“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” So begins the First Amendment to the U.S. Constitution. Although it has several different protections, the First Amendment has two that address religious freedom specifically—the Establishment Clause and the Free Exercise Clause.
The Framers understood the need for religious freedom. Themselves students of history, they knew that government entanglement with religion leads to religious persecution and social instability. For that reason, they wanted a government that would remain neutral towards religion—one in which all were free to choose their own religious beliefs.
If you have witnessed a First Amendment violation, contact the Ohio civil rights lawyers at Bolek Besser Glesius.
Establishment Clause Overview
One of the First Amendment’s two religious freedom guarantees is the Establishment Clause. It prohibits government from establishing an official religion. But it also requires that government be neutral towards religion. That means government cannot favor one religion over another. This is the “clearest command of the Establishment Clause. . . .” Larson v. Valente, 456 U.S. 228, 244 (1982). More than that though, the Establishment Clause forbids government from favoring believers over nonbelievers.
Whether government has violated the Establishment Clause is often a complex question of constitutional law. Some of the boundaries are clear though. In Everson v. Board of Education, 330 U.S. 1 (1947), the Supreme Court held that the Establishment Clause, at a minimum, forbids government from:
- Setting up a church;
- Passing laws that aid one religion or that prefer one religion over another;
- Forcing or influencing anyone to attend or stay away from church;
- Forcing of influencing anyone to profess a belief or disbelief in any religion; or,
- Punishing anyone for their religious beliefs.
The “establishment of religion” clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. Everson v. Board of Education, 330 U.S. 1 (1947).
Over the years, courts have used different tests in Establishment Clause cases, depending on context. The most common (and perhaps most controversial) comes from Lemon v. Kurtzman, 403 U.S. 602 (1971). Known as the Lemon test, it asks whether a challenged government action: (1) has a secular purpose; (2) has a primary effect that neither advances nor hinders religion; or, (3) fosters “excessive entanglement” within religion. A government regulation that runs afoul of any of the three violates the Establishment Clause.
Establishment Clause violations arise in any number of ways. Some examples include school prayer, government displays of religious symbols, and the use of public money to directly or indirectly benefit a religious organization. The best way to determine whether the government has violated the Establishment Clause is by consulting an Ohio civil rights lawyer.
Free Exercise Overview
The Free Exercise Clause is a distinct right within the First Amendment. It concerns the right to practice one’s religion without undue government interference.
In general, the Free Exercise Clause protects the right to hold any religious beliefs one chooses—or the right to hold none at all. It bars government from regulating anyone’s religious beliefs, from compelling anyone to claim or disclaim a religious belief, or from punishing anyone for their sincerely held religious beliefs. This freedom extends not only to majority religious, but to those with unorthodox religious beliefs as well.
The free exercise of religion applies to more than just belief. It also protects religious practices, although there are some limitations. Laws impacting religious practices are permissible if they are generally applicable to the public, not intended to target religion, and are otherwise rationale. See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990). For instance, a state may enforce a law against murder, even if someone claims that human sacrifice is a tenet of their religion. More realistically, the Supreme Court has held that a state could ban drug use, even though it impaired the ability of a Native American to use peyote as a religious sacrament.
On the other hand, government laws that intentionally target religion will typically fail. Such laws must be narrowly tailored to achieve a compelling government interest, a standard that is very difficult to satisfy. For instance, a law banning someone from wearing a Muslim religious headscarf, known as a hijab, would invariably violate the Free Exercise Clause.
As with the Establishment Clause, Free Exercise cases can be extremely complicated. If you believed the government has violated your right to religious freedom, you should contact an Ohio civil rights lawyer to learn more about your rights.
Religion in Schools
Perhaps the most hotly contested area of First Amendment law concerns religion in public schools.
If nothing else, the Constitution forbids school-sponsored prayer or religious indoctrination. Children are susceptible to social pressure, particularly younger children. And school sponsorship of religion sends a message to those who are non-adherents that they are outsiders, disfavored members of the community. The Establishment Clause forbids as much.
No child should have to fear they will be preached to when they walk through the schoolhouse gate. Applying this principle, the Supreme Court has held various types of school practices violate the Establishment Clause, including:
- Requiring students to stand for, or recite, the pledge of allegiance if contrary to their religious beliefs. West Virginia State Board of Education v. Barnette, 319 US 624 (1943).
