Amendment I.  Ratified December 15, 1791

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.

As the text of the First Amendment makes clear, originally it applied only to Congress, and not the states, which could make laws establishing churches and prohibiting the free exercise of religion. As a practical matter, the latter was not an issue by the time the Bill of Rights was adopted. States did still have established churches, however. In 1833, Massachusetts became the last state to stop funding and disestablish its church. In the last 150 years, the Supreme Court has ruled that the Due Process Clause of the Fourteenth Amendment (1868) (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) expanded the application of the First Amendment and most of the Bill of Rights to state and local laws. Thus, the Court has required a uniform standard for both federal and state governments on major issues arising from violations of the Bill of Rights. The Court did not apply the Religion Clauses of the First Amendment to state and local laws until the mid-twentieth century (See West Virginia v. Barnette and Everson v. Board of Education). The First Amendment includes freedoms of religion, speech, press, assembly, and petition. Freedom of religion is first, the key element of republican citizenship. This freedom is expressed in two clauses. First, the government may not establish a religion—that is, make one religion the official, government-supported religion. But may the government promote or prefer religion generally, or even at all? Second, the government may not prohibit the free exercise of religion. But does protecting free exercise mean that all religious practices as well as beliefs must be allowed (See Reynolds v. U.S)? If not, how are we to distinguish between those practices which should and those which should not be protected? This collection of cases introduces teachers and students to the legal debate over the First Amendment’s Religion Clauses through excerpted opinions of Supreme Court justices. While the cases are presented chronologically, they are also categorized by the focus each has on the two Religion Clauses, as well as by which cases involve schools or universities (Appendix A).  These cases present the most clear, contentious, and instructive opinions on freedom of religion. The goal is to permit the reader to decide how each opinion attempts to protect religious freedom. This goal means that, in the earlier cases that developed the Court’s understanding of the establishment and free exercise of religion, we emphasize the Court opinions, the opinion that declares which party in the case won or lost and, more important, why they deserved to do so. In explaining the Court’s opinion or in concurring with or dissenting from it, justices present reasoned arguments on the meaning of the Constitution or the law; on precedents or previous, similarly decided cases; or on the implications of this case for deciding later ones. Therefore, in these later cases (from the 1980s to the present), where the opinions of the justices are more divided, we often represent cases through dissenting or concurring opinions rather than the Court opinions. In addition to reflecting on the consequences of earlier decisions, concurring or dissenting opinions sometimes show the direction in which the Court is moving. Collections such as these are not intended to be read straight through from beginning to end—as ambitious and useful as this might be. Locating a particular case in the stream of precedents—similarly decided cases—is crucial for understanding it. Justices bolster their arguments by reference to earlier Court opinions and write theirs with an eye to shaping future ones. At which cases, however, should a reader enter the often contentious conversation of the justices? One place to start is with the last three cases in the collection, Documents 21-23. The first of these three introductory cases is Town of Greece v. Susan Galloway, et al. This case decided whether a New York State city council’s practice of opening its meetings with sectarian prayers, those of a particular religion, violated the Constitution. In her dissent, Justice Elena Kagan presents a moving series of objections that the practice actually does “tend to establish” a religion by making it appear official to citizens attending the meetings. Writing in support of the Court majority, concurring Justice Samuel A. Alito argued, against Justice Kagan, that she exaggerated the seriousness of the town’s actions or inactions. With the arguments of the justices in mind, the reader might review why the Court ruled school prayer unconstitutional in Engel v. Vitale and Lee v. Weisman. The issue of establishment concerns not only prayer but the place of religious symbols (as in Christmas displays on public property, Lynch v. Donnelly, including representations of the Ten Commandments (See Van Orden v. Perry and McCreary County v. ACLU of Kentucky). These cases show how the Court has expanded what it means to establish religion, that is, for government to endorse, support, or prefer, one particular religion to the disadvantage of others. Is the government endorsing a religion when a public school permits a football pep rally with a student-led prayer? What of a town’s war memorial, a 40-foot high cross at a major highway, to the region’s fallen veterans? The principles involved in the town of Greece case go far beyond the city council chambers. Next, the reader might turn to Trinity Lutheran Church of Columbia, Inc. v. Comer, a case involving state aid for a religious school’s playground. This Missouri case illustrates the potential conflict between the ways the Court has understood the Establishment Clause and how it has understood the Free Exercise Clause. May a state prohibit a religious school from competing for a state grant to pave a playground? Is the state denying the school’s free exercise of religion or is it preventing establishment of religion? To see how the Court has decided this conflict, the reader might turn to the first school cases, including Everson v. Board of Education and McCollum v. Board of Education. These early cases set forth the doctrine that government may not directly aid religious schools or promote religious doctrines in the public schools. These should not be read without Justice William H. Rehnquist’s dissent in Wallace v. Jaffree, which provides a different historical account of the meaning of religious establishment. According to Justice Rehnquist, “establishment” meant not aiding religion but setting up an official state church. (In Lee v. Weisman, Justice David H. Souter offered a different history, leading to a