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First Amendment

Freedom Of Religion

Establishment Clause Prior to the American Revolution, the English designated the Anglican Church as the official church of their country. The church was supported by taxation, and all English people were required to attend its services. No marriage or baptism was sanctioned outside of the church. Members of religious minorities who failed to abide by the strictures of the church were forced to endure civil and criminal penalties, including banishment and death. Some American colonies were also ruled by persecutorial theocrats, such as the Puritans in Massachusetts.

These English and colonial experiences influenced the Founding Fathers, including Jefferson and Madison. Jefferson supported a high wall of separation between church and state. Furthermore, Jefferson, a student of the Enlightenment (an eighteenth-century philosophical movement whose members rejected traditional values and embraced rationalism), opposed religious influence on the business of government. In turn, Madison, a champion of religious minorities, opposed government interference with religion. For Madison, the establishment of a national church differed from the Spanish Inquisition "only in degree," and he vociferously attacked any legislation that would have led the colonies down that path. For example, Madison led the fight against a Virginia bill that would have levied taxes to subsidize Christianity.

The thoughts and intentions of Madison have been the subject of rancorous discord among the U.S. Supreme Court justices who have attempted to interpret the Establishment Clause in a variety of contexts. Some justices, for example, cite Madison's opposition to the Virginia bill as evidence that he opposed only discriminatory government assistance to particular religious denominations, but that he favored nonpreferential aid in order to cultivate a diversity in faiths. Thus, the left posterity with three considerations regarding religious establishments: (1) a wall of separation that protects government from religion and religion from government; (2) a separation of church and state that permits nondiscriminatory government assistance to religious groups; and (3) government assistance that preserves and promotes a diversity of religious beliefs.

The U.S. Supreme Court attempted to incorporate these three considerations under a single test in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971). In Lemon, the Court held that state and federal government may enact legislation that concerns religion or religious organizations so long as the legislation has a secular purpose, and a primary effect that neither advances nor inhibits religion nor otherwise fosters an excessive entanglement between church and state. Under this test, the U.S. Court of Appeals for the Fifth Circuit invalidated a Mississippi statute that permitted public school students to initiate nonsectarian prayers at various compulsory and noncompulsory school events (Ingebretsen v. Jackson Public School District, 88 F.3d 274 [1996]). By contrast, the Court has permitted state legislatures to open their sessions with a short prayer—because, the Court says, history and tradition have secularized this otherwise religious act (Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 [1983]).

The Court has made seemingly inconsistent rulings in other areas, as well. For instance, it permitted a municipality to include a Nativity scene in its annual Christmas display (Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604 [1984]), whereas it prohibited a county courthouse from placing a crèche on its staircase during the holiday season (Allegheny v. ACLU, 492 U.S. 573, 109 S. Ct. 3086, 106 L. Ed. 2d 472[1989]). In Allegheny, the Court said that nothing in the county courthouse indicated that the crèche was anything other than a religious display, whereas in Lynch, the Nativity scene was part of a wider celebration of the winter holidays. Such inconsistencies will continue to plague the Court as the justices attempt to reconcile the language of the Establishment Clause with the different considerations of the Founding Fathers.

Free Exercise Clause The Establishment Clause and the Free Exercise Clause represent flip sides of the same coin. Whereas the Establishment Clause focuses on government action that would create, support, or endorse an official national religion, the Free Exercise Clause focuses on the pernicious effects that government action may have on an individual's religious beliefs or practices. Like the Establishment Clause, the Free Exercise Clause was drafted in response to the Framers' desire to protect members of religious minorities from persecution.

The Framers' understanding of the Free Exercise Clause is illustrated by the NEW YORK CONSTITUTION OF 1777, which stated,

[T]he free exercise and enjoyment of religious … worship, without discrimination or preference, shall forever … be allowed … to all mankind: Provided, that the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State. (N.Y. Const. Art. 1 § 3)

The New Hampshire Constitution of 1784 similarly provided that "[every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt … in his person, liberty or estate for worshipping God" in a manner "most agreeable" to those dictates, "provided he doth not disturb the public peace" (N.H. Const. Pt. 1, Art. 5).

These state constitutional provisions not only provide insight into the Founding Fathers' original understanding of the First Amendment, but they also embody the fundamental tenets of modern free exercise JURISPRUDENCE. The U.S. Supreme Court has identified three principles underlying the Free Exercise Clause: (1) no individual may be compelled by law to accept any particular religion or form of worship; (2) all individuals are constitutionally permitted to choose a religion freely in accordance with their conscience and spirituality, and the government may not inhibit their religious practices; and (3) the government may enforce its criminal norms against persons whose religious practices would thwart a compelling societal interest.

Rarely is a law that infringes upon someone's religious beliefs or practices supported by a compelling state interest. The U.S. Supreme Court has held that no compelling societal interest would be served by actions that conflict with deeply held religious beliefs, such as coercing members of the Jehovah's Witnesses to salute the U.S. flag in public schools (West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63S. Ct. 1178, 87 L. Ed. 1628 [1943]); denying unemployment benefits to Seventh-Day Adventists who refuse to work on Saturdays (Sherbertv. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 [1963]); or requiring Amish families to keep their children in state schools until the age of 16 (Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 [1972]). However, a compelling government interest is served by the federal revenue system, so no member of any religious sect can claim exemption from taxation (United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 [1982]).

A different question is presented when the government disputes whether a particular belief or practice is religious in nature. This typically happens when conscientious objectors resist the federal government's attempt to conscript them during wartime. Some draft resisters object to war on moral or ethical grounds that are unrelated to orthodox or doctrinal religions. If a CONSCIENTIOUS OBJECTOR admits to being atheistic or agnostic, the government asks, then how can that objector avoid CONSCRIPTION by relying on the First Amendment, which protects the free exercise of religion?

In an effort to answer this question, the U.S. Supreme Court explained that the government cannot "aid all religions against non-believers," any more than it can aid one religion over another (Torasco v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 [1961]). Thus, as long as a person "deeply and sincerely holds beliefs which are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs" are protected by the First Amendment (WELSH V. UNITED STATES, 398 U.S. 333, 90 S. Ct. 1792, 26 L. Ed. 2d 308 [1970]). A belief—religious, moral, or ethical—that manifests itself in a person's selective opposition to only certain

The Supreme Court has interpreted the Free Exercise Clause of the First Amendment to mean that only a compelling state interest may override the religious beliefs of individuals. For example, Amish children cannot be compelled to attend state schools until the age of 16.

wars or military conflicts is not protected by the Free Exercise Clause.

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