Religious Freedoms

Before we turn to the religious freedoms that are protected by the Constitution, we first need to examine what a “religion” is. Chapter 1 discusses what the Supreme Court sees as the minimum requirements for a religion: a sincere, strongly-held belief that the believer has certain moral obligations. This definition took shape through a series of cases in the period between the Second World War and Vietnam War, several of which involved claims to conscientious objector status by persons who disclaimed belief in God. Importantly, the Supreme Court has held that while the sincerity of a person’s belief can be assessed by a court, it cannot evaluate the substantive validity of religious beliefs.

In chapter 2, we turn to the meaning of the Free Exercise Clause. Early on, the Supreme Court drew a distinction between beliefs and actions; only the latter may be regulated, and a person’s belief that a specific action is a religious obligation does not exempt it from state regulation. So what is the purpose of the Free Exercise Clause if it merely restates the truism that government may regulate religious practices only by generally-applicable laws that do not distinguish between religions? The Supreme Court has found two situations where the Free Exercise Clause prohibits the imposition of a cost on the practice of religion. The first is when a person is denied unemployment compensation when they lose a job because its requirements conflict with their religious practices. The second is when teenagers are forced to remain in high school past age 16 when their parents oppose religious objections. In 1990, the Court made it clear that religion never gives a person an exemption from punishment for violating a generally-applicable law. This means that exemptions must be granted by the legislature (conscientious objection to military service, possessing religious objects in a prison) or the executive (not prosecuting minor violations of underage drinking laws) since the Court does not interpret the Constitution as giving it the power to grant such exemptions.

In chapter 3, we examine the confusingly-worded Establishment Clause. Why prohibit laws “respecting an establishment of religion” instead of merely banning laws that “establish religion”? The answer–discussed in this chapter–meant that the Supreme Court would see very few Establishment Clause cases until the middle of the twentieth century, when it would dramatically change the meaning of that clause. The Court refocused the Establishment Clause on the extent to which states can give aid that benefits religion, and its answer has been largely that as long as that aid is not given directly to a religious organization, it can be granted to a person who intends to give it to a religious organization as long as he is not required to do so. The Court has also focused on whether government actions have coerced people into religious activity, which is where it has found most of its Establishment Clause violations. Thus the incorporation of religious elements into public spaces or forums is permissible, especially if they accord with historical uses, as long as they do not coerce observers into becoming participants. The Court is quite wary of adjudicating controversies involving religious principles and prefers to abstain from situations where this would be necessary, such as in the case of anti-discrimination law.