Freedom of Religion
“Torrents of blood have been spilt in the old world, by vain attempts of the secular arm, to extinguish Religious discord, by proscribing all difference in Religious opinion. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease.”
“Memorial and Remonstrance Against Religious Assessments”
The First Amendment protects five rights, the first of which is religious liberty. The two clauses related to religion are referred to as the Establishment Clause and the Free Exercise Clause. The resources on this page include precursors to the First Amendment and significant Supreme Court cases in which the Justices based their decisions on the Establishment Clause or Free Exercise Clause. Learn more about the religion clauses of the First Amendment in the JMC First Amendment Explorer.
The Founding Era
Thomas Jefferson submitted this bill for establishing religious freedom in 1779, but it was not adopted by the Virginia General Assembly until 1786. It calls for the end of tax-supported churches and compelled religiosity or attendance at places of worship. Jefferson articulates why governments should not infringe on individual rights to practice religion or support a church of their choice.
In 1784, Patrick Henry proposed a bill that would use tax dollars to support teachers of the Christian religion in Virginia. Strongly opposed to state interference in religious practices, James Madison anonymously wrote the Memorial and Remonstrance to argue against the bill. Like Jefferson’s bill above, Madison explains why government involvement in religion will have negative consequences and that it is unjust for the state to support one religion over another.
The rhetoric in the writings above influenced the inclusion of the religious clauses in the First Amendment. See the text of the First Amendment at the link below.
Supreme Court Cases: The Establishment Clause
The Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”) forbids the government from advancing any religion. One type of Establishment Clause case involves public funding for parochial schools. The Court attempts to achieve “neutrality” in the Everson v. Board of Education (1947) case. The outcome of Lemon v. Kurtzman (1971) is the “Lemon Test,” which is frequently used by the Supreme Court, including in Zelman v. Simmons-Harris (2002).
Another kind of Establishment Clause case involves prayer at public schools. In Abington School District v. Schempp (1963) and Lee v. Weisman (1992) the Supreme Court takes up the issue of prayers at school events being perceived as coercive to students in attendance.
Supreme Court Cases: The Free Exercise Clause
The Free Exercise Clause of the First Amendment (“Congress shall make no law…prohibiting the free exercise thereof”) protects individuals in the free practice of their faith. One way the Free Exercise clause has been used to give conduct exemptions for religious individuals as in the case of Wisconsin v. Yoder (1972). Later cases have redefined the purpose of conduct exemptions though, as in Employment Division of Oregon v. Smith (1990) and Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993).
In situations when public resources are available to the community or the government is regulating group behavior (which has become very common during the COVID-19 pandemic), the Court uses the Free Exercise Clause to determine if religious groups are being discriminated against because of their religious nature. In Good News Club v. Milford Central School (2001) and Trinity Lutheran Church v. Comer (2017), the Court rules that religious groups are entitled to public spaces and services that are available to the general public. In Diocese of Brooklyn v. Cuomo (2020), the Court takes up the issue of neutral enforcement of COVID-19 mandates.
In Our Lady of Guadalupe v. Morrissey-Berru (2020), the Court upholds the ministerial exception using the Free Exercise Clause. The ministerial exception allows religious institutions to dictate the terms of employment in ways that could otherwise be contradictory to anti-discrimination laws.
Christianity in 18th Century America
The Constitution, the First Amendment, and Religious Liberty
Bill of Rights Institute