Religious Freedom

The doctrines/terminology courts use in analyzing religious freedom are numerous and complex.  Sometimes the court uses its own terminology without even defining or conversely using the definition without mentioning the term.  This can make learning about constitutional protections of religious freedom difficult.

This page is intended to be a reference section where one can look up religious freedom terminology.

Civic Religion

“The idea of a civic religion against the central meaning of the Religion Clauses of the First Amendment, which is that all creeds must be tolerated and none favored. The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted.”1

Establishment Clause

Religious Freedom
Indian School Park where school age Native Americans were taken to assimilate them.

“It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.”2

Endorsement Test

“Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”3

Lemon Test

“Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, finally, the statute must not foster an excessive government entanglement with religion.”4

Separation of Church and State

“Nor does the Constitution require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any.”5

Symbolic Expression

Symbolic expression is a “tolerable acknowledgement of beliefs widely held rather than a first, treacherous step towards establishment of a state church.”6

Exercise of Religion

Religious Freedom
A Catholic Church

“[T]he exercise of religion often involves not only belief and profession but the performance of . . . physical acts [such as] assembling with others for a worship service [or] participating in sacramental use of bread and wine. . . .”7

How Religious Protections Differ From Speech

“The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own. The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. The Free Exercise Clause embraces a freedom of conscience and worship that has close parallels in the speech provisions of the First Amendment, but the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart in the speech provisions.”8

 

  1. Lee v. Weisman, 505 US 577, 590 (1992).
  2. Engel v. Vitale, 370 US 421, 425 (1962).
  3. Allegheny County v. Greater Pittsburgh ACLU, 492 US 573, 625 (1989)(O’Connor, J., concurring).
  4. Lemon v. Kurtzman, 403 US 602, 612-13 (1972)(internal citation and quotation marks omitted).
  5. Lynch v. Donnelly, 465 US 668, 673 (1984).
  6. Town of Greece v. Galloway, 134 S. Ct. 1811, 1818 (2014) (citing Marsh v. Chambers, 463 US 783,792 (1983)).
  7. Cutter v. Wilkinson, 544 US 709, 720 (2005)(quoting Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 US 872, 877 (1993)).
  8. Lee v. Weisman, 505 US 577, 591 (1992)(internal citations omitted).