By far the most famous of all the Constitutional amendments, the First Amendment holds special importance for the millions of us who choose to believe in Jehovah, the one true God. But how many of you know exactly what it says?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof
The language seems obvious, and it was at the time it was drafted: our Founding Fathers clearly wanted to prevent any sort of government-run church like what they had just escaped in Britain not long before. They didn’t want the government establishing a church, nor did they want the government getting in the way of our free exercise of religion. This basic understanding of the First Amendment remained for almost two full centuries, as federal courts rarely addressed the First Amendment in court opinions. In fact, many practices that would be “unconstitutional” today were standard practice at the time — religious instruction and prayer in public schools, religious symbols on public property, etc.
It wasn’t until the early 20th century that the tides of judicial interpretation began to shift. The First Amendment was broken down by the courts into separate legal clauses: 1) The Establishment clause, and 2) the Free Exercise clause. (The concept of these separate clauses wasn’t new, but had rarely been addressed before this time.)
Federal courts, primarily since the 1940s on, gained a willingness to stretch the very premise of what constitutes an “establishment of religion” in ways never before seen, and began to add qualifiers onto the Free Exercise clause to condemn practices that had been deemed acceptable in America since its founding. They also began to comment more on the potential dichotomy between the two clauses. In fact, the Supreme Court had this to say in 1973:
[T]his Court repeatedly has recognized that tension inevitably exists between the Free Exercise and the Establishment Clauses … and that it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of “neutrality, ” neither “advancing” nor “inhibiting” religion.”
Unfortunately, the courts seemed to lean more in favor of limiting religion under the Establishment Clause than it did in favoring religious freedom under the Free Exercise Clause. The Chief Justice of the Supreme Court had this to say in 1975:
The Court apparently believes that the establishment clause of the First Amendment not only mandates religious neutrality on the part of government but also requires that this Court go further and throw its weight on the side of those who believe that our society as a whole should be a purely secular one. Nothing in the First Amendment or in the cases interpreting it requires such an extreme approach to this difficult question, and any interpretation of the establishment clause and constitutional values it serves must also take account of the free exercise clause and the values it serves.
So what do Christians today need to understand about these two vital clauses? Let’s break down where current law stands on each:
The Establishment Clause
It was clear for a very long time that the Establishment Clause had one single purpose preventing the federal government from establishing a church. Unfortunately the Supreme Court in 1947 drastically widened this definition in the case Everson v. Board of Education. In this case, the court referred to the unfortunate famous words of Thomas Jefferson regarding the “wall of separation between church and state.” The court ruled that the government cannot “pass laws which aid one religion, aid all religions, or prefer one religion over another.” This was a devastating expansion of the Establishment Clause, well beyond what the Founding Fathers intended.
The effect of this expansion was nigh immediate and horrific. The first loss of freedom came only a year later when a school board policy permitting religious instruction was ruled unconstitutional. It was only fifteen years later that the sad and historic case striking down all prayer in public schools was decided. In 1968, the Court struck down a law in Arkansas prohibiting the teaching of evolution. The slide towards secularism was faster than anyone could have anticipated.
In 1971, a landmark case known as Lemon v. Kurtzman created the most famous test for whether something violated the Establishment clause: a three-part analysis called the Lemon test. It required courts to ask these three questions of any law that appeared to promote religion:
- Does the law have a clearly secular purpose?
- Does the law have a primary effect that neither advances nor inhibits religion?
- Does the law not foster an excessive entanglement between church and state?
This troubling test only hastened the governmental slide towards removing all traces of religious support—creationism in schools, the Ten Commandments in school, etc.
Thankfully, the Supreme Court and other courts have in the decades since expressed some concern over the anti-religious aspects of the Lemon test, but unfortunately it has still not been overtly overturned, and is still commonly cited by courts throughout the nation.
The Free Exercise Clause
This vital clause was mostly untouched through the majority of our country’s early lifecycle, ultimately because governmental leaders still had such respect for faith that they wouldn’t dare attempt to infringe on anyone’s beliefs. Unfortunately, the judiciary’s interpretation of this clause also began to shift around the 1940s along with the Establishment Clause.
The Supreme Court issued its first substantial adjustment on how the Free Exercise Clause would be applied in the 1963 case of Sherbert v. Verner, and clarified not long after in Wisconsin v. Yoder. It ruled that:
- The government may never interfere with an individual’s right to believe whatever he or she wants.
- In determining whether the government may interfere with or restrict religiously motivated conduct, the courts must consider (a) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (b) whether the activity was unduly and substantially burdened by the government’s action, and (c) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.
However, the Supreme Court made an immense “clarification” in a later 1990 case known as Employment Div. v. Smith: “We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the state is free to regulate.” Worryingly, the Court in this case did not utilize its own “compelling interest” analysis as laid out above, noting that the analysis didn’t apply to “neutral laws of general applicability.” This decision was unsurprisingly unpopular with many conservatives.
As a result of the Smith case, Congress moved forward and passed the Religious Freedom Restoration Act (“RFRA”). This bipartisan bill codified the “compelling interest” analysis to essentially nullify the Smith decision. This was an immense bill for religious entities, and still is to a certain extent. Unfortunately, the Supreme Court soon found RFRA was an overstep by Congress in applying it to the states, and that portion was ruled as unconstitutional. (Congress eventually responded to this by passing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)).
This ultimately means the question that courts must answer today is whether a law is actually neutral and of general applicability, or if the object of the law is to infringe upon or restrict conduct because of religious motivation.
The ongoing pandemic has presented the perfect example of this analysis in action, as we saw multiple governors putting more severe restrictions on churches than they were on other similar secular entities. Dozens of lawsuits were filed, including several by CLA, and multiple courts found that certain governor’s orders were not constitutional.
If a law is not of general applicability or neutrality, courts must determine if the law “is justified by a compelling governmental interest and must be narrowly tailored to advance that interest.” The courts have been clear that this also includes “exemptions” from laws: “… where the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.
Conclusion
Ever since the mid-20th century, courts have been tom on how to balance the Establishment Clause and the Free Exercise Clause. This war will not likely end anytime soon, although the current makeup of the Supreme Court has handed several recent victories to churches and religious ministries. Ultimately, the two clauses should be considered together to ensure government neutrality towards religion – not hostility. It is absolutely vital to continue defending the Free Exercise Clause today, particularly as secular legal groups continue to promote the judicial expansion of the Establishment Clause in order to restrict religious freedoms. At the Christian Law Association we are proud to be on the front lines of this ongoing battle. If you are experiencing any religious discrimination by the government, please call our ministry today.
[Ed. note: While endorsing the particulars of this article, we would also express concern over the never-questioned power of the Supreme Court universally to strike down a law upon the decision of a single case. Historically and reasonably a court cannot decide on law in general, but only the case at hand. Multiple cases reasonably decided should provide precedent and prompt correction in legislation, but should have no further consequence. Otherwise, the court has the power to legislate, something clearly the American founders did not countenance, nor could reason allow, as then our system would be a house divided against itself, which it manifestly now is. The fact that the Supreme Court gave itself this power ought to put a spirit of political vigilance into the hearts of justice and liberty loving Americans. That it took two centuries to manifest the ugly reality of court authority over the Christian faith, should, as it did for the patriots of early America in resisting a penny tax on tea, cause every Christian to anticipate that the slightest granting of unwarranted power will sooner or later become another link in the chains of slavery under godless tyranny.]
Christian Law Association published the original of this article in their Legal Alert monthly publication, date October 2021.
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Amen. We are grateful for your work.