FREEDOM OF RELIGION Limiting Congress to protect both church and state, and the individual’s right to believe The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” These are the “democratic freedoms,” the liberties that the founders believed to be so necessary to ensuring a free and unfettered people that they crammed them all into the very first of the amendments. For all that, none of these liberties has escaped controversy, and none has been interpreted by the Supreme Court to be absolute or unlimited. Why Is Religious Freedom Valuable? The briefest look around the world tells us what happens when politics and religion are allowed to mix. When it comes to conflicts over religion, over our fundamental beliefs about the world and the way life should be lived, the stakes are enormous. Passions run deep, and compromise is difficult. In the United States, where a majority of people are religious, religious battles tend to take place in the courts, under the guidelines set out by the First Amendment. Although not all the founders endorsed religious freedom for everyone, some of them, notably Thomas Jefferson and James Madison, cherished the notion of a universal freedom of conscience—the right of all individuals to believe as they pleased. Jefferson wrote that the First Amendment built “a wall of separation between church and State.”14 The founders based their view of religious freedom on two main arguments. First, history has shown, from the Holy Roman Empire to the Church of England, that when church and state are linked, all individual freedoms are in jeopardy. After all, if government is merely the arm of God, what power of government cannot be justified? Furthermore, religion can divide society into the factions that Madison saw as the primary threat to republican government and individual liberty. A second argument for practicing religious freedom is based on the effect that politics can have on religious concerns. Early champions of a separation between politics and religion worried that the spiritual purity and sanctity of religion would be ruined if it was mixed with the worldly realm of politics, with its emphasis on power and influence.15 The Establishment Clause The beginning of the First Amendment, forbidding Congress to make laws that would establish an official religion, is known as the establishment clause. Americans have fought over the meaning of the establishment clause almost since its inception. Although founders like Jefferson and Madison were clear on their position that church and state should be separate realms, other early Americans were not. establishment clause the First Amendment guarantee that the government will not create and support an official state church A similar di ...

1. FREEDOM OF RELIGION
Limiting Congress to protect both church and state, and the
individual’s right to believe
The First Amendment reads, “Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.” These are
the “democratic freedoms,” the liberties that the
founders believed to be so necessary to ensuring a free and
unfettered people that they crammed them all into the very first
of the amendments. For all that, none of these liberties has
escaped controversy, and none has been interpreted by the
Supreme Court to be absolute or unlimited.
Why Is Religious Freedom Valuable?
The briefest look around the world tells us what happens when
politics and religion are allowed to mix. When it comes to
conflicts over religion, over our fundamental beliefs about the
world and the way life should be lived, the stakes are enormous.
Passions run deep, and compromise is difficult. In the United
States, where a majority of people are religious, religious
battles tend to take place in the courts, under the guidelines set
out by the First Amendment.
Although not all the founders endorsed religious freedom for
everyone, some of them, notably Thomas Jefferson and James
Madison, cherished the notion of a universal freedom of
conscience—the right of all individuals to believe as they
pleased. Jefferson wrote that the First Amendment built “a wall
of separation between church and State.”14 The founders based
their view of religious freedom on two main arguments. First,

2. history has shown, from the Holy Roman Empire to the Church
of England, that when church and state are linked, all individual
freedoms are in jeopardy. After all, if government is merely the
arm of God, what power of government cannot be justified?
Furthermore, religion can divide society into the factions that
Madison saw as the primary threat to republican government
and individual liberty. A second argument for practicing
religious freedom is based on the effect that politics can have
on religious concerns. Early champions of a separation between
politics and religion worried that the spiritual purity and
sanctity of religion would be ruined if it was mixed with the
worldly realm of politics, with its emphasis on power and
influence.15
The Establishment Clause
The beginning of the First Amendment, forbidding Congress to
make laws that would establish an official religion, is known as
the establishment clause. Americans have fought over the
meaning of the establishment clause almost since its inception.
Although founders like Jefferson and Madison were clear on
their position that church and state should be separate realms,
other early Americans were not.
establishment clause the First Amendment guarantee that the
government will not create and support an official state church
A similar division continues today between the separationists,
who believe that a “wall” should exist between church and state,
and the nonpreferentialists, or accommodationists, who contend
that the state should not be separate from religion but rather
should accommodate it, without showing a preference for one
religion over another. Accommodationists argue that the First
Amendment should not prevent government aid to religious
groups, prayer in school or in public ceremonies, public aid to
parochial schools, the posting of religious documents such as
the Ten Commandments in public places, or the teaching of the
Bible’s story of creation along with evolution in public schools.
Adherents of this position claim that a rigid interpretation of
separation of church and state amounts to intolerance of their

