The Protection of Religious Freedom Under the American Constitution

This essay discusses the two-fold protection given to freedom of religion in the American constitutional system. The Establishment Clause protects against the establishment of an official church by the government and against governmental action establishing religion, while the free exercise clause is a textual guarantee of peoples' right to practice their religion and to hold and act on religious beliefs, free from governmental interference. With respect to the Establishment Clause as a protector of religious freedom, the article emphasizes that when the courts strike down governmental action advancing religion as violative of the Establishment Clause, such as when they hold that the Establishment Clause prohibits school-sponsored prayer or bible reading in the public schools or that it prohibits the use of public funds for religious purposes, the courts are not acting with hostility toward religion, but rather are acting to protect the religious freedom of all of us, and particularly the freedom of religious minorities. The author suggests that this point is often not fully understood by religious believers, who may see such restrictions as demonstrating hostility to religion. Again it is not hostility to religion, but a structural concern for religious freedom that prohibits the government from using its power to advance or inhibit religion. When it comes to the Free Exercise Clause, the Court has been reluctant to interpret that Clause too broadly, lest it end up with a Free Exercise-mandated exemption from the application of facially-neutral and generally applicable laws. Moreover, some of the governmental actions that might be challenged as violative of the Free Exercise Clause have instead been held to be violative of the Establishment Clause, so to some extent, Free Exercise claims have been subsumed by the Establishment Clause. The author says that the most interesting part of the constitutional protection of religious freedom is the matter of affirmative efforts on the part of the government to protect the religious freedom of individuals and religious institutions. Part of the essay is the discussion of the affirmative protection of religious freedom, which brings into play the interaction of the Establishment Claus and the Free Exercise Clause. Here we see the interaction of the Establishment Clause with the Free Exercise Clause to advance the constitutional value of religious freedom. The operative principle in this area may be stated as follows. Governmental action that has the effect of providing a preference for religion over non-religion violates the Establishment Clause, but governmental action that is precisely tailored to protect the religious freedom of individuals and religious institutions does not violate the Establishment Clause. The crucial question in these cases, therefore, is whether the governmental action is an unconstitutional preference for religion, or a precisely tailored and so constitutionally permissible means of protecting the religious freedom of individuals and religious institutions. The permissible means of protecting religious freedom is illustrated by the Supreme Court's decision in Cutter v. Wilkinson, 544 U.S. 709 (2005), upholding a provision of federal law requiring states that receive federal funds to make a reasonable accommodation for the religious practices of prison inmates. The Court found that this law qualifies as a permissible legislative accommodation of religion that is not barred by the Establishment Clause, because it alleviates exceptional government-created burdens on private religious exercise and protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. The essay discusses other permissible actions designed to protect the religious freedom of individuals, which include: an exemption from the former Sunday closing laws for Sabbatarians who closed their businesses on Saturday; during Prohibition the exemption for sacramental wine used in religious services, and a modern equivalent, the exemption from the federal substance abuse laws for the use of peyote in the religious ceremonies of Native-American tribes; an exemption from the federal Eagle Protection Act to permit members of Native-American tribes to use eagle feathers in their religious services; the exemption in the federal Humane Slaughter Law for Jewish religious slaughter and now for Halal religious slaughter and for that of all religious faiths that use the severance of the carotid artery method of slaughter; an exemption from social security self-employment taxes for members of religious sects that have tenets opposed to participation in the social security system and that provide reasonable support for their dependent members; an exemption for Amish buggies from the requirement that slow-moving vehicles display a special emblem; and actions to protect the religious freedom of persons subject to governmental control, such as the Dearborn, Michigan public schools making arrangements for their Moslem students to pray at required times during school hours.