Freedom of Religion Under the First Amendment 

One of the most important principles of American constitutional law is the idea that the United States has no official religion and that anyone may practice whatever religion they choose (or no religion at all). This principle became a part of the United States Constitution – which is the supreme law of the United States – through what is known as the First Amendment.

This article provides a brief introduction to constitutional amendments in general and to the First Amendment in particular – with a focus on how the First Amendment protects and promotes freedom of religion.

What is a constitutional amendment?

A constitutional amendment is a modification of an existing constitution. The United States Constitution came into effect in 1789. It has since been amended a number of times. The first ten amendments – one of which (the First Amendment) is the topic of this article – were enacted two years later, in 1791. These first ten amendments are known as the “Bill of Rights” because they were intended to secure individual rights and freedoms and to place limits on the powers of government. The most recent amendment – the Twenty-Seventh Amendment, which governs congressional pay – was enacted in 1992. Other well-known amendments include the Thirteenth Amendment (1865) which abolished slavery and the Nineteenth Amendment (1920) which gave women across the country the right to vote.

How is the United States Constitution amended?

Article Five of the United States Constitution describes the process through which the Constitution itself may be modified. Any modification requires two steps: (1) the proposal of an amendment and (2) the ratification (or formal approval) of the proposed amendment.

An amendment may be proposed either by Congress (with a two-thirds vote in both the House of Representatives and the Senate) or by a convention of the states (if the legislatures of at least two-thirds of the states called for the convention). A proposed amendment must be ratified either by the legislatures of three-quarters of the states or by state ratifying conventions in three-quarters of the states. These are difficult thresholds to reach.

What does the First Amendment say?

The First Amendment to the United States Constitution says that “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.”

To whom or what does the First Amendment apply?

The provisions of the First Amendment apply to governments and government actors. They do not apply to private individuals or groups unless (in certain instances) those private individuals or groups are using public (government) money or facilities.

What does the First Amendment say about religion?

The First Amendment addresses the subject of religion in two different ways. It says that “Congress shall make no law” (1) “respecting an establishment of religion” or (2) “prohibiting the free exercise thereof.” Both establishing (or promoting) a religion and prohibiting the free exercise of religion are prohibited.

The first part of the First Amendment’s treatment of religion is known as the Establishment Clause, while the second part of the First Amendment’s treatment of religion is known as the Free Exercise Clause.

(When the first ten amendments – the Bill of Rights – were enacted, they only applied to the federal government, which is why the First Amendment refers to “Congress.” However, with the ratification of the Fourteenth Amendment (1868) – which says that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” – the Bill of Rights now applies to state and municipal governments as well.)

How does the First Amendment protect and promote freedom of religion through the Establishment Clause?

The Establishment Clause prohibits government from favoring or disfavoring a particular religion or religion in general.

In 1971 – in its opinion in a case called Lemon v. Kurtzman – the United States Supreme Court established a test to help judges determine whether or not a particular government policy or action violates the Establishment Clause and therefore is unconstitutional. Under the “Lemon test,” a government policy or action is only constitutional if the policy or action:

(1) has a secular (non-religious) purpose;

(2) has a primary effect that neither advances nor inhibits religion; and

(3) does not foster an excessive government entanglement with religion.

Under the Establishment Clause, a government policy or action that prefers one religious sect over another must be “narrowly tailored” to promote a “compelling” government interest. In post-Lemon decisions, the Supreme Court has held that public school-sponsored religious activities (including even voluntary silent prayer) are unconstitutional, as is the display of purely religious symbols on government property.

How does the First Amendment protect and promote freedom of religion through the Free Exercise Clause?

The Free Exercise Clause gives each individual the right to worship (or not) as they see fit and prohibits governments from discriminating against or otherwise punishing people for their religious beliefs and practices – albeit within limits. When the government has an overriding (or “compelling”) interest in protecting public health and safety, religious practices such as bigamy and ritual animal sacrifice may be prohibited. Laws of general application that are not intended to interfere with religion are not required to include religious exemptions, although lots of exemptions exist: for example, religious organizations have a legal right to select and manage their own ministers; people who quit their jobs for religious reasons are legally entitled to unemployment benefits; and Amish children are not legally required to attend high school.

Sources and further reading

American Civil Liberties Union – “Your Right to Religious Freedom”: https://www.aclu.org/other/your-right-religious-freedom

Legal Information Institute – “Establishment Clause”: https://www.law.cornell.edu/wex/establishment_clause

Legal Information Institute – “Free Exercise Clause”: https://www.law.cornell.edu/wex/free_exercise_clause

National Constitution Center - "First Amendment: Freedom of Religion, Speech, Press, Assembly, and Petition": https://constitutioncenter.org/the-constitution/amendments/amendment-i

United States Courts – “First Amendment and Religion”: https://www.uscourts.gov/educational-resources/educational-activities/first-amendment-and-religion