Respect for religious liberty in America today is strong, but only as the result of an arduous struggle that predates the founding of the United States and has persisted for nearly four hundred years. In the course of this struggle, major advances in religious liberty have been tempered by periods in which disfavored religious minorities have been persecuted.
The issue of religious liberty traveled to America with her first settlers, who formed a patchwork of colonial governments that addressed the problem in very different ways. When the colonies broke free from British rule and formed a new nation, this variety of approaches had somehow to be reconciled.
The colonies disagreed on three issues of central importance to religious liberty: the establishment of churches, the freedom to worship and engage in other religious speech, and political participation by religious minorities. These controversies helped to shape the four core protections for religious liberty that were ultimately included in the Constitution of the United States: the Establishment Clause, the Free Exercise Clause, the No Religious Test Clause, and the Free Speech Clause.
All of these constitutional protections continue to provoke debate today. Yet in combination—and as interpreted by the judicial and political branches over the years—they have served America well. For evidence, observers need look no further than the status of Protestant Christianity. Protestantism is often closely linked with American culture and government, and it remains the largest single religious group in the United States. Yet despite the vitality of American Protestantism, no single Protestant denomination (nor even a plurality of them) has risen to prominence in American life or enjoyed state support. On the contrary, the United States is noted for its large number of religious organizations, the religiosity of its citizens, and the relative peace in which these diverse peoples and practices coexist.1
Four Constitutional Protections
The Establishment Clause. By the time the Constitution was drafted, the colonies’ differences over the establishment of religion were particularly bitter. Some colonies, such as Massachusetts, maintained taxpayer-supported churches and feared a powerful anti-establishment guarantee. Other colonies, such as Virginia, had rejected even a mild form of establishment that would have supported a variety of Christian churches, and were opposed to any state church at all in the new federal government. The Constitution’s eventual language was therefore the result of a compromise: it prohibited national establishment, but allowed the state and local governments to retain their separate establishments.
Nonetheless, in an era of growing religious diversity, established churches became increasingly unpopular, and the last remaining state establishment, in Massachusetts, ended in 1833. With established churches gone and no national church to worry about, the federal Establishment Clause remained relatively uncontroversial (and was rarely invoked) until 1947.
In that year, the Supreme Court decided Everson v. Board of Education (1947), in which the plaintiffs challenged the provision of public school busing to students attending religious schools as a violation of the federal Establishment Clause. Although the court rejected the challenge to that particular program, it affirmed the broader proposition that the federal Establishment Clause applied to the states through the Fourteenth Amendment. Thus, after Everson, the provision that once protected state establishments from federal interference was construed to forbid them.
Everson was also important because it first incorporated into Establishment Clause jurisprudence Thomas Jefferson’s metaphor of the “wall of separation between church and State” from his 1802 letter to the Danbury Baptists. Everson famously declared that the First Amendment “was intended to erect” such a wall, which the court must keep “high and impregnable,” “not approv[ing] the slightest breach.” Despite its late introduction into First Amendment jurisprudence, this concept has profoundly shaped the law ever since. It ushered in a new era of federal constitutional challenges to governmental conduct, ranging from aid to religious institutions (especially schools), to cultural expression that includes religion, to the accommodation of religion.
The debate over the scope of the Establishment Clause triggered by Everson continues to this day.
The Free Exercise Clause. The freedom to worship—or more broadly, the freedom of religious exercise—provoked somewhat less controversy among the drafters of the Constitution. Like the Establishment Clause, the Free Exercise Clause as originally written did not apply to state and local governments and therefore had relatively little impact on the day-to-day religious practices of most citizens. Moreover, from the beginning, most state constitutions protected freedom of worship, often with the proviso that one’s religious practices should not disturb the peace and public order.2
Still, the scope of the right was the subject of debate in the first Congress. Congress rejected a proposal by James Madison that contained a broad guarantee for “freedom of conscience” for all citizens, as well as a conscientious-objector provision exempting religious objectors from military service.3 Conscientious objection had arrived in America with the Quakers, who were at the time a disfavored religious minority. Early Quakers (and members of other so-called peace sects) suffered criminal penalties, corporal punishment, and even the threat of death for their refusal to serve in the militia.4
Instead, Congress passed more general language in the First Amendment that protected the “free exercise” of religion and remained silent on the issue of conscientious objectors.5 The problem of religious conscientious objectors again arose during the Civil War, when the federal government at last exempted conscientious objectors from military service, provided that they performed public service in a hospital or elsewhere. Since that time, whenever a military draft has been in place, Congress has provided a similar exemption.6
The degree to which “free exercise” exempts religious activities from generally applicable laws remains the subject of sharp debate today. This results partly from the Supreme Court’s decision in 1940 to apply the Free Exercise Clause to the states.
