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Establishment Clause & Free Exercise Clause  

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Establishment Clause & Free Exercise Clause  

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What is the Establishment Clause?

The Establishment Clause is a provision of the First Amendment that states, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise of religion." The Establishment Clause ensures the separation of church and state by prohibiting the government from endorsing, restricting, or promoting any religion.

What is the Free Exercise Clause?

The Free Exercise Clause is another provision embedded within the First Amendment that protects individuals' right to practice religion freely without government prohibition.

These provision clauses are essential to interpreting the First Amendment because they ensure religious freedom and the separation of church and state in America. When called into question or examined in cases that infringe on this Freedom of Religion, the courts consider Establishment Clause jurisprudence, which refers to past legal principles and court rulings determining the adequate relationship between government and religion.

The courts have established various tests to sufficiently consider cases that involve the questioning of the government's ethical involvement in certain cases dealing with religious expression, such as the Lemon Test, which originated in the case of Lemon v. Kurtzman (1971).

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Religion is one of the foundations of the American Government. When considering future judgments by the courts, it remains clear that this topic will remain controversial between both supporting and opposing sides due to the tension presented by the Free Exercise Clause vs. the Establishment Clause.

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In the case of Fulton vs. Philadelphia, Pennsylvania, this case focused on the religious freedom and discrimination of government contracts with social services. The Catholic Social Services is a foster care agency that is influenced by a strong religious foundation. As a result of this agency's beliefs they would not certify same-sex couples as foster parents, which was also heavily influenced by their religious beliefs in regards to same-sex marriage. The court ruled in favor of the Catholic Social Services arguing that the city failed to contract with CSS which in turn displayed discrimination or bias against the religious beliefs of the Catholic Social Service organization. The court believed that because the city did not contract with CSS as a result of their beliefs against same-sex marriage couples this violated the free exercise clause.

This case is an example of the continuous tensions, mentioned in our thesis, between the freedom to exercise religious beliefs and un-bias rulings and laws. This is a difficult topic of law because of the many different outcomes and circumstances that could come about in regards to religion and discrimination in our society.

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The Lemon Test "decides whether the government either prohibited the freedom to express one's religion, or promoted religion where it does not belong, like in a public school." This test combines three doctrines and becomes one: The secular purpose doctrine, the principal or primary effects doctrine, and the excessive entanglement test. In regards to the Lemon vs. Kurtzman case specifically, the court put the Lemon Test to use and found that it violated the "excessive entanglement between religion and government". Essentially, in this case the establishment clause was violated, and this clause enforces the separation of Church and State. The main parts of this test are implemented to make sure that there is no bias towards or against a specific religion, to make sure there is no over involve ent between the government and religion, and overall if any of these fail than it is considered unconstitutional.

Although this test does come with its criticisms. Some think that this test fails to address issues that are more of this time and that it fails to progress with society. The vagueness of this test is also a critique that follows as some believe that situations this test is being applied to are subjective, which in turn can cause confusion, lack of clarity and overall inconsistency within court rulings and the law itself.

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To start off, there are three levels of review that judges use before they make a decision to approach the state’s intentions behind a law: rational basis review, intermediate scrutiny, and strict scrutiny. When the Supreme Court applies a strict scrutiny approach to their jurisprudence, it means the Court is assuming a high degree of skepticism towards the state’s interest in a case. This is the strictest standard of review when it comes to evaluating a case, and in almost all cases, state law does not survive under strict scrutiny.

Examples of these cases include:

Fulton v City of Philadelphia (2021)

Burwell v. Hobby Lobby (2014)

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Strict scrutiny is the highest form of judicial review that courts use to evaluate the constitutionality of laws, regulations or other governmental policies under legal challenge. As Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), "Strict scrutiny leaves few survivors." This means when a court evaluates a law using strict scrutiny, the court will usually strike down the law.

Strict scrutiny applied when laws restrict speech rights based on viewpoint or content

In First Amendment free-speech law, content-based and viewpoint-based laws are evaluated under strict scrutiny as opposed to the lower standards of review - intermediate scrutiny or rational basis. Under strict scrutiny, the government must show that there is a compelling, or very strong, interest in the law, and that the law is either very narrowly tailored or is the least speech restrictive means available to the government.

For example, the U.S. Supreme Court in 2004 invalidated a federal law known as the Child Online Protection Act (COPA) because it did not survive strict scrutiny. The law sought to address the deleterious effects of online pornography by making it illegal to post on the internet any communication for commercial purposes that is harmful to minors. The Supreme Court found that the government had a compelling governmental interest in protecting minors from harm. However, the court found in (2004) that the law failed strict scrutiny because the restrictions it put on free speech were not the least restrictive available. The court reasoned that filtering or blocking software was a less speech restrictive alternative.

