Cameron Miranda
The topic of whether or not states can make laws based on religion is a complex and controversial issue. In the United States, the First Amendment and the Fourteenth Amendment protect religious freedom and ensure that these protections are enforceable against state and local governments. The Supreme Court has interpreted these amendments, applying them to cases involving religious practices and beliefs, such as the Hobby Lobby case and same-sex marriage. The determination of what constitutes a 'religious' belief or practice can be challenging, and the Court has generally adopted a restrictive view of the protections offered by the Free Exercise Clause. This has led to protests and controversy, with critics arguing that these laws enable discrimination, particularly against the LGBTQ+ community.
| Characteristics | Values |
|---|---|
| State laws based on religion | More than a dozen states in the US have considered or passed "religious liberty" laws |
| Religious freedom | Protected by the First Amendment and enforceable against state and local governments |
| Free Exercise Clause | Protects individuals from laws that would expressly inhibit them from engaging in religious practices |
| Limits to the Free Exercise Clause | The government can legislate against certain religious practices, such as bigamy and peyote use |
| Fourteenth Amendment | Makes protections of religious freedom in the First Amendment enforceable against state and local governments |
| Discrimination against religious groups | States cannot prefer some religious groups over others |
| Discrimination against LGBT+ people | Religious liberty laws may enable discrimination against LGBT+ people |
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What You'll Learn
The US Constitution and the First Amendment
The First Amendment to the US Constitution, passed by Congress on September 25, 1789, and ratified on December 15, 1791, explicitly states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". This amendment, which is part of the Bill of Rights, guarantees religious freedom and prohibits the government from establishing an official religion or favouring one religion over another.
The First Amendment's religious clauses, known as the Establishment Clause and the Free Exercise Clause, have been the subject of much interpretation and debate by the courts over the years. The Establishment Clause prohibits the government from establishing an official religion or favouring one religion over another, while the Free Exercise Clause protects the right of individuals to practice their religion without government interference.
Despite these protections, there have been instances where states have passed or considered passing laws that critics argue infringe on religious freedom and enable discrimination. For example, in 2016, Mississippi passed a bill that allowed businesses to refuse service to gay couples based on religious beliefs, sparking opposition from equal rights groups and businesses. Similarly, Tennessee considered a bill that would exempt therapists and counsellors from serving clients if it violated their religious beliefs, which critics argued was an attempt to discriminate against gay people in the wake of same-sex marriage becoming legal.
In interpreting the First Amendment, courts have held that laws directed primarily at status, acts, and conduct, rather than beliefs, may not violate the Free Exercise Clause. For example, in McDaniel v. Paty (1978), the Court held that a state provision barring ministers from serving as delegates to a state constitutional convention did not violate the First Amendment because it disqualified ministers based on their status rather than their beliefs. However, the Court applied a heightened level of scrutiny and still held the law unconstitutional.
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Religious liberty laws
The concept of religious liberty can be traced back to the 13th century, when Genghis Khan enacted a law explicitly guaranteeing religious freedom to all people and religions. The Romans also tolerated most religions, including Judaism, although they did not tolerate Christianity due to its refusal to offer honours to the official cult of the emperor. The term "freedom of religion" (libertas religionis) was first used by the early Christian apologist Tertullian in the 24th chapter of his Apologeticum.
In the United States, the Baptist Joint Committee (BJC) advocates for a "golden rule" of religious liberty, which states that individuals should not ask the government to promote their religion if they do not want the government to promote someone else's, and they should not allow the government to hinder someone else's religion if they do not want their own religion to be hindered. The BJC also emphasises that religious liberty is best protected when the institutions of church and state remain separate.
Despite these protections, there have been instances where states have passed or considered passing "religious liberty" laws that critics argue could enable discrimination, particularly against the LGBT+ community. For example, in 2016, the governor of Mississippi, Phil Bryant, signed a bill (HB1523) that allowed businesses to refuse service to gay couples based on religious beliefs. Similarly, Tennessee considered a bill (Senate Bill 1556) that would exempt therapists and counsellors from serving clients based on "sincerely held religious beliefs or principles". These laws have sparked controversy and protests, with opponents arguing that they legalise discrimination against marginalised communities.
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Religious status vs religious activity
The First Amendment's absolute prohibition of infringements on the 'freedom to believe' does not apply to laws directed primarily at status, acts, and conduct. The determination of what is a 'religious' belief or practice may be a difficult and delicate task, and it may not depend on the government's perception of the particular belief or practice.
In McDaniel v. Paty, a plurality of the Court concluded that a state provision barring ministers from serving as delegates to a state constitutional convention did not operate because of the ministers' beliefs but instead disqualified ministers based on their status. The plurality opinion nonetheless applied a heightened level of scrutiny and held the law unconstitutional. Two Justices would have held that the law unconstitutionally regulated belief.