The No Religious Test Clause. The framers of the Constitution also adopted a clause to guarantee that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” As with the Constitution’s other religious protections, however, the “no religious test” clause of Article VI did not originally apply to the states, many of which limited the right to hold political office, to become an officer of the court, or even to vote to favored religious majorities, such as monotheists, Christians, or Protestant Christians. Many colonies also excluded Quakers from political participation on the grounds that they would not take oaths.
While states gradually became more permissive with regard to religious tests over the years, state-level religious requirements for public office were not abolished entirely until 1961, when the Supreme Court in Torcaso v. Watkins (1961) invalidated Maryland’s requirement that all public officeholders declare belief in the existence of God (see section on religious minorities below).
The Free Speech Clause. Although these three clauses represent the constitutional provisions that explicitly protect religious freedom, they are probably not the most frequently invoked protections. Because so much religious activity entails speech or communication, and because of the Supreme Court’s reluctance to apply the Free Exercise Clause vigorously in recent years, the Free Speech Clause of the First Amendment has played an especially prominent role in the constitutional protection of religious freedom.7 The Supreme Court has rebuffed repeated attempts to exclude religious speech from the protection of the Free Speech Clause, citing the nation’s early history of suppressing unpopular religious views.8
What precisely have these protections amounted to, as interpreted by the courts and by Congress? Over the years, several core understandings of the constitutional protection of religion have emerged.
No religious coercion. The Supreme Court has interpreted the Free Speech Clause to prohibit American governments from coercion in religious speech. They may not compel citizens to engage in religious speech or compel any speech that would violate religious conscience.9 Nor may the government exclude speech from a governmental forum simply because it reflects a religious viewpoint.10 Finally, under the Free Speech Clause, religious organizations enjoy at least the same right as secular “expressive associations” to choose people for leadership and membership in their group based on whether those people share the views the group exists to express.11
The Supreme Court has also construed the Establishment Clause to bar the government from coercing citizens to participate in religious services, adopting a very broad conception of what it means to “coerce” participation.12 The Establishment Clause has also been understood to forbid forced tithing, particularly for the funding of seminaries, which has been a controversial practice of governments with established churches.13 More broadly, the court has acknowledged the principle that citizens should not be forced through taxation to provide direct financial support to religious instruction or worship with which they may disagree.14 This represents a narrow exception to the general rule that citizens may not sue the government based on objections to its use of their tax money.15 The court has ruled, however, that the government must not go so far as to exclude religious people or institutions from government benefits simply because of their religious status or beliefs, lest it engage in religious discrimination.16
On the other hand, the Establishment Clause does not prevent the government from funding the secular activities of religious people or institutions.17 Nor does the Establishment Clause forbid the government from providing funds or services that may benefit or support religious instruction or worship incidentally or indirectly.18 Accordingly, the Supreme Court has repeatedly allowed government-funded educational benefits to be used to advance religious education, so long as the benefits are offered to the religious and nonreligious alike, and the decision to use the benefits for religious purposes is the individual’s, not the government’s.19
No governmental religious indoctrination. This prohibition is based on the principle against compelling taxpayers to support religious instruction, as discussed above, as well as two related principles: that government is theologically incompetent,20and that government should not take sides in religious controversies or otherwise insert itself into religious affairs.21 In practice, these principles have been taken to prohibit school-sponsored religious instruction or worship in public schools,22 and the direct public funding of religious instruction or worship in religious schools.23
Importantly, the prohibition of government indoctrination does not forbid the government from providing instruction in public schools about the Bible, Christianity, or other religions from a secular and nondevotional perspective.24 Although the Supreme Court made clear almost 50 years ago—at the same time it struck down government-sponsored devotional studies—that the government may fund and provide education about religion, public schools have not offered such instruction widely, and court cases have been few. But in recent years, various groups have offered Bible curricula designed to comply with constitutional requirements for use in public schools, so litigation on whether the curricula succeed in meeting those standards is likely to follow.
