History & Religious Liberty

Introduction

Few issues of the Constitution have been discussed so often nor so controversially as the religious freedom. From the colonial period to the present day, court struggles to define the relationship between religion and the state. The First Amendment says that Congress shall make no law “respecting an establishment of religion or prohibiting the free exercise thereof.” But what does it actually mean? The Supreme Court has struggled to interpret these simple but profound words.

Several recent cases concern the rights of the citizens concerning their religion, and the Court seems to have adopted a different approach to the interpretation of the First Amendment. It is necessary to revisit exactly what the First Amendment says about the relationship between the government and religious organizations, examine some landmark cases, and understand why the Court’s interpretation keeps changing.

Constitutional Foundations

The First Amendment contains two clauses that relate to religion: the Free Exercise Clause and the Establishment Clause. They prohibit Congress from making laws that either establish a religion or interfere with individuals in their religious practices. The Founding Fathers were deeply influenced by the British colonies’ harsh religious laws. They associated official religion with the violation of personal freedoms. Religious tests for holding public office were forbidden by the First Amendment. Moreover, Madison claimed that for religion to flourish, it had to be separated from politics. In his letter to the Danbury Baptist Association, Thomas Jefferson argued that the First Amendment created a “wall of separation” between church and state.

The First Amendment does not go into detail on the theoretical relationship between the government and religion. It merely states that Congress may not “respect an establishment of religion,” and “shall not prohibit the free exercise thereof.” But what can or cannot be established? How can the government accommodate various religious groups? And what does it mean to keep government and religion separate? Courts have grappled with these questions for centuries.

The Modern Turn

For many years, the Court used Lemon test, which was worked out in the Lemon v. Kurtzman case, to interpret the Establishment Clause. According to this test, government actions must have a secular purpose, must not advance or inhibit religion, and must not result in an excessive entanglement of government with religion. However, the new Court has questioned the validity of this test, arguing that it is overly vague.

The new interpretation of the First Amendment was introduced in the 2022 Kennedy v. Bremerton case. According to the new ruling, when analyzing government actions, judges must rely on history and tradition. The Court ruled that the Establishment Clause is best interpreted in accordance with “historical practices and understandings.” This approach to reviewing religious establishment claims fits with the Court’s recent trend of adopting an originalist approach to interpreting the Constitution in general.

Complications and Crosscurrents

The issue with the constitutional law is rarely black and white. When considering the government’s interference with one’s religious practices, one must weigh the Free Exercise Clause against the Establishment Clause. Proponents of the Free Exercise Clause argue that its language is clear and concise. They believe that the clause shields the citizens from any government interference with their beliefs, practices, or organizations. Therefore, in order to stop “a wide range of oppressive conduct,” citizens must be able to practice their religion freely. They claim that the more general and encompassing the law is, the more protection it grants.

Those in favor of a strict separation of church and state argue that neutrality is the best approach. Advocates say that in order to avoid the appearance of favoritism, the government must remain completely disentangled from any religious practices. They argue that the government must treat all citizens equally, despite their different beliefs. Some argue that upholding the Free Exercise Clause to the letter could violate the rights of other citizens or create too many exemptions. Both sides of the argument believe that the First Amendment protects the citizens, but they disagree on which policy better accommodates the diverse beliefs of the population.

Why It Matters

While many disputes center on the Free Exercise Clause and the Establishment Clause, the principles extend beyond matters of faith. The Court often encounters complicated issues of discrimination in schools, in the prisons, in the workforce, and in the military. The constitutional principles of equality and fair treatment apply to many different areas of life beyond faith. As the United States becomes more diverse, courts must make more and more nuanced distinctions between the rights of different religious groups of the country.

The disputes also raise interesting constitutional matters, as the Court has taken to examining historical practices when interpreting the First Amendment. This approach to interpreting the Constitution has gained much ground, especially with the rise of originalism and its influence on the judiciary. Issues of religious liberty cut through the Constitution, touching on many other matters. With each passing year, there is a growing body of case law that deals with the relationship between the government and the faith.

Conclusion

The issues of religious liberty cut to the very heart of the Constitution. The First Amendment seeks to protect the citizens in their beliefs and practices, and to forbid the government from interfering. However, since its adoption, the amendment has been repeatedly challenged in court. Over the years, the Court examined several cases involving both Free Exercise and Establishment Clauses. The recent additions to the case law signal the Court’s shift towards applying originalist methods to interpret the Constitution. Whether or not this approach is correct is a matter of debate, but there is no doubt that a few cases in this area will continue to shape constitutional law for years to come. As society changes, so must the principles that guide the government. In times of change, the constitutionality of many different issues is questioned. Perhaps the most pressing one is how to maintain the neutrality of the government in matters of religion when it is impossible to satisfy everyone.

1. Kennedy v. Bremerton School District, 597 U.S. 507 (2022).

2. Lemon v. Kurtzman , 403 U.S. 602 (1971).

3. U.S. Const. amend. I.

4. Memorial and Remonstrance Against Religious Assessments by James Madison.

5. Letter to the Danbury Baptist Association by Thomas Jefferson.