Nahmod Law

The Religion Clauses: ‘Tis the Season


The first part of the First Amendment reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”

These sixteen words containing the Religion Clauses have for the last fifty years caused a great deal of controversy not only in the United States Supreme Court but among the public at large. What I would like to do here is set out some basic points without getting bogged down in the legalities.


The Framers studied  the religious wars of Europe and knew of their terrible impact on religious freedom and on the  lives of Europeans.  They also had a good understanding of the political divisions that religion created in the colonies. In drafting the First Amendment, they were determined to avoid as much of this divisiveness as possible while at the same time insisting on the importance of religious belief for morality, and on freedom of thought.

Historically, I think it’s fair to say that Jefferson and Madison were what we would today call separationists, while Washington and John Adams were what we would today call accommodationists.


The Constitution is a product of Enlightenment thought under which people engage in self-government through the application of reasoned deliberation. The popular understanding of the Religion Clauses is that they were intended to protect government from the passions of religion, which is grounded not on reason but on faith and obedience.

However, what is often ignored, especially by those who propose greater government support of “mainstream” religions as well as by proponents of faith-based social programs, is that the Framers were equally concerned with the adverse impact of government involvement on religion. Madison in particular, in his Memorial and Remonstrance, worried about the effect of government financial support of religion on religious values and practices.

Broadly put, then, the Religion Clauses were intended not only to protect government from religion but, equally important, also to protect religion from government.

Some Constitutional Principles

1. Even though the First Amendment applies on its face to Congress, it has long been the case that it applies to the states and local governments as well.  However, it does not govern private conduct.

2. The Religion Clauses do not themselves set out the legal standards that are used by the Supreme Court in interpreting and applying the Religion Clauses. It is the Court that must tease out those standards from the history and purposes of the Clauses. These standards, which focus in Establishment Clause cases on both the purposes of government  acts and the effects of those acts (these are the first two parts of the Lemon test), are applied in controversial  cases involving school prayer, school funding and government displays of religious symbols. Under this test, for example, school-sponsored prayer cases are relatively easy because such prayers typically have an impermissible religious purpose

3. For present purposes, it suffices to observe that in the last several decades, the Court has moved dramatically from a separationist to an accommodationist position under which the government may not only display religious symbols but may also provide direct support to religious institutions under certain circumstances. School-sponsored prayers remain proscribed. Still, the Court’s recent decisions amount to a sea change in Establishment Clause jurisprudence.

4. Just as the Court has recently given government more leeway when it comes to support of religion, it has done the same for the Free Exercise Clause. Though government cannot single out a particular religion or religion in general for disadvantageous treatment, it can legislate neutrally to regulate conduct in a way that burdens religious behavior. For example, government could theoretically require all male circumcisions to be performed by doctors in hospitals in order to promote health and safety. So long as this requirement were not directed at, say, Judaism and Islam, it would be constitutional and would not violate the Free Exercise Clause. The only safeguard against such legislation is the political process.

Concluding Observations

There are currently few bright line rules in Establishment Clause jurisprudence. Here especially, issues are decided by the Court on a case-by-case basis. Also, it is clear that controversial Religion Clauses cases will continue to come before the Court for resolution in light of the raw emotions that religious issues generate in the United States.

I hope this post provides some Religion Clauses background for the general reader during the Christmas/Hanukah season.

Written by snahmod

December 18, 2009 at 4:42 pm

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