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The Present Meaning of the First Amendment Religion ClausesChapter 12

The previous chapter addressed the importance of the Supreme Court’s interpretation of the First Amendment religion clauses. In this chapter, the Court’s current interpretation of the religion clauses is addressed.

In 1971, the Court held that a law or government action challenged on the basis of the “Establishment Clause” will be constitutional only if it meets all of the following three conditions: (1) a clearly secular purpose, (2) a primary effect that neither advances nor inhibits religion, and (3) no excessive entanglement between government and religion. This test often was referred to as the “tripartite” establishment clause test (also known as the Lemon test). In 2022, the Court overturned the test and said cases should be decided through interpreting the Establishment Clause “by reference to historical practices and understandings.”

In many respects, even when Lemon was still considered good law, the Court tended to decide Establishment Clause cases based on history and tradition. To illustrate, in 1984, the Court upheld the constitutionality of a nativity scene on public property during the Christmas season even though such displays might not pass the then-existing tripartite test. The Court was satisfied that the display reflected a deeply held and widely accepted religious tradition that did not advance or establish religion in a substantial way.

In evaluating whether a particular law or government action violates the “Free Exercise” Clause, the Supreme Court has formulated the following two rules: first, government may never interfere with an individual’s right to believe whatever he or she wants. Second, in deciding whether or not a government law, regulation, or practice that burdens religiously motivated conduct violates the Free Exercise Clause, various principles apply. For example, “generally applicable criminal prohibitions” that burden religiously motivated conduct do not violate the Free Exercise Clause. Such prohibitions are presumptively valid and need not be supported by a compelling state interest.

In other Free Exercise cases, the courts must consider (i) whether the activity was motivated by and rooted in legitimate and sincerely held religious belief, (ii) whether the activity was unduly and substantially burdened by the government’s action, and (iii) whether the government has a compelling interest in limiting the religious activity that cannot be accomplished by less restrictive means.

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