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The First Amendment Protection of Freedom of Religion

How does the First Amendment protect the freedom of religion?

The United States Constitution guarantees that all individuals can practice their religion of choice. The First Amendment provides it explicitly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

The first part, that the government will not “establish” a religion means that the government will not endorse a particular religion. It will not give funding to any particular religion or church; it will not give preference to people who follow a certain religion. And it will not disfavor any other religion. 

Then comes the guarantee that everyone has the right to freely exercise their religion. The right to practice one’s religion means more than the right to attend church, mosque, or temple. A person’s faith might require her to take certain days off work; to dress or groom in a certain way; or to engage in certain practices or rituals (e.g. pray during the workday, use psychedelic drugs).

The government must protect individuals’ rights to religious freedom, but it also must run the rest of the country. It must safeguard people from physical harm and financial harm. It must promote health and welfare by instituting a number of government structures and benefits. Religious liberty can conflict with one of these government operations. That’s when a court might help out — deciding which is more important.

How Religious Freedom Can Conflict with General Legislating

While the government must support the free exercise of religion, it also must take care of public safety. You can’t say your worship requires you to steal and murder and expect the government to support you. The government has a stronger interest in protecting the public from stealing and bodily harm.

While that example is an obvious one – where the moral code of humanity (presumably a secular one) – should win over your religious practice, there are many other instances in which a religious practice or idea conflicts with a less-clear public safety concern. Courts must step in and decide which is more important: the religious practice or the government’s interest.

Early Religious Freedom Cases

An individual may bring a case to complain that a law — even one which was intended to be neutral towards religion — violates the person’s religious freedom. 

An early Supreme Court case held that while the First Amendment protects an individual’s right to religious belief, it does not necessarily mean the government must allow all religious practices. In 1879, the Supreme Court ruled that the practice of polygamy was not a protected religious practice.

Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Reynolds v. United States (1879).

Over a hundred years later, the Court did, however, respect the right of an individual to practice her religion. In Sherbert v. Verner (1963), a Seventh-day Adventist who was fired from her job for refusing to work on Saturday, her holy day, was rejected in her request for unemployment benefits because she had failed to accept available work. The Supreme Court overturned the denial of benefits, saying the state could not expect her to work on Saturday when it allowed employees to refuse to work on Sundays because of their religious beliefs.

In Employment Division v. Smith (1990), the Court went the other way on a challenge to a denial of unemployment benefits. In Smith, two members of the Native American Church were fired from their jobs as counselors for ingesting peyote, a hallucinogenic drug, during a religious ceremony. The former counselors were denied unemployment benefits because the state agency determined their job dismissals were based on work-related “misconduct.” The church members challenged the denials of benefits based on religious freedom. The Supreme Court rejected tribe members’ arguments, deciding that First Amendment cannot provide an exception to every state law that incidentally affects a religious practice.

Before Smith, courts applied strict scrutiny to laws that restricted an individual’s religious liberty. But Smith determined that strict scrutiny would only be used to evaluate a law that actually singles out a religion to treat it negatively.

Why Minority Religious Practices are in Need of Advocacy

While the American government does officially “establish” a religion, the nation’s lawmakers are overwhelmingly Christian. In 2019 the Pew Research Center reported of the 116th Congress:

The religious composition of the new Congress is very different from that of the U.S. adult population. While the number of self-identified Christians in Congress has ticked down slightly, Christians as a whole – and especially Protestants and Catholics – are still overrepresented in proportion to their share in the general public. But by far, the largest difference between the U.S. public and Congress is in the share of people who are unaffiliated with a religious group. In the general public, 23% say they are atheist, agnostic or “nothing in particular.” In Congress, just one person says she is religiously unaffiliated – Sen. Kyrsten Sinema, D-Ariz., who was recently elected to the Senate after three terms in the House.

Aleksandra Sandstrom, 5 facts about the religious makeup of the 116th Congress, Pew Research Center (Jan. 3, 2019).

What does that mean? It means that the lawmakers are less likely to create laws conflicting with Christian religious practices than they are to make laws conflicting with minority religious practices. 

