The Free Exercise of Religion

There have been three competing approaches to the interpretation of the Free Exercise Clause. One is that the Free Exercise Clause should protect religious belief but not religious conduct. Another is that any law that directly or indirectly burdens religious liberty should be subjected to “strict scrutiny” by judges and rarely upheld. A final approach says that the Constitution should prohibit laws that are motivated by animus toward religion or that interfere with core questions of religious doctrine, worship, or membership, but that otherwise religious individuals must follow neutral laws of general applicability. The chapter outlines arguments in favor of this latter approach and then applies this approach to cases involving religious business owners who wish to be exempted from laws requiring the provision of health benefits to employees and laws prohibiting sexual orientation discrimination in public accommodations.

The Competing Perspectives of the Religion Clauses

This chapter describes the recent Supreme Court cases dealing with the Establishment Clause and Free Exercise Clause of the First Amendment, while also previewing the issues likely to arise in the future. It identifies how for both of these provisions there are two competing philosophies, which are titled “accommodation” and “separation.” “Accommodationists” see little as violating the Establishment Clause but want the Free Exercise Clause to be aggressively used to create an exception to general laws based on religious beliefs. “Separationists” see the Establishment Clause as creating a secular government and reject special exceptions for religion. At this point in American history, there is a political divide: conservatives tend to favor the accommodation approach, while liberals favor the separationist view.

What Can We Expect of Law and Religion in 2020?

The United States is in a religion-friendly mood—or at least its three branches of government are. The Supreme Court is turning away from its Free Exercise Clause analysis that currently holds that every religious person must obey the law. At the same time, the Court is rejecting its old Establishment Clause analysis that the government cannot practice or support religion. The old model of separation of church and state is gone, replaced by an ever-growing unity between church and state. This Article examines how much union of church and state this Court might establish.

Religion in the Schools

Starting in the 1960s, the U.S. Supreme Court understood the Establishment Clause to strictly limit government’s ability to promote religion in the schools: The state could not lead prayers, it could not fund private religious education, and it could not teach religion as true in the public school curriculum. During the same period, the Court construed free exercise rights (in schools and elsewhere) in a fairly modest fashion by balancing religious rights against government interests. Beginning in 1990, the Court weakened the Free Exercise Clause still further. Today, however, the Court is moving to reshape the general law of the Religion Clauses, and the trend points (clearly) toward a greatly weakened Establishment Clause and (less clearly) toward a Free Exercise Clause that is at least somewhat more robust. The Court has also made clear that the Free Speech Clause grants religious speakers equal rights to speak on school property. These speech protections are powerful guarantors of religious liberty, even if no revolution in free exercise law materializes. This chapter surveys the constitutional law involving religion in the K–12 public schools, summarizing that law as it currently stands and offering tentative predictions about where it is headed. The chapter begins with the Establishment Clause limits on government religious expression in the public schools, then continues by discussing the free exercise rights of students and teachers, religion in the public school curriculum, and the rights of religious groups to speak on school property.