Some laws have survived strict scrutiny analysis

While the use of strict scrutiny once meant "strict in theory, fatal in fact," in recent years the Roberts Court has applied strict scrutiny in a few cases and upheld the law. For example, in Holder v. Humanitarian Law Project (2009) and Williams-Yulee v. Florida Bar (2015), the Roberts Court applied strict scrutiny but upheld the challenged laws.

Chief Justice John G. Roberts Jr. explained in Williams-Yulee, which involved a rule prohibiting judicial candidates from soliciting money, that under strict scrutiny, narrow tailoring does not mean "perfect tailoring." Roberts acknowledged that this was a "rare case" when a law would survive strict scrutiny in a First Amendment free-speech challenge.

Laws that target a specific religious faith also undergo most rigorous review

The court also uses strict scrutiny in free exercise of religion cases when the governmental law deliberately targets a specific religious faith. For example, in Church of the Lukumi Babalu Aye v. City of Hialeah (1993), the Supreme Court invalidated a Florida city law that targeted the Santeria religion and its practice of animal sacrifices. The court used to apply a form of strict scrutiny more frequently in free exercise clause cases, such as Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972), but the court changed the standard in free exercise clause cases in Employment Division v. Smith (1990).

If a law is considered neutral and of general applicability, the standard applied is a form of rational basis rather than strict scrutiny.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published on Aug. 16, 2021.

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Strict scrutiny is the highest form of review that courts use to evaluate the constitutionality of laws. A law that restricts freedom of speech or religion must achieve a compelling government interest in the least restrictive way possible.

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Strict scrutiny = state must have a compelling interest.

The scholarly reading “A Second-Class First Amendment Right? Text, Structure, History, and Free Exercise After Fulton,” by Bradley J. Lingo and Michael G. Schietzelt, emphasizes the lack of priority judicial protection of the Free Exercise Clause. The authors argue that the Supreme Court and U.S. court systems have treated the Free Exercise Clause as a “second-class” fundamental right compared to other First Amendment rights, including freedom of speech, assembly, press, and the right to petition the government. This article highlights the paradoxical decisions that the government has made in various cases that deal with the Free Exercise Clause. For example, in Employment Division v. Smith (1990), two employees, Alfred Smith and Galen Black, of a drug rehabilitation organization in Oregon, were caught and fired from their jobs because of drug use. The two individuals were denied unemployment benefits due to the context of their firing. They later fought against this decision and claimed that their First Amendment right was being infringed upon because the use of drugs was a part of their religious ritual and should be protected under the provision of the First Amendment, the exercise clause. Ultimately, the Supreme Court did not rule in their favor, citing that the First Amendment did not require states to accommodate religious practices that did not violate neutral applicable laws. Natural applicable laws apply to all citizens regardless of religious beliefs. These laws are essential because they are intended not to target or discriminate against any religion specifically but are used to cover more secular activities.  This ruling, backed by Justice Antonin Scalia, changed the framework of religious freedom and narrowed religious protections because it allowed religious cases to apply to generally applicable laws. With this ruling, courts continue to use Smith’s unprotective rule. They will enable the court to no longer use strict scrutiny tests, which allowed the government to be involved without the need for compelling interest to rule and enact burdens on religious exercises without justification, only to be able to cite “generally applicable laws.” The authors propose that to fix this infringement on the Free Exercise Clause, the courts should retreat to adopting a more strict scrutiny test for laws that encumbrance religious practices or exercises.

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Conflict Between State Anti-Discrimination Laws and Individuals' (Businesses?) Rights to Religious Exercise

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Conflict Between State Anti-Discrimination Laws and Individuals' (Businesses?) Rights to Religious Exercise

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Cases In Question:

Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) & 303 Creative LLC v. Elenis, 600 U.S. (2023). Both Masterpiece and Creative dealt with situations where the defendant and the incorporation of their religious views into their business practices ran into direct conflict with the application of state anti-discrimination laws in Colorado. In 303, a wedding website creator, Lorri Smith, does not create websites for same sex weddings. So does the baker in Masterpiece Cakeshop, but for him it is wedding cakes. However, there is a Colorado law prohibiting discrimination against sexual orientation, among other characteristics. Does the law infringe upon their rights to religious freedom? In both cases, the Supreme Court ruled in favor of the defendants' rights to religious exercise, determining that the state interest in discrimination policies were secondary to the defendants' 1st Amendment rights, imposing an "undue burden" on them.