No government endorsement of religion. More recently and controversially, the Supreme Court has interpreted the Establishment Clause to forbid the government from “endorsing” religion. This prohibition has emerged over the last 20 years or so, mainly at the initiative of Justice Sandra Day O’Connor and mainly in the context of government-sponsored religious expression on public property, such as Christmas and Hanukkah displays and monuments representing the Ten Commandments.25Under the endorsement doctrine, courts will inquire whether a hypothetical “reasonable observer,” who is familiar with the full history and context of the religious expression at issue, would deem the government to have endorsed one, some, or all religions. This test has been criticized for relying too heavily on the idiosyncratic judgments of individual justices, and for the corresponding inconsistent results and lack of predictability, which, in turn, provide fertile ground for litigation.
The Supreme Court has specified that the government is not prohibited from expression that reflects or acknowledges the religiosity of the American people. The Constitution does not require the government to adopt an attitude of “callous indifference” to the faiths of its people, or to feign ignorance of them.26 The Establishment Clause also does not forbid the government from expressing or engaging in a minimalist “civil religion,” which is marked by references to a generic “God” or “Creator,” usually as the source and guarantor of the inalienable rights of citizens.27 Although these general principles are well settled, particular controversies continue to rage over how the principles should be applied, most notably in the recent (and ongoing) constitutional challenge to the presence of the two words “under God” in the Pledge of Allegiance.28
No interference in church affairs. Since at least its 1872 decision in Watson v. Jones, the Supreme Court has held that civil courts lack the competence or jurisdiction to decide matters of theology, church discipline, ecclesiastical government, or the standards applied to church members.29 This principle is most often applied to employment-discrimination disputes, in which civil plaintiffs ask the state to gainsay the decisions of religious organizations to hire, fire, promote, or demote ministers and others who formulate or transmit religious doctrine. In this context, the doctrine is commonly called the “ministerial exception” to whatever employment law is applied.30 More broadly, though, it is called the “church autonomy doctrine,” and it protects a wide range of ecclesial decisions from government interference, including decisions regarding the allocation of church property.31
This doctrine has recently been invoked—and its limits have been disputed—in cases where ministers have been charged with sexual abuse and their churches have been accused of failing to oversee and manage those ministers and to report allegations of abuse. Importantly, the church autonomy doctrine only limits liability or damages for certain tort claims against religious organizations, when they are sued on theories of vicarious liability for the acts of their ministers. The doctrine does not offer protection against all (or even most) such claims.32 And, of course, the doctrine does not apply to the abusive ministers themselves, and so does not insulate them from any liability, civil or criminal. Nevertheless, since the sexual abuse scandal in the Roman Catholic Church in 2002, courts have applied these religious freedom principles less consistently, weakening them more broadly.
No governmental religious discrimination. The Religion Clauses forbid governments at all levels from targeting religious people or conduct for special disfavor, whether expressly or covertly. In the jargon of Free Exercise Clause jurisprudence, this is described as the requirement that laws be “neutral” and “generally applicable” with respect to religion. The Establishment Clause provides a similar, if less frequently applied, prohibition against government hostility to religion generally or to specific denominations. More concretely, this means that laws may not discriminate on their face with respect to religion; laws that are facially neutral may not be selectively applied against the religious; the government cannot prohibit conduct because of its religious motivation; and people or groups cannot be denied the protection of the law—or be excluded from participation in government functions or from access to government benefits—based on their religious status or views.33
No substantial burdens on religious exercise. The Free Exercise Clause also prohibits the government from imposing nondiscriminatory, incidental burdens on religious exercise, but this prohibition only applies under certain circumstances. The burden must be “substantial” rather than a mere inconvenience, and must be applied in one of two types of cases. In the first, the system for imposing burdens is highly discretionary or exception ridden, which courts call a “system of individualized assessments.” Although the precise meaning of this term is hotly contested, the classic “systems of individualized assessments” are zoning-permit decisions, in which burdens are imposed on religious gatherings based on vague criteria such as whether the gatherings are “consistent with the general plan” or “consistent with neighborhood character.” The second type of situation in which “substantial burdens” are forbidden is one where additional fundamental rights—such as freedom of speech, of assembly, or to direct the religious upbringing of children—are implicated.34 Courts describe these situations as involving “hybrid rights,” and once again, the scope of this doctrine is unclear and frequently litigated in the lower courts.