This case explored the distinction between laws operating based on religious status versus religious activity. Religious status refers to the position or standing of an individual or group within a religious context. It can be influenced by factors such as their role, rank, or relationship to religious institutions or figures. On the other hand, religious activity encompasses a wide range of rituals and practices, including rites of passage, daily worship, and private prayer. These activities can be formal or informal, collective or individual, reflecting both continuity and change in religious practices over time.
While the law may not infringe on the freedom to believe, it is important to note that religious beliefs or activities may sometimes be associated with worse mental health or neurotic behaviour. Clinicians have observed that religion can be utilized in an unhealthy manner or manipulated to serve defensive functions that ultimately impair mental health and prevent healthy growth. For example, religious concerns are common among people with obsessive-compulsive disorders, including fears of sin or God, and viewing the moral status of thoughts as equal to that of actions.
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Religious freedom and the Fourteenth Amendment
The First Amendment to the US Constitution prohibits Congress from making laws that establish a religion or impede the free exercise of religion. This is known as the Free Exercise Clause, which protects individuals from government interference in their religious practices. The Fourteenth Amendment has also been used to claim rights to personal liberty, including religious freedom.
The First Amendment's absolute prohibition of infringements on the 'freedom to believe' does not apply to laws directed primarily at status, acts, and conduct. For example, in McDaniel v. Paty (1978), a Court plurality held that a state provision barring ministers from serving as delegates to a state constitutional convention was unconstitutional, as it disqualified ministers based on their status rather than their beliefs.
Despite the First Amendment, more than a dozen US states have considered or passed "religious liberty" laws, which have sparked controversy and protests. For instance, in 2016, Governor Mike Pence of Indiana signed a bill to prevent the government from "substantially burdening" religious exercise for individuals, organisations, and businesses. However, he later amended the bill to clarify that it could not be used to deny services, housing, or employment based on race, religion, age, sexual orientation, or gender identity.
Another example is Mississippi's HB1523, which allows businesses to refuse service to gay couples based on religious beliefs. Governor Phil Bryant stated that the bill "protects sincerely held religious beliefs and moral convictions". However, protesters argued that it would enable discrimination against the LGBTQ+ community.
In conclusion, while the First Amendment and the Fourteenth Amendment protect religious freedom, there is ongoing controversy and debate regarding the proper division of power between state and national governments in the US.
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Free Exercise Clause
The Free Exercise Clause, commonly identified as the freedom of religion, refers to the first section of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". The clause reserves the right of American citizens to practice any religious belief and engage in religious rituals of their choice. It protects religious beliefs and certain actions made on behalf of those beliefs, as long as they do not conflict with 'public morals' or 'compelling' government interests.
The Free Exercise Clause has been applied broadly and narrowly by the Court at various times. Initially, the First Amendment was only applicable to the US Congress, meaning state and local governments could abridge the Free Exercise Clause if there was no similar provision in the state constitution. However, in 1940, the Supreme Court held in Cantwell v. Connecticut that the Free Exercise Clause is enforceable against state and local governments. This was achieved through the Incorporation Doctrine, which applies the Fourteenth Amendment's due process clause to prevent any state from denying citizens their rights without following laws and fair procedures.
The Free Exercise Clause has been invoked in several cases, including Fowler v. Rhode Island, where the Court asserted that it is not the business of courts to define what constitutes a religious practice or activity. In Braunfeld v. Brown, the Court applied the Free Exercise Clause to economic theory, promoting a free religious market by precluding the taxation of religious activities by minority sects.
Despite the Free Exercise Clause, some US states have passed or considered "religious liberty" laws, sparking controversy and protests. These laws aim to appease religious groups and allow them to refuse services or discriminate based on their religious beliefs. For example, in Mississippi, a bill was signed into law that allows businesses to refuse service to gay couples based on religious beliefs, despite opposition from equal rights groups and businesses. Similarly, in Tennessee, a bill was proposed to exempt therapists and counsellors from serving clients based on their religious beliefs or principles, which critics argue is an attempt to discriminate against gay people.
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Frequently asked questions
The First Amendment of the US Constitution prohibits infringements on the 'freedom to believe'. The Fourteenth Amendment enforces this protection against state and local governments. However, the government can legislate against certain religious practices, such as bigamy and peyote use.
The First Amendment prohibits this. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court set aside state proceedings enforcing anti-discrimination laws against a baker who refused to make a cake for a same-sex wedding.
In Espinoza, the Supreme Court held that a state violated the Free Exercise Clause by excluding religious schools from a tax credit program.
No. In one case, the Supreme Court held that a city violated the First Amendment by applying an ordinance prohibiting certain activities in public parks, treating one religious group differently from others.
Yes, but it is controversial. More than a dozen US states have passed or considered "religious liberty" laws, which critics say enable discrimination, particularly against LGBT+ people.