different conclusion.) The later school funding cases of Lemon v. Kurzman and Zelman v. Simmons-Harris, show the complexities of the funding issue and how the Court has expanded the type of aid that a school could receive from government. Arguments over free exercise rights are foreshadowed in Church of Lukumi Babalu Aye, Inc. v. Hialeah and Locke v. Davey, among other cases. In Trinity Lutheran Church of Columbia, Inc. v. Comer the clashing opinions of Justices Neil Gorsuch and Sonia Sotomayor offer a series of arguments for and against the constitutionality of state aid to a church-run school based on their respective understandings of religious freedom and establishment of religion. Masterpiece Cakeshop, Ltd., et al., Petitioners v. Colorado Civil Rights Commission, et al. raises the question of the reach of the Religious Free Exercise Clause. May a business owner use his religion as a restraint on the scope of civil rights laws? The first case in the book, Reynolds v. U.S., a unanimously decided case, turned aside Reynolds’ contention that the Free Exercise Clause of the First Amendment meant that it protected the polygamy his Mormon faith permitted. The Court found that freedom of religion cannot justify violating laws against improper or criminal behavior—the core of the controversy the religious business owner faced in Masterpiece Cakeshop. From Reynolds one might review the older free exercise cases, including the flag salute case of West Virginia v. Barnette and Wisconsin v. Yoder, which exempted Amish children from state school attendance laws. Perhaps the most controversial free exercise case is Oregon v. Smith, which ruled that a person’s free exercise of religion is not violated by an otherwise valid law. Church of Lukumi Babalu Aye, Inc. v. Hialeah and Burwell v. Hobby Lobby further expanded free religious exercise, the latter through its interpretation of a law, rather than the First Amendment. These elaborations on three cases are just examples of how the cases can be linked to illustrate continuities and breaks in the interpretation of the law. Another way to approach the cases is by asking basic questions, such as what is free exercise, what is establishment, what might the elected branches do to protect First Amendment rights? Did the Court get off on the wrong step by defining establishment as not only government favoring one religion over another but more broadly by favoring religion over non-religion? Consider the very first Establishment Clause cases involving schools, Everson v. Board of Education, McCollum v. Board of Education¸ and Engel v. Vitale. Does aiding a religious school advance, that is, tend to establish, that religion? Apparently, funds for school construction pass muster but, at least at one point, funds for teachers’ salaries do not. (See Lemon v. Kurtzman). Perhaps the strongest expression of this viewpoint occurs in Justice John Paul Stevens’ and Justice Souter’s opinions. In Wallace v. Jaffree, Justice Stevens wrote that “[T]he First Amendment requires that a statute must be invalidated if it is entirely motivated by a purpose to advance religion.”  Likewise, Justice Souter in the school prayer case of Lee v. Weisman wrote of “the settled principle that the Establishment Clause forbids support for religion in general no less than support for one religion or some.” (See as well Justice Sotomayor’s dissent in Trinity Lutheran). Contrast these views on how governments should treat religion with Justice Rehnquist’s dissent in Wallace v. Jaffree, Justice Clarence Thomas’s concurrence in Van Orden v. Perry, and Justice Antonin Scalia’s dissents in Lee v. Weisman and McCreary County, all of which emphasize a government interest in promoting religion in general. This view seeks support in the traditional use of religious language and ideas in public proclamations by presidents and Congress, as in Lincoln’s Gettysburg Address. In fact, in this view, the elimination of a national established religion on the one hand and the public embrace of religion on the other are both necessary for the promotion of free religious exercise, a central purpose of the first amendment. Justice Souter replied to this objection, contending, in Lee, that “religious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular, inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.” Do school principals then need to be monitored more closely than presidents for constitutional violations? In his Van Orden concurrence Justice Thomas made the test of constitutionality whether beliefs were being coerced—that is punished by legal penalties. Does his likening of religious expression to free speech—whose constitutionally protected robustness can be acrimonious, vulgar, and even dishonest—fail to protect religious minorities? Must we choose between religious free exercise and religious establishment? Have the Court’s interpretations over the past 70 years actually made these opposed principles? Is accommodating a minority religion the same as privileging it? Is a state law allowing moments of silence in public schools a subtle way of legalizing prayer and therefore establishing a religion? Are there not ways to see free exercise and establishment as parts of a larger comprehensive view of religious freedom? All of this discussion leads to other questions, such as the proper constitutional role for the Court to play. Early on, Justices Felix Frankfurter and Robert H. Jackson (See West Virginia v. Barnette and McCollum v. Board of Education) worried that the Court was substituting its own opinions for the practical wisdom of elected legislatures and school boards. Justices Rehnquist and Scalia would also see practical wisdom expressed in the religious language in presidential speeches and proclamations, congressional resolutions, and the traditions of the American people (See Wallace v. Jaffree and Lee v. Weisman). Contrast these views with the confidence of Justices Souter and Stevens on the Court’s judgments versus their skepticism of the views from the past, which they regard as antiquated. Justice Stevens once declared in dissent, “Fortunately, we are not bound by the Framers’ expectations—we are bound by the legal principles they enshrined in our Constitution,” which the Court interprets (See Van Orden v. Perry). But how much confidence should we citizens have in the wisdom of the Court? Or the justice of our traditions? These are a few of the many questions readers of these opinions ought to be raising as they exercise their capacities as human beings and citizens. Ultimately, it is not the Courts but informed citizens who will determine the vitality of the First Amendment and of republican self-government.