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Establishment Clause Cases
Free Exercise Cases

The Constitution’s two Religion Clauses prohibit Congress from making “any law regarding an establishment of religion” or “to prevent the free exercise thereof.” Legal experts have explained for many years that the two First Amendment clauses point in somewhat different directions and pose somewhat difficult issues for courts asked to apply the clauses in real-life disputes. In this Court Report, court expert Kenneth Jost explores this tension between the Establishment Clause and Free Exercise Clause and how the Court has taken a more lenient view in church-state separation cases in recent years.

Courts on the one hand may be called on to determine whether government support for religious entities or believers crosses the Establishment Clause line or, conversely, whether ostensibly neutral governmental policies may interfere with free exercise rights.

The Supreme Court has grappled with Religious Clause issues through the years in a variety of factual contexts, ranging from ceremonial acknowledgments of religion through financial support for religious organizations. The number of such cases increased in the twentieth century after the Court used the so-called “incorporation doctrine” to enforce the Religion Clauses against the states, not just against the federal government.

Through the end of the 20th century, the Court relied on the Establishment Clause in a series of controversial decisions to prohibit or limit organized prayer in public school settings and to limit direct funding of church-affiliated schools. The Court found no Establishment Clause violations, however, in ceremonial acknowledgment of religion in such settings as legislative prayer or Christmastime recognition of the holiday for its secular significance.

The Court’s Free Exercise cases, on the other hand, have construed the clause somewhat narrowly to allow the government to enforce ostensibly neutral laws even if the law at issue interferes with religious beliefs or practices of some religious group. In the first of those cases, the Court held in 1879 that the government could enforce anti-polygamy laws in the predominantly Mormon Utah Territory. A century later, the Court ruled somewhat similarly in 1990 that a state government could penalize a member of an Indian tribe for violating the state’s anti-drug law by using peyote during a religious ceremony.

With a fortified conservative majority in the 21st century, the Court under Chief Justice John G. Roberts Jr. proved to be more receptive to Free Exercise claims and less receptive to Establishment Clause challenges brought by church-state separationists. The trend was manifest in a trifecta of decisions that favored religious liberties claims in the Court’s 2019 term.

Two of the decisions favored church-affiliated schools by limiting application of anti-discrimination laws to the schools’ personnel decisions affecting teachers and by guaranteeing parochial schools’ right to participate in student aid programs accessible to public school students. In the third of the decisions, the Court allowed a Catholic order that operates homes for the aged throughout the United States to claim an exemption from a federal regulation requiring employers generally to provide cost-free contraceptive coverage in employee health plans.

Establishment Clause Cases

The Religion Clauses, as ratified, are shorter and less specific than James Madison’s version as approved by the House of Representatives and the slightly modified version adopted by the Senate. Writing in 1802 a decade after ratification, President Thomas Jefferson declared that the purpose of the First Amendment was to “build a wall of separation between Church and State.” Religious liberty advocates criticize the metaphor as inaccurately suggesting that the government must be not only neutral between different faiths but also neutral between religion and irreligion.

Jefferson’s wall has never been as high as strict separationists would like. In upholding the practice of legislative chaplains in 1983, for example, the Court noted in Marsh v. Chambers that Congress in 1791 had authorized payment of funds for a chaplain to deliver opening prayers. Nor has the Court been strict in preventing any government financial assistance to religious institutions. In 1899, for example, the Court in Bradfield v. Roberts upheld public financing of a hospital operated by a Catholic order on the ground that the facility was secular.

The Court has opened the door to government support for parochial school students in a succession of decisions dating from the 1930s and through the end of the 20th century. The Court’s ruling in Cochran v. Board of Education (1931) upheld Louisiana’s program of lending textbooks to parochial schools; sixteen years later, the Court in Everson v. Board of Education (1947) similarly upheld on a 5–4 vote a New Jersey law paying for bus transportation for students of public and parochial schools alike.

The Court, however, prohibited states from providing direct salary supplements to teachers at parochial schools. The 8–1 ruling in Lemon v. Kurtzman (1971) struck down programs in two states: Pennsylvania and Rhode Island. It also established the three-part Lemon test, which permits religion-related legislation if it has a secular purpose, does not advance or inhibit religion as its principal effect, and does not result in government entanglement with religion.