Given these many protections, it is not surprising that religion in the United States today is highly diverse, and that members of religious minorities enjoy a degree of freedom and equality with members of mainstream religions that is remarkable by world standards. But these protections evolved over many years, the result of a long and difficult legal and cultural struggle. As late as 1870, for example, Jews and other religious minorities could not vote or hold political office in all states. Accommodations for Orthodox and Hasidic Jews remain controversial to this day.35 The persecution of Mormons in the nineteenth century entailed not only human but judicial atrocities.36 The experience of Native Americans has been similar in that respect.37
Catholics were singled out for special disfavor in the mid- to late nineteenth century, when waves of largely Catholic immigrants prompted political backlash and strong nativist sentiment. The anti-Catholic “Know-Nothing” party briefly gained prominence in the 1850s in Massachusetts. While the party is today little more than a historical footnote, its activities had a lasting impact on the shape of American law more broadly. In that era, Massachusetts amended its state constitution to prohibit government aid to “sectarian” schools and other institutions. The amendment was designed to deny government aid to Catholic schools, while permitting it to continue to flow to the “common schools,” which taught the “common religion” of “nonsectarian” Protestantism. Similar amendments that were subsequently passed in other states came to be called “Blaine Amendments,” named after the congressman who tried and failed to enact one at the federal level.38 These amendments remain the law in more than 30 states, and have been invoked in the present day to block school-choice programs that would allow students and their parents to direct public money to “sectarian” schools and, less frequently, to prevent government from contracting with faith-based social service providers to help the needy.
By the late nineteenth century, barriers to political participation by Jews and Catholics were removed (except for required religious oaths, which were invalidated in 1961 as previously noted). In the middle of the twentieth century, the Supreme Court began to construe the Free Exercise and Free Speech Clauses as protecting unpopular religious and political viewpoints. This significantly improved the status of religious minorities. The Jehovah’s Witnesses, a relatively new and decidedly unpopular group, won a series of legal victories from the 1930s through the 1960s, establishing strong free speech and free exercise precedent in the process. Most notable is their victory in West Virginia State Bd. of Educ. v. Barnette (1943), in which the Supreme Court struck down mandatory recitation of the Pledge of Allegiance in public schools. While this victory did not immediately end the social and political ostracism of Jehovah’s Witnesses, it did reinforce the broader ideal of religious freedom that serves that religious minority and so many others.
The Free Exercise Clause has been foundational to the protection of religious minorities. The Supreme Court’s decision in Church of the Lukumi Babalu Aye v. City of Hialeah (1993) is an excellent, relatively recent example of this principle at work. There, the court struck down a series of local ordinances that did not mention religion or a particular religious sect on their face, but which nonetheless targeted a small and unpopular religious group, Santeria worshippers. The ordinances were written so that they prohibited animal sacrifice in religious rituals, a feature of Santeria worship, while allowing the killing of animals for various other purposes, such as for food, hunting, and pest control.
Religious Freedom Today: Two Conflicts
In recent years, two controversies have emerged that run to the foundation of the American tradition of religious liberty, and how they are resolved by the Supreme Court will have a profound impact on the character of American government and society for years to come. One relates to the fundamental scope of the Free Exercise Clause: how much religious accommodation may (or must) the government provide, and is it up to the courts, the political branches, or both to decide? The other is the growing conflict between the freedom of religious groups to define their membership and message without government interference, and antidiscrimination statutes that would punish religious groups for making decisions on religious or, increasingly, moral criteria.
The Scope of Protection for Religious Exercise. What happens when a law that does not target religion for special disfavor still imposes a heavy burden on religious exercise? For example, if a county generally prohibits the use of alcohol, could Jews or Catholics be prosecuted for using wine in a seder or mass? If they were prosecuted, could they obtain an exception to the general law in court under the Free Exercise Clause, or would their only recourse be to suffer the penalty this time, and to attempt to revoke or obtain an exception to the rule through the political process? And if they succeeded in obtaining an exception from the legislature or executive, would that represent special favor to religion in violation of the Establishment Clause?
These questions are central to the current debate over religious liberty in the United States today, but they began to emerge in 1963, when the Supreme Court decided Sherbert v. Verner. In that case, the court set forth a general test under the Free Exercise Clause such that anytime a law imposed a “substantial burden” on religious exercise, courts should apply “strict scrutiny” to that burden. That is, courts should strike down the law as unconstitutional unless the government could prove that the burden represented the means “least restrictive” of religious exercise to serve a “compelling governmental interest.” In 1990, in Employment Division v. Smith, the court revisited Sherbert and narrowed the scope of application of its “substantial burden” test to the two situations discussed above (i.e., where the burdens are imposed through “systems of individualized assessments,” or in “hybrid situations” implicating additional fundamental rights).
