What Are the Free Exercise Clause and the Establishment Clause of the 1st Amendment, and How Do They Differ From Each Other?
The First Amendment has two provisions concerning religion: the Establishment Clause and the Free Exercise Clause. The Establishment clause prohibits the government from "establishing" a religion. The precise definition of "establishment" is unclear. Historically, it meant prohibiting state-sponsored churches, such as the Church of England.
The First Amendment provides: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” These two clauses are referred to as the “establishment clause” and the “free exercise clause.” As with that part of the First Amendment which protects freedom of speech, both of these clauses have been applied to the states, and therefore operate against all levels of government in the United States. The free exercise clause protects the religious beliefs, and to a certain extent, the religious practices of all citizens. The more controversial establishment clause prohibits the government from endorsing, supporting, or becoming too involved in religion and religious activities. Both clauses protect the same values, and often a violation of one would also be a violation of the other. For example, mandatory prayer in schools would constitute an improper establishment of religion and would also interfere with the free exercise rights of those students who did not believe in that particular prayer or prayer in general. There is, however, an inherent tension between the two clauses. If the government goes too far in protecting one, it risks violating the other. For example, if the government refuses to provide certain services (i.e., fire and police protection) to churches, that might violate the free exercise clause. If the government provides too many services to churches (perhaps extra security for a church event), it risks violating the establishment clause. If schools prohibit all student prayer on school property, they may violate the free exercise clause. But if they allow student led prayers during school hours, they may violate the establishment clause.
The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices (Tax Comm’n, 397 U.S.). So far, the Court has harmonized interpretation by denying that free-exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause. There is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without [governmental] sponsorship and without interference (Nyquist, 413 U.S. 756).
Summing up, the purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter respecting an establishment of religion.
Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45 (1987).
Tax Comm’n, 397 U.S. at 669.
Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788–89 (1973)