3. religious rights or, in the words of Supreme Court Justice
Anthony Kennedy, to “unjustified hostility to
religion.”16 Presidents Ronald Reagan, George H. W. Bush, and
George W. Bush, and many other Republicans, have shared this
view, as have many powerful interest groups such as the
Christian Coalition.
separationists supporters of a “wall of separation” between
church and state
accommodationists supporters of government nonpreferential
accommodation of religion
A lot is clearly at stake in the battle between the separationists
and the accommodationists. On one side of the dispute is the
separationists’ image of a society in which the rights of all
citizens, including minorities, receive equal protection under
the law. In this society, religions abound, but they remain
private, not matters for public action or support. Very different
is the view of the accommodationists, which emphasizes the
sharing of community values, determined by the majority and
built into the fabric of society and political life.
Today U.S. practice stands somewhere between these two
views. Sessions of Congress open with prayers, for instance, but
a schoolchild’s day does not. Although religion is not kept
completely out of our public lives, the Court has generally
leaned toward a separationist stance.17
As the more conservative appointments of Republican
presidents Richard Nixon and Reagan began to shape the Court,
the Court’s rulings moved in a more accommodationist
direction. In Lemon v. Kurtzman (1971), the Court added to the
old test a third provision that a law not foster “an excessive
government entanglement with religion.”18 Under the
new Lemon test, the justices had to decide how much
entanglement there was between politics and religion, leaving
much to their own discretion.
Lemon test the three-pronged rule used by the courts to
determine whether the establishment clause is violated
As the current rule in deciding establishment cases,

4. the Lemon test is not used consistently, primarily because the
justices have not settled among themselves the underlying issue
of whether religion and politics should be separate, or whether
state support of religion is permissible.19 The justices still lean
in a separationist direction, but their rulings occasionally nod at
accommodationism. Meanwhile, many states have taken matters
into their own hands by blurring the line, allowing students to
give “inspirational” messages at school events, for instance, or
allowing schools to offer Bible classes or to teach evolution as
a controversy rather than settled science.20 These practices and
laws are the new battlefield over religious establishment, and
the Court will no doubt be called on to weigh in before long.
The Free Exercise Clause
Another fundamental question about religious freedom that
divides the public and justices alike is what to do when
religious beliefs and practices conflict with state goals. The
second part of the First Amendment grant of religious freedom
guarantees that Congress shall make no law prohibiting the free
exercise of religion. The free exercise clause, as it is called, has
generated as much controversy as the establishment clause.
When is the state justified in regulating religion? Although
Americans have an absolute right to believe whatever they want,
their freedom to act is subject to government regulation
(see Snapshot of America: What Do We Believe?).21 The
state’s police power allows it to regulate behavior in order to
protect its citizens and to provide social order and security.
These two valued goods of religious freedom and social order
are bound to conflict, and the Court has had an uneasy time
trying to draw the line between them. Although it waffled a bit
before doing so, the Court has said that schoolchildren cannot
be required to salute the American flag if it violates their
religious principles to do so (as it does for Jehovah’s
Witnesses).22
free exercise clause the First Amendment guarantee that citizens
may freely engage in the religious activities of their choice
police power the ability of the government to protect its citizens