- Requiring students to read the Bible. School District of Abington Township, Pennsylvania v. Schempp, 374 U.S. 203 (1963).
- Banning the teaching of evolution or requiring the teaching of creationism. Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aguillard, 482 U.S. 578 (1987).
- Holding officially approved clergy-led prayer at public graduations. Lee v. Weisman, 505 US 577 (1992).
- Permitting school-sponsored prayer over school loudspeakers before a sporting event. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
This does not mean there may be no discussion of religion within the school walls. Generally, religion can be discussed in a classroom—if done for an educational purpose and not a devotional one. Legitimate discussion of religion might take place in classes on history, art, or literature.
Public school students also have the right to voluntarily pray on their own, and to engage in private, non-disruptive religious activities at school. And schools may not discriminate against student groups on the basis of religion. For example, if a school makes meeting rooms open for student clubs, it cannot deny access to a student group solely because it is religious. Good News Club v. Milford Central School, 533 U.S. 9 (2001).
Because it involves the confluence of two things people care deeply about—children and religion—issues of prayer in schools will continue to inspire passionate debate for the foreseeable future. But if you think your school has crossed the line and violated your religious freedom, contact an Ohio civil rights lawyer to discuss your rights.
Public Religious Displays
If there is another area of First Amendment law that has caused more controversy than school prayer, it is the public display of religious symbols. These displays are often seen in a variety of public places, including parks, public streets, courthouses, state capitol grounds, and historic battle sites.
Courts examining government religious displays typically look to whether a reasonable observer would view the display as endorsing religious beliefs. It is a fact-specific inquiry though, and even the Supreme Court has reached contrary outcomes in seemingly similar cases involving religious displays.
Perhaps the best example of this involves displaying the Ten Commandments on public property. In 2005, the Supreme Court held that large Ten Commandments displays in two Kentucky county courthouses impermissibly sent a message of government endorsement of religion. McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005). Yet it reached a seemingly opposite conclusion that same year in a case involving a Ten Commandments statute on the grounds of the Texas State Capitol. Van Orden v. Perry, 545 U.S. 677 (2005). In that case, the Court held the display did not violate the Establishment Clause because of context: it was just one part of a larger display, with several statutes reflecting the history and culture of Texas.
One of the most famous of these public religious display cases arose on the steps of the Ohio Statehouse. In 1995, the Supreme Court held that a cross erected on Capitol Square in Columbus did not violate the Establishment Clause because private citizens—not the government—erected it. Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995). Other displays involving a cross or Nativity have been fairly common subjects of Establishment Clause cases, including several at the Supreme Court. See, e.g., County of Allegheny v. ACLU, 492 U.S. 573 (1989); Salazar v. Buono, 559 U.S. 700 (2010).
Whether a public religious display violates the Constitution is not always clear. If you believe the government has impermissibly put up a public religious display, consult with an experienced Ohio civil rights lawyer.
Federal Statutes Protecting Religious Freedom: RLUIPA & RFRA
Occasionally dissatisfied with Supreme Court religious freedom decisions, Congress has passed two separate laws intended to afford citizens greater religious liberty.
The first of these laws is the Religious Freedom Restoration Act, passed by Congress in 1993. “RFRA” as it is known, says that government may not impose a substantial burden on someone’s religious practice unless it is in furtherance of a compelling governmental interest, and is the least restrictive way of achieving that interest. RFRA applies only to the federal government.
The second law is the Religious Land Use and Institutionalized Persons Act, or “RLUIPA.” This law has two very different protections. First, it protects against discriminatory zoning on the basis of religion. RLUIPA bars government from using zoning restrictions to treat religious institutions less favorably than nonreligious entities. But second, RLUIPA also protects the religious practices of prisoners. It bars prisons from substantially burdening the religious exercise of prisoners unless the regulation at issue meets the strict scrutiny test. Examples of prison regulations challenged under RLUIPA include a prison’s failure to accommodate religious dietary restrictions or to allow access to religious texts.
In some cases where the First Amendment will not protect religious exercise, these federal statutes might.
The First Amendment’s dual religious protections demand that government be neutral towards religion. If you have witnessed the federal, Ohio, or local government crossing the line, stand up for religious freedom and contact the Ohio civil rights lawyers at Bolek Besser Glesius LLC.