Of course, not all Christians follow the same practices. Abortion is one such example. Gay rights causes another conflict within Christian sects. State legislatures have passed controversial laws relating to these issues, and they’ve brought Christians into the courts seeking either exemption from the laws or to overturn them.

Recent Cases Regarding Religious Freedom

The Supreme Court recently addressed a claim from a cake shop owner challenging the constitutionality of a Colorado anti-discrimination law (Masterpiece Cakeshop v. Colorado (2018)). Colorado prohibits shops and restaurants from discriminating against customers on the basis of sexual orientation. A cake shop owner was approached to create a wedding cake for a same-sex couple, and refused on the basis of his religious beliefs against gay marriage. The gay couple sued and got the Colorado Civil Rights Commission to rule that the cake shop owner had violated the law. The cake shop owner challenged the application of the law to him as a violation of his right to religious freedom. In resolving the case, the Supreme Court declined to make a highly-precedential ruling about the priority of religious freedom over state anti-discrimination laws. Instead, the Court made a ruling limited to the facts of the case: that the Colorado Civil Rights Commission had discriminated against the cake shop owner in applying the law.

Also in 2018, the Supreme Court addressed the application of a California law alleged to conflict with religious freedom. In NIFLA v. Becerra (2018), anti-abortion clinics sued the state, arguing that California could not require it to give women notices about the availability of abortion because it conflicted with the clinics’ religious freedom (beliefs against abortion). The Supreme Court ruled that the clinics were likely to win on their First Amendment claim because the regulations were not sufficiently justifiable to pass First Amendment scrutiny.

In 2020, the Supreme Court ruled churches can be exempt from employment discrimination laws. Back in 2012, the Supreme Court allowed for a “ministerial exception,” where employment laws would give way to a church’s right to govern itself. With the “ministerial exception,” a church can control how it hires and fire its ministers (or sufficiently high-up employees) without interference by U.S. laws. In Our Lady of Guadalupe v. Morrisey-Berru (2020), a church sought to apply the exception beyond just “ministers” of the church but to any employees that uphold the ways of the church, like teachers. The Supreme Court agreed. As of the ruling, a church can escape claims of anti-discrimination by teachers, even those claims not necessarily related to the religious beliefs of the church (e.g. age discrimination).

Religious Challenges to Covid-19 Legislation

Religious groups have also managed to escape pandemic-related safety restrictions under the name of religious freedom. In response to the Covid-19 pandemic, state and local governments around the country have passed legislation limiting large gatherings of people, including religious gatherings. Religious groups have challenged the restrictions as violations of their religious liberties.  

A handful of the cases reached the Supreme Court in 2020-21. The Supreme Court acted on most of them in its Shadow Docket, meaning they were emergency applications outside of the Court’s regular docket. The replacement of the liberal Justice Ruth Bader Ginsburg with the conservative and Christian Justice Amy Coney Barrett gave very strong hand to the proponents of religious freedom.

With Barrett the Supreme Court has ruled overwhelmingly in favor of the churches, overruling state government restrictions. The Court determined that the state governments are targeting religious groups for stronger restrictions than they impose otherwise. In the precedential ruling out of New York, for example, the Court blocked enforcement of an order by Governor Cuomo limiting religious gatherings to ten people at a time. The Court said the order was not religiously-neutral, which the First Amendment requires:

[W]hile a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. 

Roman Catholic Diocese of Brooklyn v. Cuomo, Opinion on Application for Injunctive Relief (Nov. 25, 2020).

While Christian churches have led the pack of cases, Jewish and other faith groups are piggy-backing on their wins. 

Religious freedom has become a major area of conflict in the country in the past several years. Supreme Court precedent in this area will be instrumental in determining the power of states to legislate on controversial issues.

The First Amendment Protection of Freedom of Religion

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About the Author

Mariam Morshedi

Mariam Morshedi

Mariam Morshedi is the Founder and Executive Director of Subscript Law. Before starting Subscript Law, she practiced civil rights law for AARP Foundation, where she litigated housing, consumer and disability rights issues.

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