Kara Sears
The First Amendment of the US Constitution has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the government from establishing a religion, while the Free Exercise Clause protects citizens' right to practice their religion without interference from Congress, as long as it does not conflict with public morals or a compelling governmental interest. These clauses have been the subject of numerous court cases, including Engel v. Vitale, Burwell v. Hobby Lobby, and Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, shaping how we understand what constitutes a law respecting religion.
| Characteristics | Values |
|---|---|
| Law respecting an establishment of religion | Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. |
| Free Exercise Clause | Protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of "public morals" or a "compelling" governmental interest. |
| Establishment Clause | Prohibits the government from "establishing" a religion. |
| Lemon test | The government can assist religion only if (1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state. |
| Religious discrimination | Treating a person unfavorably because of their religious beliefs. |
| Harassment | Offensive remarks about a person's religious beliefs or practices. |
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What You'll Learn
The Establishment Clause
Today, the Establishment Clause is often interpreted using the three-part test set forth by the US Supreme Court in Lemon v. Kurtzman (1971). This test allows the government to assist religion only if:
- The primary purpose of the assistance is secular
- The assistance neither promotes nor inhibits religion
- There is no excessive entanglement between church and state
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The Free Exercise Clause
However, the Free Exercise Clause is not absolute. The Supreme Court has interpreted limits to this clause, allowing the government to legislate against certain religious practices that conflict with "public morals" or a "compelling" governmental interest. For example, the Supreme Court has upheld laws prohibiting bigamy and peyote use, even when these practices are rooted in religious beliefs.
The interpretation and application of the Free Exercise Clause have evolved over time. In recent years, the Court has adopted a more restrictive view of the protections offered by this clause. This shift in interpretation has resulted in a narrower scope of religious freedoms. For instance, in the "Hobby Lobby" case, the Court declined to apply the Free Exercise Clause to strike down a law requiring for-profit corporations to provide certain contraceptives in their healthcare packages, despite the religious objections of the company's owners.
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Religious discrimination law
The First Amendment of the US Constitution has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment Clause prohibits the US Congress and state legislatures from "establishing" a religion. This means that the government cannot favour one religion over another, nor can it promote or inhibit religion in general. The precise definition of "establishment" is unclear, but the Supreme Court has interpreted this clause to allow the government to assist religion under certain conditions: the primary purpose of the assistance must be secular; the assistance must neither promote nor inhibit religion; and there must be no excessive entanglement between church and state.
The Free Exercise Clause protects citizens' right to practice their religion as they please, as long as the practice does not conflict with "public morals" or a "compelling" governmental interest. This clause also protects individuals from laws that would expressly inhibit them from engaging in religious practices. However, the Supreme Court has interpreted limits to this clause, allowing the government to legislate against certain religious practices, such as bigamy and peyote use.
In the context of religious discrimination law, the Free Exercise Clause protects individuals from being treated unfavourably because of their religious beliefs or practices. This includes not only members of traditional, organized religions but also those with sincerely held religious, ethical, or moral beliefs. Religious discrimination can occur in various aspects of employment, such as hiring, firing, pay, promotions, and job assignments. It is also illegal to harass an individual because of their religion, and harassment can include offensive remarks or behaviour that creates a hostile or offensive work environment.
The Supreme Court has addressed religious discrimination in several cases. In Burwell v. Hobby Lobby, the Court struck down a law requiring for-profit corporations to provide certain contraceptives as part of their healthcare packages, as it conflicted with the religious beliefs of the company's owners. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Court set aside state administrative proceedings enforcing anti-discrimination laws against a baker who refused to make a cake for a same-sex wedding, finding that the state had not considered the baker's religious beliefs with the required neutrality.
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Religious freedom in the workplace
Undue hardship is determined by considering the overall context of the employer's business, including the accommodation's practical impact on factors such as cost, workplace safety, efficiency, and the rights of other employees. For example, an employer does not have to accommodate religious practices if doing so requires other employees to unwillingly take on hazardous or burdensome work.
State and local laws may provide additional protections. For instance, they may cover employers with fewer than 15 employees, and employees of local, state, or federal governments may have further legal protections. Additionally, the federal Fair Housing Act prohibits religious discrimination in housing, ensuring that individuals cannot be denied housing or receive unfavourable terms due to their religion.
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The Lemon test
The three prongs of the Lemon Test are:
- The law must have a secular purpose. This does not mean that a law's purpose must be unrelated to religion, but rather that it must be neutral and not act with the intent of promoting a particular point of view in religious matters.
- The primary effect of the law must neither advance nor inhibit religion. This means that the law should not have the effect of supporting or opposing religion, either directly or indirectly.
- The law should not foster "excessive entanglement" between government and religion. This prong of the test has been interpreted to mean that the law should not create an impermissible relationship between the government and religious institutions, and that it should not result in political division or "political divisiveness," which is considered a "principal evil" that the First Amendment was designed to prevent.
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Frequently asked questions
The Establishment Clause is a provision in the First Amendment that prohibits the government from establishing a religion. This means that the government cannot favour one religion over another, nor can it promote or inhibit religion in general.
The Free Exercise Clause is another provision in the First Amendment that protects citizens' right to practice their religion. This clause ensures that individuals are free to believe and practice their religion as they see fit, as long as it does not conflict with "public morals" or a "compelling" governmental interest.
Religious discrimination is the act of treating someone unfavorably due to their religious beliefs or their association with someone of a particular religion. This can include harassment, such as offensive remarks about one's religious beliefs, or adverse employment decisions, such as firing or demotion.
The Supreme Court has interpreted that certain religious practices, such as bigamy and peyote use, can be legislated against. Laws that burden religion but are neutral and generally applicable, such as anti-discrimination laws, are generally upheld. However, laws that impose special burdens on religious activities may violate the Free Exercise Clause and trigger heightened scrutiny.
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