Outraged by Smith’s limitation of Sherbert, Congress responded by passing the Religious Freedom Restoration Act of 1993 (RFRA), which was designed to restore application of Sherbert’s strict scrutiny to every “substantial burden” on religious exercise, not just those involving “individualized assessments” or “hybrid” rights. Several states followed the federal government’s lead, passing laws that mirrored RFRA.39 Some states also interpreted their constitutions so that their free exercise protections maintained the stricter Sherbert standard, providing broader protection than the federal First Amendment after Smith, and eliminating the need for any state-level RFRA.40
Yet the legal battle continued. In 1997, in City of Boerne v. Flores, the Supreme Court struck down RFRA as applied to state and local governments, on the theory that it exceeded the federal government’s power under the Fourteenth Amendment to enforce civil rights protections. The court faulted RFRA for two main reasons. First, it was too broad in application, covering every area of law rather than targeting certain problem areas. Second, RFRA was unsupported by any legislative record that might indicate a need for heightened protection of religious exercise. (Importantly, the rationale of Boerne did not prevent RFRA from being applied to the federal government, and in 2006 the Supreme Court applied RFRA with force to block a federal drug prosecution in Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal.)
Congress went back to the drawing board with these principles in mind, and the result was the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The statute was narrower in scope—covering only zoning and prison regulations that burdened religious exercise—and was supported by a substantial legislative record indicating that religious discrimination and excessive burdens on religious exercise were widespread in those areas of law.
RLUIPA elicited a series of constitutional challenges, none of which have succeeded to date. In 2005, in a unanimous decision written by Justice Ruth Bader Ginsburg, the Supreme Court in Cutter v. Wilkinson resoundingly rejected an Establishment Clause challenge to the prison provisions of RLUIPA. The theory of the challenge was that laws specially deregulating religion and religion alone represent an impermissible benefit to religion. But as the court explained, if this understanding of the Establishment Clause prevailed, “all manner of religious accommodations would fall.” And as Justice William O. Douglas wrote in Zorach v. Clauson (1952), not only are such accommodations permissible, but the government in providing them “follows the best of our traditions,” because it “respects the religious nature of our people and accommodates the public service to their spiritual needs.”
The ability of citizens to secure religious accommodations through the political branches thus remains secure, and continues to serve as an indispensable bulwark of religious freedom in the United States. But this is not a complete solution to the problem. Due to the nature of the political process, only those religious accommodations that earn the support of a majority will be enacted by the political branches. So in practice, the substantial withdrawal of the judiciary from the business of religious accommodation operates to the disadvantage of religious minorities, i.e., those who are both more likely to have idiosyncratic needs and less likely to have the political muscle necessary to secure a legislative or executive accommodation.
Moreover, the minorities that suffer for lack of judicial intervention are not only national minorities, but local ones. Of course, religious groups that are minorities both nationally and locally are worst off under Smith. But religious groups that are well-represented nationally routinely find themselves unable to secure political exceptions to religiously burdensome state or local laws because they are politically weak in those particular places. In this way, Smith hurts religious minorities all of the time and larger groups some of the time.
The Supreme Court’s decision in Smith remains among its most controversial, and ongoing litigation under RLUIPA and RFRA may well provide the court with an occasion to reconsider that decision and, along with it, the scope of protection afforded under the Free Exercise Clause.
Church Autonomy or Antidiscrimination? As described above, the Constitution prohibits government from engaging in religious discrimination, and statutes may reinforce that protection by providing an additional measure of accommodation and deregulation. But statutes perform another important religious-freedom function in American law. Federal, state, and local governments have established a broad network of statutory prohibitions against religious discrimination by private actors in a wide range of economic activities—most notably employment, but also housing, public accommodations, education, and many others. These laws were passed principally to combat racial discrimination, but they almost always prohibit discrimination based on religion as well. Foremost among these statutes is Title VII of the Civil Rights Act of 1964, the federal protection against discrimination in employment.
These laws provide an important protection for the religious liberty of individuals, in that they prevent people from having to choose between observing their faith and making a living, finding housing, or having access to various goods and services in the marketplace. But the laws pose a risk to religious organizations by interfering with their ability to choose their members and leaders based on religion. So, for example, a synagogue must be able to consider religion in its decision to hire or fire its rabbi. In order to respect this important right, Title VII (like most of its state-level analogs) exempts religious organizations from the otherwise applicable prohibition on religious discrimination.41
Recently, this tension between antidiscrimination statutes and the right of religious organizations to choose members and leaders based on religion has come to the fore in two controversial areas: the faith-based initiative and gay rights.
