法律英语 Legal Lad 2012 Constitution 101: Freedom of Religion
Today’s Topic: Constitution 101 – Freedom of Religion
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Constitution 101
This is the fourth installment of a new series on the U.S. Constitution. In our first three episodes, we discussed the basic framework that the Constitution establishes for the federal government.
In this episode we start reviewing the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Matters.
Sponsor: The podcast version of this article is brought to you by Stitcher. With free Stitcher SmartRadio, you can listen to this and thousands of other podcasts on your mobile phone. Use promo code “Legal” and get a chance to win a cash prize.
The First Amendment
The first ten amendments – or Bill of Rights – were ratified in 1791, just two years after the Constitution itself. The First Amendment covers freedom of religion, as well as freedom speech and the press, which we’ll discuss in the next episode. The amendment starts off as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .”
Note that the amendment applies only to Congress -- "congress shall make no law, etc." it doesnt say anything about the states. In fact, the entire Bill of Rights was originally drafted as a series of restrictions on the power of the federal government. It was only in the twentieth century that the Supreme Court began to apply the Bill of Rights to the states using the so-called incorporation doctrine, which we'll address in a later episode.
The First Amendment contains two distinct clauses dealing with religious liberty: they are known as the “Establishment Clause” and the “Free Exercise Clause.” I’ll summarize each of them in turn.
The Establishment Clause
The Establishment Clause is the part that says “Congress shall make no law respecting an establishment of religion." You might wonder what, exactly, “an establishment of religion” means. An established church was a concept well known to the Founding Fathers – most notably in the form of England’s established Anglican Church. But when the Constitution was ratified, some of the American states also had established churches, or at least provided public support to certain churches. Other states prohibited state involvement in religion. That’s why the First Amendment prohibits Congress from making laws “respecting” an establishment of religion. The idea was that Congress shouldn’t interfere one way or another with state laws on establishments.
Over time, however, the Establishment Clause has been interpreted as requiring government neutrality in religious matters at both the federal and state levels. Since 1947, the Supreme Court has held that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers.” Thus, for example, parents have often sued local schools for favoring prayer or other religious observances (as I discussed in an earlier episode). In the 1962 case of Engel v. Vitale, the Supreme Court held that public school teachers may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. Thirty years later, in Lee v. Weisman, the Court also held that schools couldn’t sponsor prayer at a graduation ceremony.
The Establishment Clause has also been used to block religious displays on public property -- such as nativity scenes and menorahs – and even to prevent parole officers from ordering mandatory attendance at Alcoholics Anonymous (I explain why here). Courts have used a variety of standards in assessing Establishment Clause disputes. Some cases hold that public involvement in religion is okay, provided members of the public are not coerced into accepting a particular religion; but other cases say that public officials cannot become “entangled” in religion or appear to “endorse” religion.
The Free Exercise Clause
The second aspect of religious freedom in the Constitution is the guarantee that “Congress shall make no law . . . prohibiting the free exercise [of religion]." The “free exercise” clause is understood to mean that the government generally can’t force a person to violate the tenets of his or her religion. That is why, for example, the government has always recognized the right of conscientious objectors to decline military service, even when there is a draft. There are limits to free exercise, of course – I can’t simply declare that paying taxes is against my religion, unfortunately – but within those limits, Americans are free to practice their religion.
Different standards for state and federal government
The courts have applied various tests to evaluate laws that impinge on freedom of religion. According to a 1990 Supreme Court decision (Employment Division v. Smith), states can enact laws that have the effect of restricting religious liberty so long as the law is “neutral,” that is, it applies generally to all residents of the State and does not particularly target religion. As a practical matter, states accommodate religion all the time. The drinking age, for example, is a “neutral” law, but the police don’t stop children from drinking wine at communion or Passover.
Federal laws that affect religion are governed by a stricter standard, known as the Religious Freedom Restoration Act, or RFRA. Under RFRA, Congress may inhibit the free exercise of religion only if it has a “compelling” interest in doing so, and only if it chooses the “least restrictive” means to go about it.
The Contraception Mandate
One major controversy regarding "free exercise" erupted in January 2012, when the US Department of Health and Human Services unveiled a new rule that will require virtually all employers to provide health insurance that covers contraceptives. This rule – sometimes referred as the “birth control mandate” – is part of the 2010 health care reform law (known as the Affordable Care Act, or ACA). The controversy arises because some employers - particularly religious organizations - object to having to subsidize birth control. The government has provided certain exemptions, but they are relatively narrow. An actual church would not be required to subsidize birth control coverage for its employees, but church-affiliated insitutions such as a university, or hospital, or charity would. A number of lawsuits challenging this regulation are currently pending in federal court.
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.
If there’s a recent college grad or senior on your gift list, give them Quick and Dirty Tips for Life After College! This essential guide gives any student or recent grad the tools they need to bridge the gap between graduation day and the “real world.” It’s not only incredibly useful and practical, it’s cheap! Just $3.99 for a jam-packed ebook. With Quick and Dirty Tips for Life After College, you learn the do’s and don’ts of your first job, how to improve your career prospects, how to organize your life, how to stock a healthy kitchen on a budget, and much more. There’s even a chapter by Legal Lad on the perennial question: Should I go to law school? The ebook is available now on Amazon, Barnes & Noble, and iTunes for just $3.99.
