Living Democracy

Joy Cowdery

The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from “establishing” a religion. The definition of “establishment” is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England or favoring one religion over another, or favoring religion over non-religion. Key cases have centered on school prayer, religious displays, and state funding for religious institutions, often requiring a “neutrality” approach. The Founders thus intended to ensure the separation of church and state.

Key Establishment Cases

Everson v. BOE (1947): a one minute period for silence for meditation or prayer violates the Establishment clause.

Engel v. Vitale (1962): voluntary, non-denominational prayer in public schools is unconstitutional. Abington V Schrempp (1963) reiterated this and added that it is still in violation of the Establishment Clause if students are excused by parents from participating.

Lemon v. Kurtzman (1971): Established the “Lemon test” requiring that, to be constitutional a law must 1. have a secular purpose, 2. not advance/inhibit religion, and 3. not foster “excessive entanglement” with religion.

Stone v Graham (1980) A copy of the Ten Commandments, purchased with private funds, on the wall of public schools was unconstitutional.

Kee v. Weisman (1992): Clergy offering prayers at public school graduations is unconstitutional.

Santa Fe V Doe (2000): Student led prayer at public school football games violated the Establishment Clause.

McCreary County v. ACLU (2005): Held that a Ten Commandments display in a courthouse was unconstitutional.

Kennedy v. Bremerton School District (2022): Protected a public school coach’s right to pray on the field, signaling a shift toward a “historical practices and understandings” test and moving away from the Lemon test.

The Free Exercise Clause protects citizens’ rights to practice their religion as they please, so long as the practice does not run afoul of “public morals” or a “compelling” governmental interest.

Key Free Exercise Cases

Reynolds v US (1878): A person’s religious belief cannot be justification for a criminal act.

Torasco v. Watkins (1961): A religious test for public office is unconstitutional.

Braunfeld v. Brown (1961): A state law prohibiting Sunday retail sales does not violate the Free Exercise Clause.

Wisconsin v. Yoder (1972): Ruled that Amish families could not be forced to send their children to public school beyond 8th grade, prioritizing religious practice over state education mandates.

Burwell v. Hobby Lobby Stores (2014): Ruled that for-profit corporations could be exempt from regulations (contraception mandate) that violated their owners’ religious beliefs.

Mahmoud V Taylor (2025-2026): School districts must allow parents to opt their children out of curriculum that contradicts their religious beliefs.

The Establishment Clause and the Free Exercise Clause can come into conflict.

As evidenced by the above cases, the Supreme Court has shifted toward an expansive interpretation of the Free Exercise Clause, often prioritizing religious freedom over the separation of church and state. Recent rulings allow for more government funding of religious activities, uphold parental rights to opt children out of school lessons, and protect religious practices.

The result can have some citizens feeling excluded as the government grants special privileges to one set of religious beliefs.

In essence, marginalizing the Establishment Clause in favor of the Free Exercise Clause transforms the government from a neutral party into a promoter of specific, favored religious beliefs, threatening the “separation of church and state”.

The beauty of the first amendment has always been the balance of the two.

Joy Cowdery, member of Living Democracy: Engaging Citizens. Our mission is to inform and educate the Mid-Ohio Valley about how government works on the local, state, and federal levels and how citizens can be involved to make our democracy work. Join us the third Monday of each month. livingdemocracymov@gmail.com and facebook/livingdemocracy:engagingcitizens and Youtube channel Living Democracy.