5. and maintain social order
The Court has gone back and forth on other religious freedom
issues as it has struggled to define what actions the state might
legitimately seek to regulate. For a while the Court held that
any incidental burden placed on religious freedom must be
justified by a compelling state interest, that is, the state must
show that it is absolutely necessary for some fundamental state
purpose that religious freedom be limited.23 How the Court
determines what is and what is not a compelling state interest is
examined in Chapter 5.
compelling state interest a fundamental state purpose, which
must be shown before the law can limit some freedoms or treat
some groups of people differently
The Court rejected this compelling state interest test, however,
in Employment Division, Department of Human Resources v.
Smith (1990), when it held that if the infringement on religion
is not intentional but is rather the by-product of a general law
prohibiting socially harmful conduct, applied equally to all
religions, then it is not unconstitutional.24 The Court found that
the compelling state interest test, while necessary for cases
dealing with matters of race and free speech, was inappropriate
for religious freedom issues. Under the Smith ruling, a number
of religious practices have been declared illegal by state laws
on the grounds that the laws do not unfairly burden any
particular religion.
Religious groups consider the Smith ruling a major blow to
religious freedom because it places the burden of proof on the
individual or church to show that its religious practices should
not be punished, rather than on the state to show that the
interference with religious practice is absolutely necessary. In
response to the Smith decision, Congress in 1993 passed the
Religious Freedom Restoration Act (RFRA). This act, supported
by a coalition of ninety religious groups, restored the
compelling state interest test for state action limiting religious
practice and required that when the state did restrict religious
practice, it be carried out in the least burdensome way.

6. However, in the 1997 case of City of Boerne v. Flores, the
Court held that the RFRA was an unconstitutional exercise of
congressional power.25 Congress amended the act in 2003 to
apply only to the federal government, and in 2006 the Supreme
Court affirmed the amended federal RFRA when it ruled that the
act protected a New Mexico church’s use of tea containing an
illegal substance for sacramental purposes, reinstating the
compelling state interest test.26
Supporters of greater freedom for religious institutions were
heartened greatly in 2012, when the Supreme Court issued a
unanimous ruling in Hosanna-Tabor Evangelical Lutheran
Church and School v. Equal Employment Opportunity
Commission, which the New York Times called perhaps “its
most significant religious liberty decision in two
decades.”27 In Hosanna-Tabor, the Court held that the hiring
practices of religious groups could not be regulated by federal
employment law (in this case, law that prohibited discrimination
against an employee with a disability), because that would
essentially give government the right to tell such groups whom
they could hire. Still, the sweeping decision has not stopped
critics of the Court’s earlier Boerne ruling from arguing that to
protect religious freedom, the Constitution should be amended
to make RFRA the law of the land.28
Concern over religious freedom among church members grew
after the full implementation of the Patient Protection and
Affordable Care Act (ACA) in 2014. The Obama administration
interpreted the ACA requirements as meaning that employer-
based health insurance should provide birth control coverage,
but in 2012 the Supreme Court ruled, in Burwell v. Hobby
Lobby, that corporations that are not publicly traded (so-called
closely held corporations) did not have to provide such
coverage if it violated the owners’ religious beliefs. This case
not only upheld the right of employers not to provide
contraception coverage if it conflicted with the employer’s
religious beliefs but also affirmed that right for some kinds of
corporations as well as for individuals.

7. Meanwhile, when the federal law appeared to be in jeopardy,
many states passed their own RFRAs to protect religious
practices at the state level, and they have been used to protect a
variety of controversial practices on religious grounds,
including the denial of services and rights to those in the
LGBTQ community. Such laws proliferated again in 2015 and
2016 in the wake of the Supreme Court’s ruling that
constitutionalized marriage equality. States such as Indiana,
Mississippi, and North Carolina suffered serious blowback from
companies that considered the intent of such laws to be
discriminatory and chose to take their business elsewhere. (We
will read more about this in Chapter 5.)
In Your Own Words
Describe how the First Amendment protects both church and
state, as well as individuals’ religious freedom.FREEDOM OF
EXPRESSION
Checking government by protecting speech and the press
Among the most cherished of American values is the right to
free speech. The First Amendment reads that “Congress shall
make no law . . . abridging the freedoms of speech, or of the
press” and, at least theoretically, most Americans
agree.29 When it comes to actually practicing free speech,
however, our national record is less impressive. In fact, time
and again, Congress has made laws abridging freedom of
expression, often with the enthusiastic support of much of the
American public. As a nation we have never had a great deal of
difficulty restricting speech we don’t like, admire, or respect.
The challenge of the First Amendment is to protect the speech
we despise.
freedom of expression the right of the people to free speech
Why Is Freedom of Expression Valuable?
It is easier to appreciate what is at stake in the battles over
when and what kind of speech should be protected if we think
about just why we value free speech so much in the first place.
Freedom of speech can help to empower citizens and limit