First, when the government purchases social services from a religious organization, some have argued that the organization waives its right to hire based on religion, on the theory that government should not fund “discrimination.” Others argue that the “discrimination” government would fund in this context is not pernicious, but constitutionally protected activity that is indispensable for any religious organization (or, indeed, any expressive association) to maintain its message and mission over time.
Second, religious groups that teach that homosexual conduct is immoral—and correspondingly hire and fire employees based on their agreement with that teaching—will likely find themselves at odds with the growing number of laws prohibiting discrimination based on sexual orientation. Additionally, in jurisdictions where same-sex marriage is legal, religious groups whose convictions prevent them from treating legally married same-sex couples exactly like legally married different-sex couples will face an additional layer of conflict.
In both contexts, the disputes are only beginning to percolate through the courts, and it remains unclear how they will ultimately be resolved.
Comparisons to Other Democracies
The great number and vitality of American religious organizations and the religiosity of the American people are all unusual among industrialized Western nations. America is highly religious even compared to Western European nations, such as the United Kingdom and Norway, that have maintained state churches for generations; these churches, either despite or because of their governmental support, have only weakened over time.42
But it is not simply the absence of an established church that appears to have served religious Americans so well. The American system has eschewed the extreme church-state separation of some of its European counterparts, in part because its simultaneous commitments to free speech and free exercise require toleration of even unpopular religious speech in the public square. The laïcité laws in France, for example, prohibit even private religious expression on government property, such as the wearing of religious garb (hijab, turbans, and prominent crosses) by students in public schools.
In short, the twin policies of non-establishment and the special deregulation of religion have helped to flourish not only religious Americans and their institutions, but American government and society more broadly as well.
1 See, e.g., Edward A. Tiryakian, “American Religious Exceptionalism: A Reconsideration,” Annals of the American Academy of Political and Social Science 527 (May 1993): 40, 43–45 (describing this “exceptionalism” and collecting sources).
2 See, e.g., Md. Const. Art. XXXIII (1776); Va. Const. § 16 (1776); N.J. Const. Art. XIX (1776); N.Y. Const. Art. XXVIII (1777).
3 John Witte, Religion and the American Constitutional Experiment, 2nd ed. (Boulder: Westview Press, 2005), 80–89.
4 At the time, the United States had no standing army, so all able-bodied men were expected to serve in their local militia. Militias could be called up in a time of war to create a national army. See Kevin Seamus Hasson, The Right to Be Wrong (San Francisco: Encounter Books, 2005), 49–52 (discussing history of conscientious objection in the colonies).
5 The degree to which conduct (as opposed to pure belief) is protected has varied over time. See, e.g., Reynolds v. United States, 98 U.S. 145, 166 (1878) (“Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”)
6 In the 1960s, the Supreme Court enlarged conscientious objection (CO) status to cover nonreligious objectors who demonstrated a deeply held moral view that all war is wrong. The court refused to extend CO status to those who opposed only a particular war, or opposed the war on political or pragmatic grounds.
7 Murdock v. Pennsylvania, 319 U.S. 105, 108–09 (1943) (listing “hand distribution of religious tracts,” “worship in the churches and preaching from the pulpits” as religious activities enjoying Free Speech and Free Exercise protections).
8 Capitol Square Rev. Bd. v. Pinette, 515 U.S. 753, 760 (1995) (declining to exclude religious speech from free speech protections, noting that “in Anglo-American history, at least, government suppression of speech has so commonly been directed precisely at religious speech that a free-speech clause without religion would be Hamlet without the prince”).
9 See, e.g., West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (striking down mandatory Pledge of Allegiance).
10 Good News Club v. Milford Central Sch., 533 U.S. 98 (2001) (applying Free Speech Clause to strike down public school’s exclusion of Christian group from school facilities based on religious viewpoint); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (applying Free Speech Clause to strike down state university’s exclusion of Christian group from participation in student activity fees based on religious viewpoint); Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993) (applying Free Speech Clause to strike down public school’s exclusion of Christian group from school facilities based on religious viewpoint); Widmar v. Vincent, 454 U.S. 263 (1981) (applying Free Speech Clause to strike down state university’s exclusion of Christian group from school facilities based on religious viewpoint).
11 Boy Scouts v. Dale, 530 U.S. 640 (2001) (applying Free Speech Clause to protect the right of the Boy Scouts to exclude from leadership those who disagree with the Scouts’ views on sexual morality).
