Religious Freedom
The First Amendment's Religion Clauses — the Establishment Clause and Free Exercise Clause — protect religious liberty by preventing government-sponsored religion and protecting individual religious practice.
Overview
The First Amendment contains two religion clauses: the Establishment Clause ("Congress shall make no law respecting an establishment of religion") and the Free Exercise Clause ("or prohibiting the free exercise thereof"). Together, they create a framework for the relationship between government and religion.
The Establishment Clause prohibits the government from endorsing, sponsoring, or favoring religion. The Lemon test from Lemon v. Kurtzman established a three-part framework: (1) the law must have a secular legislative purpose; (2) its principal effect must neither advance nor inhibit religion; and (3) it must not foster excessive government entanglement with religion. However, the Lemon test's vitality has been questioned. In Kennedy v. Bremerton School District, the Court moved toward a historical practices and understandings approach, looking at whether the challenged practice has a long historical pedigree.
The Free Exercise Clause protects individuals from government interference with sincere religious beliefs and practices. Employment Division v. Smith established that neutral, generally applicable laws do not violate the Free Exercise Clause even if they incidentally burden religious practice. This means strict scrutiny applies only when laws target religious practice or are not generally applicable. Church of Lukumi Babalu Aye v. City of Hialeah illustrates: an ordinance targeting animal sacrifice specifically used by Santeria practitioners was not neutral or generally applicable.
The Religious Freedom Restoration Act (RFRA) restored strict scrutiny for federal laws substantially burdening religious exercise, filling the gap left by Smith.
Key Takeaway
The Establishment Clause prevents government from promoting religion; the Free Exercise Clause prevents government from restricting it. Together they require neutrality.
Exam Tip
For Establishment Clause, know both Lemon and the historical practices approach. For Free Exercise, start with Employment Division v. Smith — if the law is neutral and generally applicable, rational basis applies unless RFRA or a state RFRA provides heightened protection.
Landmark Cases (9)
Frequently Asked Questions
What is the Lemon test?
From Lemon v. Kurtzman: (1) the law must have a secular purpose, (2) its principal effect must neither advance nor inhibit religion, and (3) it must not create excessive government entanglement with religion. The test's current vitality is debated after Kennedy v. Bremerton.
What did Employment Division v. Smith hold?
Smith held that the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. A law that incidentally burdens religious practice is constitutional if it doesn't target religion. Congress responded by enacting RFRA.
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