8. government in four ways:
· Free speech is important because citizens are responsible for
participating in their government’s decisions and they need
information provided by an independent, free press to protect
them from government manipulation. Mediated citizenship gives
us many more channels through which to access information,
but that means many more channels to monitor for truth and
reliability. In an age in which the president of the United States
feels free to label unflattering or critical news coverage “fake
news,” the imperative to maintain a free press is more critical
than ever.
· Free speech can limit government corruption. By being free to
voice criticism of government, to investigate its actions, and to
debate its decisions, both citizens and journalists are able to
exercise an additional check on government that supplements
our valued principle of checks and balances.
· Denying free speech sets a dangerous precedent. Censorship in
a democracy usually allows the voice of the majority to prevail.
One of the reasons to support minority rights as well as majority
rule, however, is that we never know when we may fall into the
minority on an issue.
· Free speech ensures the vigorous protection of the truth.
According to the nineteenth-century English philosopher John
Stuart Mill, by allowing the expression of all speech, we
discover truths we had previously believed to be false and we
develop strong defenses against known falsehoods like racist
and sexist ideas.
free press a press that is able to report fully on government’s
activities
If free speech is so valuable, why is it so controversial? Like
freedom of religion, free speech requires tolerance of ideas and
beliefs other than our own, even ideas and beliefs that we find
personally repugnant. Those who are convinced that their views
are absolutely and eternally true often see no real reason to
practice toleration. Many people believe that, in a democracy,
the majority should determine the prevailing views and the

9. minority, having lost the vote, so to speak, should shut up. In
addition, conflicting ideas about what constitutes the public
interest can lead reasonable people to disagree about whether
speech ought to be protected or restricted.30
Speech That Criticizes the Government
Sedition, speech that criticizes the government to incite
rebellion, has long been a target of restrictive legislation, and
most of the founders were quite content that it should be so. Of
course, all of the founders had engaged daily in the practice of
criticizing their government when they were inciting their
countrymen to revolution against England, so they were well
aware of the potential consequences of seditious activity. Now
that the shoe was on the other foot and they were the
government, many were far less willing to encourage dissent.
Especially during wartime, it was felt, criticism of the
government undermined authority and destroyed patriotism.
sedition speech that criticizes the government to promote
rebellion
Early in our history it was easy enough for those in government
to control the information that they felt threatened their power.
It didn’t take long for American “revolutionaries” to pass the
Alien and Sedition Acts of 1798, which outlawed “any false,
scandalous writing against the government of the United
States.” Throughout the 1800s and into the next century, all
levels of government, with the support and encouragement of
public opinion, squashed the views of radical political groups,
labor activists, religious sects, and other minorities. By the end
of World War I, thirty-two of forty-eight states had laws against
sedition, which essentially prohibited the advocacy of the use of
violence or force to bring about industrial or political change.
In 1917 the U.S. Congress passed the Espionage Act, which
made it a crime to “willfully obstruct the recruiting or
enlistment service of the United States,” and a 1918 amendment
to the act spelled out what that meant. It became a crime to
engage in “any disloyal . . . scurrilous, or abusive language

10. about the form of government of the United States, . . . or any
language intended to bring the form of government of the
United States . . . into contempt, scorn, contumely, or
disrepute.”31 Such sweeping prohibitions made it possible to
arrest people on the flimsiest of pretexts.
Those arrested and imprisoned under the new sedition laws
looked to the Supreme Court to protect their freedom to
criticize the government, but they were doomed to
disappointment. The Court did not dispute the idea that speech
criticizing the government could be punished. The question it
dealt with was just how bad the speech had to be before it could
be prohibited. The history of freedom of speech cases is a
history of the Court devising tests for itself to determine
whether certain speech should be protected or could be
legitimately outlawed.
In two cases upholding the Espionage Act, Schenck v. United
States (1919) and Abrams v. United States (1919), Justice
Oliver Wendell Holmes began to articulate what he called
the clear and present danger test.32 This test, as Holmes
conceived it, focused on the circumstances under which
language was used. If there were no immediately threatening
circumstances, the language in question would be protected, and
Congress could not regulate it. But Holmes’s views did not
represent the Court’s majority opinion, and the clear and
present danger test was slow to catch on.