religion. The Supreme Court has used several tests to evaluate potential violations, and the specific test applied can vary depending on the context.
Primary Tests
- The Lemon Test: Though criticized and not always applied, the Lemon test is still relevant. A government action violates the Establishment Clause unless it:
- Has a secular legislative purpose;
- Its principal or primary effect must be one that neither advances nor inhibits religion; and
- It must not lead to excessive government entanglement with religion. [Lemon v. Kurtzman]
- Endorsement Test: Government action is invalid if it creates a perception in the mind of a reasonable observer that the government is either endorsing or disapproving of religion.
- Coercion Test: Government may not, directly or indirectly, coerce anyone to support or participate in religion or its exercise.
- Historical Practices and Understandings: In some contexts, like legislative prayer, the Court looks to longstanding historical practices to determine constitutionality. [Town of Greece v. Galloway]
Key Term: Lemon Test A three-part test articulated in Lemon v. Kurtzman to evaluate Establishment Clause challenges: requiring a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive government entanglement.
Sect Preference
If a law or government program shows a preference for one religion over others, it will be subject to strict scrutiny and is almost always invalid.
Financial Aid to Religious Institutions
Government financial aid programs benefitting religious institutions (especially schools) are frequently challenged.
- Aid to Colleges and Hospitals: Generally permissible if the aid is for a secular purpose, the aid does not have a primary effect of advancing religion, and there is no excessive entanglement.
- Aid to Religious Grade/High Schools: Subject to closer scrutiny due to the risk of indoctrination.
- Neutral, Indirect Aid: Programs providing aid directly to a broad class of citizens (e.g., parents), who then choose where to spend the aid (including at religious schools), are generally permissible if truly neutral. [Zelman v. Simmons-Harris (school vouchers)].
- Direct Aid: Programs providing direct aid (e.g., funding, materials, teachers) to parochial schools must be carefully structured to ensure the aid only supports secular functions and avoids excessive entanglement. [Agostini v. Felton (allowing public school teachers to provide remedial education at parochial schools)].
Religious Activities in Public Schools
This is a heavily tested area.
- Prayer and Bible Reading: School-sponsored prayer or Bible reading is unconstitutional, even if voluntary or silent. [Engel v. Vitale; Abington School Dist. v. Schempp; Wallace v. Jaffree]. Student-initiated and student-led prayer not endorsed by the school is generally protected private speech.
- Curriculum: Schools cannot prohibit teaching evolution or require teaching "creation science." [Edwards v. Aguillard]. They can teach about religion in a secular context (e.g., history, comparative religion).
- Equal Access: Public schools that allow other non-curricular student groups to use facilities must generally provide equal access to student religious groups. [Good News Club v. Milford Central School].
Worked Example 1.2
A state university provides funding from mandatory student activity fees to various registered student organizations for their publications. The funding guidelines are neutral regarding viewpoint. A registered student religious group applies for funds to publish its magazine discussing religious viewpoints on campus issues. The university denies funding solely because the publication is religious. Does this denial violate the Constitution?
Answer: Yes. This likely violates the Free Speech Clause and potentially the Free Exercise Clause. Because the university created a limited public forum for student speech funded by mandatory fees and distributed funds neutrally, denying funds solely based on the religious viewpoint constitutes viewpoint discrimination. The Establishment Clause does not require this exclusion; providing funds neutrally to religious and non-religious groups alike does not typically constitute establishment. [Rosenberger v. Rector and Visitors of Univ. of Virginia].
Summary
The First Amendment provides dual protection regarding religion. The Free Exercise Clause protects religious belief absolutely and prohibits the government from targeting religious conduct without meeting strict scrutiny. Neutral laws of general applicability, however, need only a rational basis even if they burden religion. The Establishment Clause requires government neutrality towards religion, generally forbidding sponsorship, financial support, or active involvement in religious activity. Various tests (Lemon, endorsement, coercion, history) are used, with outcomes often depending heavily on the specific context, particularly regarding aid to religious schools and religious expression in public schools.
Key Point Checklist
This article has covered the following key knowledge points:
- The First Amendment contains the Establishment Clause and the Free Exercise Clause, applicable to states via the 14th Amendment.
- Free Exercise protects belief absolutely; conduct is protected but subject to regulation.
- Laws targeting religion receive strict scrutiny; neutral laws of general applicability receive rational basis review (Smith rule).
- The Ministerial Exception bars employment discrimination suits by ministers against religious employers.
- Establishment Clause generally requires government neutrality towards religion.
- Key tests include Lemon (secular purpose, primary effect, no excessive entanglement), endorsement, coercion, and historical practice.
- Government action preferring one religion over others triggers strict scrutiny.
- Financial aid to religious schools is complex: neutral, indirect aid (vouchers) is often permissible; direct aid requires safeguards.
- School-sponsored prayer/religious instruction in public schools is generally unconstitutional.
- Public schools allowing non-curricular groups access must generally grant equal access to religious groups.
Key Terms and Concepts
- Establishment Clause
- Free Exercise Clause
- Lemon Test
- Ministerial Exception
- Neutral Law of General Applicability
