The Historical Applications of the Free Exercise and the Establishment Clauses

By: Thomas Walsh

The First Amendment to the Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[1] Like many documents written near the time of the founding of the United States, its vague nature has led to significant conflicts over the following centuries. Recently, the Dobbs v. Jackson Women’s Health Organization ruling overturned the precedent set by Roe v. Wade that determined that the Constitution protects abortion access on a federal level.[2] Additionally, this overturning has sparked discussions within the United States about the possible entanglement of religion and government within the law. These discussions are so because most arguments regarding abortion take one of two stances: the civil rights provided to a pregnant woman must be respected, thus advocating for abortion legality, or the right to life for a developing fetus is cause enough to ban abortion. The latter is the stance of most major American religious institutions, believing that the life of a human being begins with its conception, and liberal religious groups and secular groups tend to support the former stance. These conflicts have provoked reinvigorated discussion regarding the First Amendment’s wording on the protection of religion and civil protection from a state-enforced religion. A history of similar conflicts exists; from foundational rulings determining the rights granted to the unorthodox Mormon religion to the creation of the “Lemon Test,” a litany of precedent has been set in US legal history regarding the applications of the First Amendment’s Free Exercise and Establishment Clauses.

Reynolds v. United States, one of the first notable court cases regarding a conflict between religious beliefs and the law, set a foundation for governmental regulations regarding religious activities.[3] George Reynolds, a member of the Church of Jesus Christ of Latter-Day Saints (otherwise referred to as the Mormon Church), was fined $500 and sentenced to two years of hard labor for violating a federal law prohibiting polygamy. Reynolds appealed the case to the Supreme Court on the grounds that the law violated the First Amendment’s Free Exercise Clause; Congress violated his right to practice religion by prohibiting him from practicing an activity central to Mormon theology of the period. In 1879, the Supreme Court ruled unanimously to uphold the law, saying that although Reynolds had the right to believe polygamy was morally right, he did not have the right to practice an activity that opposed general moral notions. Chief Justice Morrison Waite justified this by arguing that permitting this “would be to make the professed doctrines of religious belief superior to the law of the land.” Essentially, they justified their ruling by the notion that the government would regulate religious activity in the future if it opposed the law and was detrimental to the nation’s moral well-being.

Other rulings regarding religious rights include Minersville School District v. Gobitis, a case in which the Supreme Court ruled that public school districts could force students to salute the United States flag regardless of religious objections.[4] Justice Felix Frankfurter said religious freedom does not provide citizens an “exemption from doing what society thinks necessary for the promotion of some great common end.” The Supreme Court would overturn this ruling three years later in West Virginia Board of Education v. Barnette, setting a precedent for the government’s future assertions that it would not promote individual religious beliefs unless doing so was believed to advance a “great common end.” The Supreme Court would, however, rule that the government was not allowed to require a license to exercise religion in Cantwell v. Connecticut, thus affirming that governmental approval was not necessary for religious practices and exercises.[5] As such, the Supreme Court ruled in Torcaso v. Watkins that states could not require political candidates to affirm their belief in God. In one such case, a Maryland statute had required hopeful state office holders to declare their faith in God, but the First Amendment’s Establishment Clause prevents such outright establishments of a state-sponsored religion.[6]

As is the case with any state-sponsored affair, religion’s entanglement with education has been the subject of many additional cases. An early example of this conflict came in 1947 with Everson v. Board of Education, wherein the Supreme Court upheld a statute that allows parents to be reimbursed for using public transportation to send their children to school, even if the school is a religious institution.[7] The Supreme Court upheld the statute because such a rule benefitted all parents, not just parents of students at religious schools, thus not violating the First Amendment’s Establishment Clause. An important controversial ruling came in 1962 with Engel v. Vitale, when the Supreme Court ruled on a New York state law requiring public schools to open each day with a nondenominational prayer featuring voluntary participation. Though the prayer lacked a defined denomination and students were not required to participate, the Supreme Court ruled that the time and resources dedicated to the prayer violated the Establishment Clause. This ruling would inflame debates and anger for decades to come, though another case would establish a procedure to determine the fit of laws to the Establishment Clause.

Pennsylvania and Rhode Island had enacted statutes during 1968 and 1969 which funded religious schools by providing, in part or in full, the salaries of teachers in secular fields and school supplies to be used for a secular purpose.[9] The Rhode Island case, Earley v. DiCenso, was heard concurrently with the more commonly known Pennsylvania case.[10] Lemon v. Kurtzman, the case brought against the Pennsylvania statute, addressed a program that went further than the Rhode Island case in providing financial support to religious schools, paying the salaries of teachers given that they taught classes of exclusively secular content within the religious school.[11] On June 28, 1971, the Supreme Court decided that the statutes were unconstitutional, citing a three-pronged test used to assess the validity of laws regarding religion in the United States based on previous decisions, which would come to be known as the “Lemon Test.” The test asserted that a statute must “have a secular purpose,” its purpose “must be one that neither advances nor inhibits religion,” and that “the statute must not foster an excessive government entanglement with religion.” As such, the Supreme Court felt that neither the Pennsylvania statute nor the Rhode Island statute was permissible by the Establishment Clause as each fostered government entanglement with religion.

Though the Lemon Test and other methods of determining the constitutional validity of government actions regarding religion can seem just as vague and inconsistent as the rulings and laws they mean to clarify, there have been several cases in which precedent has been set in interpreting the Free Exercise and Establishment Clauses. As accusations continue to be brought forth about religious conservatism and its entanglement with the Court through cases like Dobbs v. Jackson Women’s Health Organization, the precedent set by past landmark cases regarding the First Amendment’s Free Exercise and Establishment Clauses ought to be understood to better steer the course of American legislation and justice.

[1] U.S. CONST. amend. I.

[2] LEGAL INFO. INST., Jane ROE, et al., Appellants, v. Henry WADE, CORNELL L. SCH., (last visited Sep. 26, 2022).

[3] John R. Hermann, Reynolds v. United States (1879), The First Amend. Encyclopedia, (last visited Sep. 26, 2022).

[4] Alex Aichinger, Minersville School District v. Gobitis (1940), THE FIRST AMEND. ENCYCLOPEDIA, (last visited Sep. 26, 2022).

[5] Megan L. Rehberg, Cantwell v. Connecticut, ENCYCLOPÆDIA BRITANNICA, (last visited Sep 26, 2022).

[6] BERKELEY CTR. FOR RELIGION, PEACE, AND WORLD AFFS., Torasco v. Watkins, GEO. UNIV., (last visited Sep. 26, 2022).

[7] Artemus Ward, Everson v. Board of Education (1947), THE FIRST AMEND. ENCYCLOPEDIA, (last visited Sep. 26, 2022).

[8] Facts and Case Summary – Engel v. Vitale, U.S. CTS., (last visited Sep. 26, 2022).

[9] GLOB. FREEDOM OF EXPRESSION, Lemon v. Kurtzman, COLUM. UNIV., (last visited Sep. 26, 2022).

[10] Patrick T. Conley & Fernando Cunha, State Aid to Rhode Island’s Private Schools: A Case Study of DiCenso v. Robinson, 22 CATH. LAW. 329 (1976).

[11] BERKELEY CTR. FOR RELIGION, PEACE, AND WORLD AFFS., Lemon v. Kurtzman, GEO. UNIV.,–2 (last visited Sep. 26, 2022).