12 See, e.g., Lee v. Weisman, 505 U.S. 577 (1992) (striking down nondenominational prayer at public high school graduation as “coercive,” where participation in ceremony was voluntary and where students were not required to listen to or recite prayer, but only to be silent).
13 See Locke v. Davey, 540 U.S. 712, 722 (2004) (“Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an ‘established’ religion.”)
14 See Doremus v. Board of Education, 342 U.S. 429 (1952); Flast v. Cohen, 392 U.S. 83 (1968); Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464 (1982).
15 See, e.g., DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854, 1865 (2006) (reaffirming general rule against taxpayer standing). The scope of the Flast exception to the general rule against taxpayer standing is, at the time of this writing, pending before the Supreme Court: Hein v. Freedom from Religion Foundation, No. 06-157, cert. granted, 127 S. Ct. 722 (December 1, 2006).
16 McDaniel v. Paty, 435 U.S. 618 (1978) (applying Free Exercise Clause to strike down state constitution’s exclusion of ministers from participation as delegates in state constitutional convention); Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995) (applying Free Speech Clause to strike down state university’s exclusion of Christian group from participation in student activity fees based on religious viewpoint).
17 See Tilton v. Richardson, 403 U.S. 672 (1971) (rejecting claim that Establishment Clause prohibits government funding of buildings used for teaching secular subjects at a religious university).
18 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (distinguishing direct and indirect government funding of activities by religious institutions, and allowing indirect aid to fund even religious instruction consistent with Establishment Clause); Everson v. Board of Education, 330 U.S. 1, 17–18 (1947) (“Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks. Of course, cutting off church schools from these services, so separate and so indisputably marked off from the religious function, would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment.”)
19 See Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986) (allowing vocational assistance for the blind); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (allowing sign-language interpreter); Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (allowing tuition vouchers).
20 See, e.g., Watson v. Jones, 80 U.S. 679, 728 (1871) (“The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”); West Virginia State Bd. of Education v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”)
21 See, e.g., Thomas v. Review Board, 450 U.S. 707, 717 (1981) (“Courts are not arbiters of scriptural interpretation.”) See also Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) (First Amendment assures “a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”)
22 See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987) (striking down law requiring “balanced treatment” of evolution and creationism in public schools); Epperson v. Arkansas, 393 U.S. 97 (1968) (striking down law prohibiting teaching of evolution in public schools and universities); School Dist. of Abington v. Schempp, 374 U.S. 203 (1963) (striking down daily Bible reading and recitation of Lord’s Prayer in public schools); Engel v. Vitale, 370 U.S. 421 (1962) (striking down teacher-led recitation of “Regents’ prayer” in public school).
23 See, e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973) (applying Establishment Clause to strike down various forms of direct state aid to parochial schools).
24 See Abington Twp. School Dist. v. Schempp, 374 U.S. 203, 225 (1963) (“It might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.”); Stone v. Graham, 449 U.S. 39, 42 (1980) (noting that “the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like”).
25 See, e.g., Van Orden v. Perry, 544 U.S. 677 (2005) (upholding Ten Commandments display); McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) (striking down Ten Commandments display); Allegheny County v. ACLU of Pittsburgh, 492 U.S. 573 (1989) (upholding holiday display consisting of crèche and menorah, but striking down crèche-only display); Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding display consisting of crèche and secular elements).
26 Lynch v. Donnelly, 465 U.S. 668, 673 (1984) (quoting Zorach v. Clauson, 343 U.S. 306, 314 ).
27 See Marsh v. Chambers, 463 U.S. 783 (1983) (rejecting Establishment Clause challenge to legislative prayer because it represents permissible “civil religion”). See also Declaration of Independence, preamble (the people are “endowed by their Creator with certain unalienable rights,” which governments are instituted to secure).
28 See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (rejecting for lack of standing Establishment Clause challenge to “under God” in Pledge of Allegiance); Newdow v. Congress of the United States, 383 F. Supp. 2d 1229 (E.D. Cal. 2005) (accepting Establishment Clause challenge to “under God” in Pledge of Allegiance), on appeal sub nom., Newdow v. Carey, Nos. 05-17257, 05-17344, 06-15093 (9th Cir.).
29 Watson v. Jones, 13 Wall. 679, 733 (1872).
30 Two recent appellate court decisions applying the ministerial exception, Petruska v. Gannon University, 462 F.3d 294 (3d Cir. 2006), and Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036 (7th Cir. 2006) (Posner, J.), provide excellent explanations of the exception and the legal principles underlying it.
