The First Amendment to the United States Constitution

The religion clauses are the opening of a sentence that goes on to protect speech, press, assembly and petition, and they were drafted last, in conference, out of several competing versions. What emerged was: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Two things about the wording repay attention. The first is respecting. Congress may not make a law establishing a religion, and it also may not make a law respecting an establishment, which was read at the time as leaving the state establishments alone. Massachusetts maintained a tax supported church until 1833. The clause restrained the federal government and nothing else.

The second is that the two clauses can pull against each other. A law that exempts a religious body from a general requirement protects free exercise, and can be attacked as favouring religion. A law that removes a religious element from a public programme avoids establishment, and can be attacked as burdening exercise. Most of the American case law lives in that tension.

Application to the states came through the Fourteenth Amendment, adopted after the Civil War, and it came late. The free exercise clause was held to bind the states in Cantwell v. Connecticut in 1940, a case about Jehovah's Witnesses soliciting in New Haven. The establishment clause followed in Everson v. Board of Education in 1947, on bus fares to parochial schools.

Once the clauses reached the states the volume of litigation rose sharply, and the doctrine has been rebuilt more than once.

On establishment, the Court adopted a three part test in 1971 requiring a secular purpose, a primary effect that neither advances nor inhibits religion, and no excessive entanglement. It was applied, criticised, worked around and finally set aside in 2022 in favour of an approach grounded in historical practice and understanding, which is a substantial change of method and its consequences are still working through the lower courts.

On free exercise the swing was as large. In 1963 the Court required a compelling state interest before a general law could burden a religious practice. In 1990, in a case about the sacramental use of peyote, it held that a neutral law of general applicability does not offend the clause even if it burdens a religion. Congress responded in 1993 with the Religious Freedom Restoration Act, restoring the older test against federal action, and the states passed their own versions.

The subject matter is wide because the clauses are short. School prayer, released time, creation science, public funding of religious schools, monuments on courthouse lawns, legislative chaplains, conscientious objection, religious dress in the armed forces, the ministerial exception in employment law and the contraception mandate have all been argued under sixteen words written in 1789.