Chief Justice William H. Rehnquist led the Court in a significant 5–4 decision supporting Ohio’s program of school vouchers in Zelman v. Simmons Harris (2000) even though parochial school students were the principal beneficiaries. As Rehnquist’s successor, Roberts led the Court in a broader, 7–2 decision in Espinoza v. Montana Dep’t of Revenue (2020) holding that states must include parochial schools in any student tuition support program.

The Court also dealt a series of controversial setbacks to religious liberty advocates with decisions dating from the 1960s that generally prohibit school-led prayer or Bible reading in public schools. In the first of the decisions, the Court in Engel v. Vitale (1962) prohibited on a 6–1 vote the use of a prayer written by a state school board for use in public school classrooms. A year later, the Court similarly prohibited teacher-directed Bible reading in public school classrooms with an 8–1 decision in Abington Township v. Schempp (1963). Justice Potter Stewart was the lone dissenter in both rulings.

Despite widespread public criticism of the decisions and efforts to overturn them by constitutional amendments, the Court later expanded the rulings by similarly prohibiting moment-of-silence laws ( Wallace v. Jaffree , 1985), clergy-led prayer at high school graduations (Lee v. Wiseman, 1992), and organized prayer at high school football games ( Santa Fe Ind. School District v. Doe , 2000).

The Court has been less than consistent in Establishment Clause cases challenging government acknowledgment of religion on government property. The Court in the 1980s found a city’s Christmastime display of a creche to be an Establishment Clause violation ( County of Allegheny v. American Civil Liberties Union , 1989) in contrast to an earlier decision allowing placement of a Christmas tree decorated with some secular symbols in a public building ( Lynch v. Donnelly , 1984).

The Court in 1980 invalidated a Kentucky law requiring the placement of the Judeo-Christian Ten Commandments in public school classrooms ( Stone v. Graham ). Twenty-five years later, the Court barred the prominent placement of the Ten Commandments in a local Kentucky courthouse ( McCreary County v. American Civil Liberties Union , 2005), but on the same day allowed a Ten Commandments monument on the grounds of the Texas state Capitol ( Van Orden v. Perry , 2005).

The Roberts Court relaxed Establishment Clause restrictions in two other decisions in the next decade. The Court gave more discretion on legislative prayer with its 5–4 decision in Town of Greece v. Galloway (2014). The ruling upheld the town council’s practice even though the invocations were uniformly sectarian and sometimes included invitations to the audience to join. The Court’s four liberal justices dissented.

Four years later, the Court found no Establishment Clause violation in the placement of a giant Christian cross on public ground at a major intersection in the Washington, D.C., suburb of Bladensburg, Maryland. The ruling in American Legion v. American Humanist Association (2018) emphasized that the cross was privately funded and erected as a memorial to service members killed in World War I and that maintenance required only minimal government outlays.

Free Exercise Cases

The Senate’s version of what became the Free Exercise Clause provided that Congress “shall make no law prescribing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” Even without those two specifications, however, there is scant evidence over more than two centuries of efforts by either Congress or the states to “prescribe[ ] articles of faith, or a mode of worship. . . .” Instead, religious liberties claims under the Free Exercise Clause have arisen because of legal challenges from religious groups that ostensibly neutral laws required actions or conduct that went against their religious beliefs.

The Supreme Court’s first significant encounter with a free exercise claim in this context came in an appeal by a Mormon, George Reynolds, for his bigamy conviction in what was then the territory of Utah. Reynolds appealed his conviction to the Supreme Court, which upheld the conviction by holding in Reynolds v. United States (1879) that religious belief could not be a defense to a criminal indictment. In his opinion for the Court, Chief Justice Morrison Waite emphatically rejected Reynolds’ reliance on the Mormon religious practice of multiple marriages. “[T]o permit this,” Waite wrote, “would be to make the professed doctrine of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

In two significant later decisions, however, the Supreme Court relied on other constitutional doctrines to grant individuals exemptions from state laws that went against their religious beliefs. The Court invoked free-speech principles in the landmark decision in West Virginia State Board of Education v. Barnette (1943) that blocked the state from enforcing a “flag salute” law against the daughter of a Jehovah’s Witness family; the Witnesses’ religion forbade them from saluting or pledging to symbols. The 6–3 decision overturned a precedent to the opposite effect issued only three years earlier: Minersville School District v. Gobitis (1940).

Three decades later, the Court’s 6–1 decision in Wisconsin v. Yoder (1971) blocked the state of Wisconsin from enforcing a law requiring public school education beyond the eighth grade against an Amish family. In his opinion for the Court, Chief Justice Warren E. Burger favorably evaluated the Amish way of life and religious beliefs and found the parents’ religious freedom to outweigh the state’s interest in the children’s education. Two of the justices did not participate in the decision; Justice William O. Douglas was the sole dissenter.

