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Distinguish Between an “Establishment of Religion” and “Free Exercise”

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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.

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The First Amendment to the U.S. Constitution begins with what are known as the religion clauses: “Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof . . . .” Note that initially the First Amendment only limited the actions of Congress, our national legislature, but not the governments of any of the states. That came later. The phrases establishment of religion and free exercise of religion mean different things. Most British colonies in America before 1776 had “established churches,” churches that received direct financial support from taxpayer money. Several states in the early American republic also had established churches. The establishment clause protects against the federal government’s funding or sponsoring particular religious views. The free exercise clause serves another purpose: It prevents the government from interfering with people’s religious beliefs and forms of worship. It was many years before the Supreme Court heard its first case involving the free exercise clause. In the 1820s, a man named Joseph Smith had spiritual visions, and from his visions came the new religion of the Church of Latter-day Saints, whose adherents are called Mormons. Throughout the 19th century, the Mormon faith spread as the charismatic Smith gathered followers. Among the Mormons’ more controversial practices was polygamy, or men having multiple wives. Joseph Smith based his belief in polygamy on biblical examples of the practice, though his followers did not, at first, accept this part of his revelation.

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The difference between rights and structure within the overall Constitution is commonplace. For government to avoid violating an individual right is a matter of constitutional duty owed to each person within its jurisdiction. This duty is personal, running in favor of each rights holder. On the other hand, for government to avoid exceeding a structural restraint is a matter of confining legislation and the actions of its officials to the scope of its delegated powers. These restraints are impersonal, running in favor of the entire body politic. Although individual rights can be waived because they are personal, institutional structure cannot. The difference between rights and structure manifests itself in additional but often subtle ways that can prove definitive (Laurence H. Tribe, 1988). Nevertheless, the immediate object of constitutional structure is the management of power: a dividing, dispersing, and balancing of the various prerogatives of sovereignty. "Separation of powers" and "federalism" are mere shorthand for familiar forms of constitutional structure running horizontally and vertically, respectively, within the threebranch federal government and the multilayered system of national, state, and local governments. Structural clauses are helpfully thought of as power conferring and power limiting, so long as it is understood that many such clauses serve both functions (Daan Braveman, 1996).

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Briefly, in the 1990 case of Employment Division v. Smith, the Court changed positions and held that as long as a law was applied to all persons and was not passed specifically to interfere with religion, it would be upheld even if it significantly affected religious practices. The Court held that the state could deny unemployment benefits to a group of Indians who had been fired for using peyote even though they claimed that it was needed in their religious ceremonies. The state was not required to make any special justifications for the law. Congress tried to reverse the decision in Smith by passing the Religious Freedom Restoration Act. This required states to show a compelling need for any law that burdened a person’s exercise of religion and that the law was the least restrictive means of satisfying that need. The Supreme Court, however, held that the statute violated the establishment clause because its primary purpose was to advance religion.

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Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech, 3rd ed. (Deerfield, Ill.: Clark Boardman Callaghan, 1996)

Daan Braveman, et al., Constitutional Law: Structure and Rights in Our Federal System, 3' ed. (New York: Mathew Bender, 1996), v-vi, 153, 193, 257,

Laurence H. Tribe, American Constitutional Law, 2'd ed. (Mineola, N.Y.: Foundation Press, 1988).

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Distinguish Between an “Establishment of Religion” and “Free Exercise”
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