Chapter 6 First Amendment: Freedom of Religion

• Jurisdiction: United States

Chapter 6 First Amendment: Freedom of Religion

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.

Religion has always played an important role in correctional practices in America, from the early days of penitentiaries, when Quakers introduced their faith as a guide for repentance and rehabilitation of offenders. Today, various religious groups have the power to affect legislation that protects the right to practice faith in accordance with the First Amendment, and thus enable correctional facilities to be more conducive to practices reflecting religious diversity. This fits in with recent trends in criminological and peno-logical discourse that promote restorative justice, which stems from strong biblical notions of justice. Under President George W. Bush, faith-based prison programs and prison units aimed at rehabilitating offenders received a great deal of governmental support.

In addition to protecting an individual's right to freedom of speech, as discussed in the previous chapter, the First Amendment also protects religious freedom. The guarantee of this freedom consists of two complementary clauses: the establishment clause and the free exercise clause. The establishment clause generally prohibits the government from establishing a religion or preferring (promoting) one religion above others. While the latter, the free exercise clause, protects individual religious beliefs, practices, or expression from government intrusion in the form of proscriptions or discrimination.

In the 19th and early 20th centuries, with regard to freedom of religion, federal courts applied the United States Constitution when hearing cases challenging federal laws, while state courts analyzed cases based on their respective state constitutions. States typically recognized the right to free exercise of religion, but with broad authority to regulate. For example, in Reynolds v. United States: The Court held that while laws "cannot interfere with mere religious belief and opinions, they may with practices." The Court felt that allowing a religious belief to be used as a justification for a criminal act (in this case, polygamy) would result in citizens becoming laws unto themselves. States tended to support the establishment of religion, as indicated by their support for religious-based institutions such as religious schools and hospitals, though this tended to favor only one religion, Christianity, and more specifically, Protestantism. As varying strains of Christianity became more popular, however, and immigration brought an influx of other religions (Jews, Muslims, Buddhists, Hindus, etc.), there was a corresponding increase in challenges to existing laws. Frustrated with the response of state courts, individuals increasingly turned to federal courts to address their grievances. In the year 1940, things started to change.

Although the establishment and free-exercise clauses work together, they have been considered separately, spawning two distinct lines of analysis. In Cantwell v. Connecticut, the Supreme Court ruled in favor of Cantwell, a Jehovah's Witness family, in a suit challenging a Connecticut statute that required a license to solicit for religious purposes. In this case the Court held that the First Amendment "embraces two concepts—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Absent clear and present danger, however, the government may not engage in prior restraint when it would determine what was a religious cause and thus permissible. This would be a deprivation of a liberty without due process of law, in violation of the Fourteenth Amendment. In the process, the Court's ruling established the free-exercise clause as a fundamental right that therefore applies in all states via the Fourteenth Amendment. Accordingly, in order to be constitutional, any law infringing on this right must be shown to be nondiscriminatory and related to an important or significant governmental interest. As for the establishment clause's application to the states, the Supreme Court decided on the issue in 1947, in Everson v. Board of Education, a case about busing for private and public schoolchildren. Citing Reynolds v. United States, Justice Hugo Black stated:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, or vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and state.' (as cited in Berman, 1986: 784)

Standards of Review Today

Establishment Clause

In Everson v. Board of Education, the Court attempted to create a clear line of separation between church and state. Since that decision, the Supreme Court has fashioned a number of tests for evaluating whether government actions or laws have violated the establishment clause. The first test was developed 27 years after Everson, when the Supreme Court crafted a strict doctrinal framework for separation in the case Lemon v. Kurtzman. This doctrinal framework came to be known as the Lemon test. According to the Court, when a law is challenged under the establishment clause, constitutionality is determined by whether the law:

1. has a secular purpose;
2. has a primary effect that neither advances nor inhibits religion; and
3. fosters no excessive entanglement between church and state.

The Lemon test was developed to analyze the case of state funding for "church-related educational institutions." The Court held that government funding for parochial schools advanced religion, and the need to enforce the laws would result in excessive entanglement between church and state.

The Lemon test is likely the most frequently applied test, but critics complain it is unworkable. Over time, the Supreme Court itself moved away from the Lemon test. In Marsh v. Chambers, the Court upheld the Nebraska legislature's practice of starting each day with a prayer led by a state-funded chaplain, based on the fact that such a prayer is a long-established tradition that "has become part of the fabric of our society." A year later, in Lynch v. Donnelly, the Supreme Court ruled that a Nativity scene in a Rhode Island city Christmas decoration was permissible, on the grounds that a reasonable person would not perceive the scene as endorsing religion. The decision clarified the establishment clause, however, to specify that the government should be neutral so as not to endorse or disapprove of any specific religion. For instance, one of the reasons that the authors of the Bill of Rights included the so-called establishment clause was so that one religion would not be favored, nor would the United States have an official religion, as the United Kingdom has the Church of England. The language put forward in Lynch v. Donnelly has come to be known as the endorsement test. The endorsement test has been applied primarily to cases involving expression of religion, as in the cases above, involving religious symbols on government property or religious prayers during public events.

A third significant test is known as the coercion test. In Lee v. Weisman, a public school invited a Jewish rabbi to speak at a graduation ceremony. Mr. Weisman, a parent of one of the graduating students, filed for a temporary injunction to stop the rabbi from...