31 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952) (“church autonomy doctrine” “a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine”). See also Jones v. Wolf, 443 U.S. 595, 608 (1979) (court proceedings “involv[ing] considerations of religious doctrine and polity” unacceptable).
32 See, e.g., Mark E. Chopko, “Stating Claims Against Religious Institutions,” Boston College Law Review 44 (2003): 1089.
33 See, e.g., McDaniel v. Paty, 435 U.S. 618 (1978) (striking down prohibition on clergy participation in state constitutional convention); Torcaso v. Watkins, 367 U.S. 488 (1961) (striking down requirement of religious oath to hold public office).
34 See Employment Div. v. Smith, 494 U.S. 872, 881, 884–85 (1990).
35 See Kiryas Joel v. Grumet, 512 U.S. 687 (1994) (applying Establishment Clause to strike down public school district designed to accommodate Orthodox Jewish religious requirements); Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144 (3d Cir. 2002) (applying Free Exercise Clause to strike down local government denial of permission to erect eruv, or ceremonial barrier to facilitate Orthodox Jewish observance of the Sabbath); Grosz v. City of Miami Beach, 82 F.3d 1005 (11th Cir. 1996) (rejecting Free Exercise Clause challenge to denial of permission to gather for Orthodox Jewish worship).
36 See, e.g., Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) (upholding federal statute dissolving charter of Mormon church and seizing its property).
37 See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) (upholding federal administrative decision to build paved road through land sacred to Native Americans).
38 The Blaine Amendments are named after Representative James G. Blaine, who as Speaker of the House of Representatives attempted to pass a constitutional amendment banning public aid to sectarian institutions. The amendment failed at the national level, but similar amendments passed in many states.
39 Those 13 states are Alabama, see Ala. Const. amend. 622; Arizona, see Ariz. Rev. Stat. Ann. §§ 41-1493 et seq. (West 2003); Connecticut, see Conn. Gen. Stat. Ann. § 52-571b (West 2003); Florida, see Fla. Stat. Ann. §§ 761.01-761.04 (West 2003); Idaho, see Idaho Code §§ 73-401 et seq. (Supp. 2002); Illinois, see 775 Ill. Comp. Stat. Ann. §§ 35/1-35/99 (West 2002); Missouri, see V.A.M.S. §§ 1.302 & 1.307 (West 2004); New Mexico, see N.M. Stat. Ann. §§ 28-22-1 to 28-22-5 (Michie 2002); Oklahoma, see Okla. Stat. Ann. tit. 51, §251 (West 2003); Pennsylvania, 71 Pa. Cons. Stat. Ann. 2401 et seq.; Rhode Island, see R.I. Gen. Laws §§ 42-80.1-1 to 42-80.1-4 (2001); South Carolina, see S.C. Stat. Ann. § 1-32-10 (Law. Co-op. 1999); and Texas, see Tex. Civ. Prac. & Rem. Code Ann. §§ 110.001 et seq. (West 2003).
40 See, e.g., Humphrey v. Lane, 728 N.E.2d 1039 (Ohio 2000); In re Browning, 476 S.E.2d 465 (N.C. 1996); State v. Miller, 549 N.W.2d 235 (Wis. 1996); Attorney Gen. v. Desilets, 636 N.E.2d 233 (Mass. 1994); Swanner v. Anchorage Equal Rights Comm’n, 874 P.2d 274 (Alaska 1994); Rourke v. N.Y. State Dep’t of Corr. Servs., 603 N.Y.S.2d 647 (N.Y. Sup. Ct. 1993), aff’d, 615 N.Y.S.2d 470 (N.Y. App. Div. 1994); Rupert v. City of Portland, 605 A.2d 63 (Me. 1992); St. John’s Lutheran Church v. State Comp. Ins. Fund, 830 P.2d 1271 (Mont. 1992); First Covenant Church of Seattle v. City of Seattle, 840 P.2d 174 (Wash. 1992); State v. Evans, 796 P.2d 178 (Kan. 1990); State v. Hershberger, 462 N.W.2d 393 (Minn. 1990).
41 This exemption was challenged under the Establishment Clause, on the theory that it provided a benefit to religious employers without simultaneously benefiting secular ones. The Supreme Court rejected that theory in Corporation of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).
42 See, e.g., Frank Bruni, “Faith Fades Where It Once Burned Strong,” New York Times, October 13, 2003 (discussing decline of religious affiliation, particularly among established churches, in Western Europe).