You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.
And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
Constitution 101
This is the fourth installment of a new series on the U.S. Constitution. In our first three episodes, we discussed the basic framework that the Constitution establishes for the federal government.
In this episode we start reviewing the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Matters.
Sponsor: The podcast version of this article is brought to you by Stitcher. With free Stitcher SmartRadio, you can listen to this and thousands of other podcasts on your mobile phone. Use promo code “Legal” and get a chance to win a cash prize.
The First Amendment
The first ten amendments – or Bill of Rights – were ratified in 1791, just two years after the Constitution itself. The First Amendment covers freedom of religion, as well as freedom speech and the press, which we’ll discuss in the next episode. The amendment starts off as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; . . .”
Note that the amendment applies only to Congress -- "congress shall make no law, etc." it doesnt say anything about the states. In fact, the entire Bill of Rights was originally drafted as a series of restrictions on the power of the federal government. It was only in the twentieth century that the Supreme Court began to apply the Bill of Rights to the states using the so-called incorporation doctrine, which we'll address in a later episode.
The First Amendment contains two distinct clauses dealing with religious liberty: they are known as the “Establishment Clause” and the “Free Exercise Clause.” I’ll summarize each of them in turn.
The Establishment Clause
The Establishment Clause is the part that says “Congress shall make no law respecting an establishment of religion." You might wonder what, exactly, “an establishment of religion” means. An established church was a concept well known to the Founding Fathers – most notably in the form of England’s established Anglican Church. But when the Constitution was ratified, some of the American states also had established churches, or at least provided public support to certain churches. Other states prohibited state involvement in religion. That’s why the First Amendment prohibits Congress from making laws “respecting” an establishment of religion. The idea was that Congress shouldn’t interfere one way or another with state laws on establishments.
Over time, however, the Establishment Clause has been interpreted as requiring government neutrality in religious matters at both the federal and state levels. Since 1947, the Supreme Court has held that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers.” Thus, for example, parents have often sued local schools for favoring prayer or other religious observances (as I discussed in an earlier episode). In the 1962 case of Engel v. Vitale, the Supreme Court held that public school teachers may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. Thirty years later, in Lee v. Weisman, the Court also held that schools couldn’t sponsor prayer at a graduation ceremony.
The Establishment Clause has also been used to block religious displays on public property -- such as nativity scenes and menorahs – and even to prevent parole officers from ordering mandatory attendance at Alcoholics Anonymous (I explain why here). Courts have used a variety of standards in assessing Establishment Clause disputes. Some cases hold that public involvement in religion is okay, provided members of the public are not coerced into accepting a particular religion; but other cases say that public officials cannot become “entangled” in religion or appear to “endorse” religion.
The Free Exercise Clause
The second aspect of religious freedom in the Constitution is the guarantee that “Congress shall make no law . . . prohibiting the free exercise [of religion]." The “free exercise” clause is understood to mean that the government generally can’t force a person to violate the tenets of his or her religion. That is why, for example, the government has always recognized the right of conscientious objectors to decline military service, even when there is a draft. There are limits to free exercise, of course – I can’t simply declare that paying taxes is against my religion, unfortunately – but within those limits, Americans are free to practice their religion.
Different standards for state and federal government
The courts have applied various tests to evaluate laws that impinge on freedom of religion. According to a 1990 Supreme Court decision (Employment Division v. Smith), states can enact laws that have the effect of restricting religious liberty so long as the law is “neutral,” that is, it applies generally to all residents of the State and does not particularly target religion. As a practical matter, states accommodate religion all the time. The drinking age, for example, is a “neutral” law, but the police don’t stop children from drinking wine at communion or Passover.
Federal laws that affect religion are governed by a stricter standard, known as the Religious Freedom Restoration Act, or RFRA. Under RFRA, Congress may inhibit the free exercise of religion only if it has a “compelling” interest in doing so, and only if it chooses the “least restrictive” means to go about it.
The Contraception Mandate
One major controversy regarding "free exercise" erupted in January 2012, when the US Department of Health and Human Services unveiled a new rule that will require virtually all employers to provide health insurance that covers contraceptives. This rule – sometimes referred as the “birth control mandate” – is part of the 2010 health care reform law (known as the Affordable Care Act, or ACA). The controversy arises because some employers - particularly religious organizations - object to having to subsidize birth control. The government has provided certain exemptions, but they are relatively narrow. An actual church would not be required to subsidize birth control coverage for its employees, but church-affiliated insitutions such as a university, or hospital, or charity would. A number of lawsuits challenging this regulation are currently pending in federal court.
Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful Life.
If there’s a recent college grad or senior on your gift list, give them Quick and Dirty Tips for Life After College! This essential guide gives any student or recent grad the tools they need to bridge the gap between graduation day and the “real world.” It’s not only incredibly useful and practical, it’s cheap! Just $3.99 for a jam-packed ebook. With Quick and Dirty Tips for Life After College, you learn the do’s and don’ts of your first job, how to improve your career prospects, how to organize your life, how to stock a healthy kitchen on a budget, and much more. There’s even a chapter by Legal Lad on the perennial question: Should I go to law school? The ebook is available now on Amazon, Barnes & Noble, and iTunes for just $3.99.
You can send questions and comments to legal@quickanddirtytips.com. Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.
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