The first clause of the First Amendment, that Congress shall “Make no law respecting an establishment of religion or prohibiting the free exercise thereof” is routinely challenged and has been since its inception 244 years ago. What it means exactly is still up for interpretation.
“There’s always a struggle between freedom from religion and freedom of religion,” observed Randall Beeman Ph.D., Pepperdine professor of American history. “People want the right to be irreligious, as much as they want the right to be religious.”
Many of the first settlers of the American Colonies fled religious persecution in their home countries, leading to a distaste for religious intolerance and state-enforced religion.
“It’s a period where we [were] coming out of the enlightenment,” Beeman said. “Europe went through hundreds of years of religious wars, so the founders of this country wanted to avoid getting into that kind of a situation.”
According to History.com, there was still religious conflict in the Colonies, both before and after the Bill of Rights were ratified. The principle of religious tolerance ultimately won, largely due to Roger Williams, a Puritan dissident, who was banned from Massachusetts in 1635 and founded Rhode Island with no established religion. Catholics and Protestants continued to fight violently in the other colonies and even when the Bill of Rights were ratified (1791), it took time to separate states from the church.
“In the beginning there were state sponsored churches,” Beeman said, adding that it took several decades under the Constitution before the ability of state governments to impose a tax to support churches eventually faded away.
The Supreme Court rules inconsistently in matters of Freedom of Religion. In fact, the high court developed criteria during the 1971 case, Lemon v. Kurtzman, to determine whether or not the First Amendment is violated by a government rule: “A statute is constitutional if: (1) it has a primarily secular purpose; (2) its principal effect neither aids nor inhibits religion; and (3) government and religion are not excessively entangled.” (Bill of Rights Institute).
Lemon v. Kurtzman questioned whether it was constitutional for Pennsylvania to use state funds to reimburse private religious schools for teachers’ salaries and textbooks and did not pass the test.
More recently, the establishment clause, which refers to the government’s infringement on freedom of religion rather than the citizen’s right to practice it, faced scrutiny during the 2017 case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, during which a Christian baker refused to bake a cake for a same-sex couple on the grounds of religious beliefs.
The Supreme Court ruled 7-2 in favor of the baker. They did so, however, on the grounds that the Colorado Civil Rights Commission “expressed impermissible hostility to religion and thus violated the free exercise clause of the First Amendment,” according to AmericanBar.org.
Unfortunately, the Supreme Court has yet to draft a significant test for determining whether a given action is classified as discrimination or an expression of freedom of religion, clearing the path for this to be addressed in the future.
In 2017, President Trump issued an executive order suspending immigration from six Muslim countries on the grounds that they posed security risks. The state of Hawaii called the constitutionality of Trump’s decision into question on the basis that it violated the establishment clause because it discriminated against Muslim countries. In the 2017 case, Trump v. Hawaii, a 5-4 decision in favor of Trump, according to supremecourt.gov, in which Justices Sotomayor, Kagan, Ginsberg, and Breyer dissented.
In her dissenting opinion, Justice Kagan compared the ruling to the 1944 case Korematsu v. U.S, where the court ruled that Japanese internment camps were a “military necessity,” according to uscourts.gov.
“I’ve witnessed within my own family a lot of Islamophobia,” Beeman said. “Some of my own relatives have fought against allowing mosques to be put in the town they live in.”
Only last week, the Supreme Court recently agreed to hear an appeal by the Trump administration’s ongoing efforts to repeal the 2010 Affordable Care Act (ACA) in a legal fight over religious exemptions for the ACA’s requirement that employer-based health insurance plans cover birth control.
Religious exemptions for vaccines are also being sought for deadly diseases, virtually extinguished by vaccines, according to a 2019 article by the Pew Research Center (“Amid measles outbreak, New York closes religious exemption for vaccinations – but most states retain it,” June 28, 2019. pewreasearch.org/facttank). New York became the fifth state, including California, Mississippi, Maine, and West Virginia, to disallow religious exemptions for vaccinations.
There is no Supreme Court case challenging the constitutionality of these rulings but that could change. Among the 44 states that specifically allow religious exemptions to vaccinations, 15 also allow exemptions for any type of nonreligious personal belief, according to the Center’s analysis.
By Judith Brister