Discrimination or free exercise right to not serve customers based on religious beliefs?

Complexity Issue considered by the Court: The baker and the wedding website creator's business policies are not directly targeting specific customers (i.e. gay couples), but rather, the content that they want them to design. They aren't outright saying “you’re gay so i won’t serve you” but refusing to make a product celebrating gay marriage because of their religious beliefs. If the gay couple in Masterpiece, for instance, had asked to make a general cake of a birthday instead of one of a wedding, and the baker had refused, that could constitute discrimination. In the rulings, the Court says that the state governments cannot force the baker or website wedding creator (any sort of content creator) to use their own creative and artistic freedom to endorse a message that conflicts with their personal, religious beliefs.

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Harmony or Disharmony within The First Amendment?  

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Harmony or Disharmony within The First Amendment?  

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In the article “The Religion Clauses after Kennedy v Bremerton School District,” Stephanie Barclay analyzes the ambiguity and implications of the Establishment Clause and the Free Exercise Clause when applied within ethical legal court cases of the government. Barclay explains the essence of the Establishment Clause, which prohibits the government from establishing or enacting certain laws or regulations that favor a specific religion. Another provision of the First Amendment that Barclay discusses is the Free Exercise Clause, which establishes that citizens have the right to freely express their religion of choice without the involvement or corrosion of the government. Barclay closely analyzes these two provisions regarding the legal case of Kennedy v. Bremerton and highlights the nuanced complexities that encircle the application of the Establishment and Free Exercise clauses. In the case of Kennedy v. Bremerton, football coach Joseph Kennedy was let go from his position after continuing to partake in religious praying before or after football games on school grounds. This issue first raised concerns when the coach would hold praying moments after games and let students join voluntarily. School officials asked Coach Kennedy to stop engaging in these prayer practices on school grounds because of concerns about the separation of religion and state. Public school grounds are considered government property, which questions the legitimacy of whether the coach should be praying on the property. Since the government funds public schools, they are subject to government policies, including the Establishment and Free Exercise Clause. This case, in particular, weighs whether the establishment and free exercise clause clash or work in harmony. In argument for the Establishment Clause, Coach Kennedy, being in an authoritative position while working on government property, indirectly suggests that the government endorses a specific religion. In the case of the free exercise clause, Coach Kennedy could argue that his right to exercise this religious choice is being limited by the government.

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World religions symbols near gavel on blue background shutterstock_1696262491

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How does religion and the way it is involved in our governmental system through the two religious clauses affect the way the First Amendment is interpreted and therefore executed/abided by?

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In the case of Burwell v. Hobby Lobby Stores, a 5-4 decision was made by the Supreme Court in favor of Hobby Lobby. Essentially, the owners of the Hobby Lobby corporation have some strong religious beliefs and wanted to be excused from having to provide their employees with contraceptives as this was something that was considered a violation to their religious beliefs. The court ruled in favor of the Hobby Lobby corporation because it was meant to show that religious beliefs could be exercised. However, there was backlash because this ruling also showed that the rule was in favor of the religious beliefs of the corporations owners but not the employees.

The main criticisms of the outcome of this case were that the employees rights were infringed upon, that access to healthcare was interrupted, and the balance between religious freedom and healthcare rights for employees was not balanced.

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An Account of the History of Freedom of Religion 

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An Account of the History of Freedom of Religion 

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Deborah Fisher’s article “Freedom of Religion” explains and analyzes the historical background of Freedom of Religion and its application within the US Constitution. Fisher also highlights the uncertainty of Freedom of Religion and its protections within the First Amendment. She argues that the provisions instated within the Constitution to protect our right to any religion also have their “internal contradiction.” Fisher asks, “Is it possible to have free exercise rights even when there is an established church?” Taking a closer look at a state with an established religion, Great Britain had laws establishing, controlling, and maintaining the Church of England. The state has enacted various acts that helped bring the church and state together. The separation of early American colonies had many different religious backgrounds within one state. Some states handled the differences of religions with a more strict outcome versus others that selected their religions together. Those who strayed from the established religion were often punished by the law. The uprise of the American Revolution shook the established religious framework that was being established in other states. Americans sought to keep governmental influences out of religious exercise. When the Declaration of Independence was formed, some states were prompted to introduce protections for individual freedoms, such as freedom of religion. All these state constitutions involved protected freedoms that included a modified version of the free exercise clause. It was noted that not all states had members who agreed with this refined provision of protection. Some believed that a State should have an established religion. While the creation of these provisions was intended to keep state and church separate, it proved to me the opposite of that.

