Separation of church and state

Church & State

What does the First Amendment "free exercise" clause mandate?

The free exercise clause of the First Amendment mandates state neutrality regarding religious expression. The free exercise clause basically guarantees the right to freely exercise any religion -- or no religion. In this sense, the free exercise clause is akin to the freedom of speech clause, and exercising religion is sometimes framed in terms of freedom of expression. Indeed, one of the "avenues that an individual religious adherent or a religiously affiliated institution might now pursue" includes seeking protection under the free speech and free press clauses of the First Amendment (p. 45-6). Religion can be viewed as an "expressive" and a "communicative" activity (p. 46). However, due process, the right of free association, and privacy are other constitutional protections that bolster the First Amendment free exercise clause. The First Amendment free exercise clause mandates against government interference in individual religious expression, and prohibits the state from either prohibiting religion or espousing religion.

2. What does the First Amendment establishment clause mandate?

Under the establishment clause of the First Amendment, "public institutions must maintain a neutral stance regarding religious beliefs and activities; they must, in other words, maintain religious neutrality," (p. 43). Public institutions cannot support one religion over another, and public institutions cannot support "religion over nonreligion," (p. 43). Government support for private religious institutions is thereby restricted if not prohibited (p. 47). However, "noncoercive" religious activities may be permitted on campuses (p. 43). Government support can be offered to institutions that happen to be religious, so long as the aid program proves itself to be religiously neutral. The Supreme Court has relied on three interrelated "prongs" to evaluate government aid programs: the purpose of the program, the effect of the program, and the extent of government "entanglement" in the religion (p. 47). The establishment clause also protects religious institutions from overbearing government intrusion, so long as the institution is privately funded and so long as the institution's practices do not violate other constitutional rights such as equal protection.

3. How can these two be reconciled?

Both the free exercise clause and the establishment clause are embedded in the First Amendment to the Constitution. Therefore, they purposefully coexist and can be reconciled. Both clauses ensure government neutrality regarding religion in public institutions. The free exercise clause guarantees the right to practice religion or nonreligion without discrimination, whereas the establishment clause prohibits state institutions from condoning any one stance on religion. Free exercise can be explained as follows: "If a rigidly observed policy of neutrality would discriminate against campus organizations with religious purposes or impinge on an individual's right to freedom of speech or free exercise of religion," then a state organization such as a public school would be obliged to permit religion on campus (p. 43). However, the free speech clause of the First Amendment has been cited for reasons to allow religious expression on school campuses: and in some instances proves more effective than the free exercise clause (p. 44). Private institutions have significantly greater leeway in the freedom of religious expression, and state governments also offer significant protections of religious expression.

The free exercise and establishment clauses are more naturally reconciled in private institutions. Private institutions "have no obligation of neutrality," and can establish religion as they see fit and in most cases regulate religious expression (p. 44). The establishment clause prevents the courts from interfering in private institutions that are religiously affiliated: "these clauses affirmatively protect the religious beliefs and practices of private religious institutions from government interference," (p. 44). State-sponsored institutions are, on the other hand, unable to establish religion, but at the same time are obliged to protect the right of religious expression.

Yet private institutions may be subject to some government scrutiny when the free exercise clause clashes with other constitutional rights such as equal protection. For example, in Bob Jones University v. United States the Supreme Court rules that free exercise cannot be used as justification for racial discrimination (p. 44-45). The state may also sponsor aid programs that are religiously neutral, but which grant financial support to students affiliated with religious institutions. In cases like those, the government maintains a neutral stance regarding religion (p. 48).