Two decades after Yoder, the Court changed direction with a broadly written decision that generally disfavored free-exercise claims as entitling an individual to an exemption to what Justice Antonin Scalia described as “a neutral, generally applicable regulatory law.” The 6–3 decision in Employment Division v. Smith (1990) allowed the state of Oregon to deny unemployment benefits to two men who were fired from a drug rehabilitation facility because they smoked peyote as part of a tribal religious ceremony.

Scalia, a devout and observant Catholic, compiled a long list of Court decisions dating from Reynolds that rejected free-exercise exemptions from state or federal laws while he treated Yoder and a few others as based not on the Free Exercise Clause but on other constitutional protections, including freedom of speech and freedom of the press. Justice Sandra Day O’Connor concurred in the result in a lengthy opinion that called Scalia’s opinion “incompatible with our Nation’s fundamental commitment to individual religious liberty.” Three liberal justices dissented in an opinion written by Justice Harry A. Blackmun that also rejected Scalia’s reasoning and disagreed with the result; Justices William J. Brennan Jr. and Thurgood Marshall joined Blackmun’s opinion.

Despite Smith’s broad language, the Roberts Court has been receptive to free-exercise claims based on challenges to laws favoring LGBT rights and reproductive rights and has given religiously-affiliated schools a partial exemption from laws prohibiting discrimination in the workplace. The Court first recognized a “ministerial exception” for religious schools in a decision, Hoasana-Tabor Evangelical Lutheran Church and School v. Employment Opportunity Division (2012), that rejected a Missouri woman’s claim under the Americans With Disabilities Act that the church-affiliated school had refused to rehire her after a disability leave. Writing for six justices in the main opinion, Roberts stressed that the school regarded teachers as “called” ministers for the faith and on that basis found that what he termed a “ministerial exception” barred an employment discrimination suit “brought on behalf of a minister . . . .”

The Court expanded the “ministerial exception” eight years later in a decision, Our Lady of Guadalupe School v. Morrissey-Berru (2020), that rejected an age discrimination complaint brought against a Catholic school in southern California by a former teacher who taught secular as well as religious subjects. Justice Samuel A. Alito Jr. wrote the opinion for the Court, with justices Ruth Bader Ginsburg and Sonia Sotomayor in dissent.

The Court broke new ground with a decision in 2014 that allowed a private company to claim an exemption, based on the owners’ religious views, from a regulation issued under the Affordable Care Act requiring employers to include cost-free coverage for contraception in employee health plans. The 5–4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014) found, based on the Religious Freedom Restoration Act (RFRA), that the government could further its interest in reproductive health without burdening the company’s free-exercise rights. Alito wrote for the conservative majority; Ginsburg led the four liberal justices in a strongly written dissent.

Six years later, the Court went further by upholding a broader exemption allowing employers to claim a religious or moral objection to providing contraceptive coverage to employees. The state of Pennsylvania successfully challenged the Trump administration’s regulation in lower courts on administrative law grounds, but a Catholic order that operated homes for the aged appealed the case to the Supreme Court. The 7–2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania (2020) upheld the regulation with Ginsburg and Sotomayor in dissent.

The Court has shown some receptivity to free exercise claims by companies charged with violating anti-discrimination laws by refusing service to LGBT customers, but as of the 2020 term had yet to issue a definitive ruling on the question. The Court refused in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) to allow the state to penalize a baker who refused, because of religious objections to same-sex marriage, to bake a wedding cake as requested by a gay couple planning to wed. The 7–2 decision turned on evidence of anti-religious bias by one of the civil rights commissioners preceding the agency’s ruling. Justice Anthony M. Kennedy authored the narrowly written opinion, with Ginsburg and Sotomayor in dissent.

State courts in two similar cases had rejected free-exercise claims by a florist in Washington who refused to provide wedding arrangements for a lesbian couple and a photographer in New Mexico who refused to provide services for a lesbian couple’s wedding. The florist and the photographer appealed those decisions to the Supreme Court, but the justices declined to hear either of the cases—thus leaving the legal issue unresolved.


Document Citation
Kenneth Jost, Religious Liberty Claims Advancing under Roberts Court, CQ Supreme Court Collection (2021),
Document ID: cqelsc-1619-114902-2967058
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