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In regards to the article "The Weaponization of the Free-Exercise Clause" by Howard Gilman and Erwin Chemerinsky this article argues that the Free Exercise Clause's original intention has been obstructed. Instead of this clause being used to protect religious freedoms, "a protection for religious minorities from the prejudices of the powerful..." (Gilman and Chemerinsky) it is being used to somewhat undercut other civil rights and potential equality.

Returning back to the Hobby Lobby case, this case shows that there are people who are looking to be the exception of the law because of their religious beliefs when in reality this clause is meant to level the playing field for everyone not put others above their peers.

Having religious freedom is a right and value that The United States must uphold but that the weaponization of this clause could and will add more tension to the already imbalanced circumstances between religious freedoms and acknowledgement of other societal issues or engagements.

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What is the Tension Presented Between the Free Exercise Clause and Establishment Clause? Why Is it Important to Consider Today & What Could It Mean For the Future?

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What is the Tension Presented Between the Free Exercise Clause and Establishment Clause? Why Is it Important to Consider Today & What Could It Mean For the Future?

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The Free Exercise vs Establishment Clause...Under the Roberts Court

Although both the Free Exercise Clause and Establishment Clause are located in the First Amendment, they are often found to be at conflict with one another, as demonstrated in cases like Masterpiece (2018), 303 Creative (2023), and more. This tension between the two clauses has especially reached an all-time high throughout the reign of the Roberts Court (2005-present). For instance, in Carson v. Makin (2021), the Court overturned a Maine law that prohibited students participating in a student aid program from using their aid to attend religious, or "sectarian" schools. According to Justices Sotomayor, Kagan, and Breyer in their dissenting opinion of Carson, they argued that the conservative majority gave "almost exclusive" attention to the Free Exercise Clause while paying "almost no attention” to the Establishment Clause." Justice Sotomayor also offered a separate dissenting opinion as well, claiming that the Court’s "increasingly expansive view of the Free Exercise Clause...risks swallowing the space between the Religion Clauses." This demonstrates her concern that by prioritizing religious exercise so heavily, the Court may end up diminishing the protections offered by the Establishment Clause, thereby undermining the separation between church and state intended by the Founding Fathers.

Future Implications

The current trajectory under the Roberts Court suggests a continuing emphasis on protecting religious exercise through the application of strict scrutiny, potentially at the expense of maintaining a strict separation between church and state. This trend is predicted to lead to more cases where religious beliefs are given precedence over other constitutional principles, such as anti-discrimination laws and the prohibition of government endorsement of religion.

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Overall, then imbalance and tension between the Free Exercise Clause and the Establishment Clause emphasizes the difficulties and obstacles of balancing the freedom of religion and the obligation of the government to be a neutral and unbiased party. In order to create a more successful government and society it is necessary to progress with respect to others and our constantly changing times and circumstances.

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Barclay, Stephanie H. "The Religion Clauses after Kennedy v. Bremerton School District." Download "The Religion Clauses after Kennedy v. Bremerton School District."Iowa Law Review, 108.5 (2023): 2097-2114.

Fisher, Deborah. "Freedom of Religion.Links to an external site." Free Speech Center.

Lingo, Bradley J. and Michael G. Schietzeit. “A Second-Class First Amendment Right? Text, Structure, History and Free Exercise after Fulton."Links to an external site. Wake Forest Law Review, 57.3 (2022): 711-776.

“The Weaponization of the Free-Exercise Clause.” The Atlantic, 18 September 2020, https://www.theatlantic.com/ideas/archive/2020/09/weaponization-free-exercise-clause/616373/. Stern, Mark Joseph. The Supreme Court radically redefined religious liberty in the COVID case Tandon v. Newsom., 12 April 2021, https://slate.com/news-and-politics/2021/04/supreme-court-religious-liberty-covid-california.html.

Heyman, Steven J. “Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause.” Search eLibrary :: SSRN, 2 July 2020, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3623251.

“Burwell v. Hobby Lobby Stores, Inc.” SCOTUSblog, https://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/.

Pacelle, Richard L. “Lemon Test | The Free Speech Center.” Free Speech Center, 17 October 2023, https://firstamendment.mtsu.edu/article/lemon-test/.

"Lemon v. Kurtzman." Oyez, www.oyez.org/cases/1970/89.

"Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission." Oyez, www.oyez.org/cases/2017/16-111.

"303 Creative LLC v. Elenis." Oyez, www.oyez.org/cases/2022/21-476.

"Carson v. Makin." Oyez, https://www.oyez.org/cases/2021/20-1088

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Image Citations:

Weddings at Knox. Knox Presbyterian. (n.d.-a). https://knox.org/your-wedding-at-knox/

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