Freedom of Religion in the United States
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Monument honoring the right to worship, Washington, D.C.

In the United States, freedom of religion is a constitutionally guaranteed right provided in the religion clauses of the First Amendment. Freedom of religion is also closely associated with separation of church and state, a concept which was written of by Thomas Jefferson.^[1]

The modern legal concept of religious freedom as the union of freedom of belief and freedom of worship with the absence of any state-sponsored religion, originated in the United States of America.

Legal foundation

The United States Constitution addresses the issue of religion in two places: in the First Amendment, and the Article VI prohibition on religious tests as a condition for holding public office. The First Amendment prohibits the federal government from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof" This provision was later expanded to state and local governments, through the Incorporation of the Fourteenth Amendment.

The Establishment Clause

The First Amendment "Establishment Clause," stating that "Congress shall make no law respecting an establishment of religion," is generally read to prohibit the Federal government from establishing a national church ("religion") or excessively involving itself in religion, particularly to the benefit of one religion over another. Following the ratification of the Fourteenth Amendment to the United States Constitution and through the doctrine of incorporation, this restriction is held to be applicable to state governments as well.

The Free Exercise Clause

The "Free Exercise Clause" states that Congress can not "prohibit the free exercise" of religious practices.

The Supreme Court has consistently held, however, that even though the First Amendment guarantees the right to free exercise, this right is not absolute. For example, in the 1800s, Some of the members of The Church of Jesus Christ of Latter Day Saints traditionally practiced polygamy, yet in Reynolds v. United States (1879), the Supreme Court upheld the criminal conviction of one of these members under a federal law barring polygamy. The Court reasoned that to do otherwise would set precedent for a full range of religious beliefs including those as extreme as human sacrifice.The Court stated that "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." For example, if you were part of a religion that believed in vampirism, the First Amendment would protect your belief in vampirism, but not the practice. This principle has similarly been applied to those attempting to claim religious exemptions for smoking [cannabis]^{[2]not in citation given}, or, as in the case of Employment Division v. Smith (1990), the use of the hallucinogen peyote. Currently, peyote and ayahuasca are allowed by legal precedent if used in a religious ceremony; though cannabis is not.

Religious tests

The affirmation or denial of specific religious beliefs had, in the past, been made into qualifications for public office; however, the United States Constitution states that the inauguration of a President may include an "affirmation" of the faithful execution of his duties rather than an "oath" to that effect — this provision was included in order to respect the religious prerogatives of the Quakers, a Protestant Christian denomination that declines the swearing of oaths. The U.S. Constitution also provides that "No religious Test shall ever be required as a Qualification of any Office or public Trust under the United States." As of 2007, seven states have language included in their constitutions that requires state office-holders to have particular religious beliefs. These states are Texas, Massachusetts, Maryland, North Carolina, Pennsylvania, and Tennessee.^[3] Some of these beliefs (or oaths) were historically required of jurors and witnesses in court. Even though they are still on the books, these provisions have been rendered unenforceable by U.S. Supreme Court decisions. ^[4]

Religious liberty has not prohibited states or the federal government from prohibiting or regulating certain behaviors; i.e. prostitution, gambling, alcohol and certain drugs, although some libertarians interpret religious freedom to extend to these behaviors. However, the United States Supreme Court has ruled that a right to privacy or a due process right does prevent the government from prohibiting adult access to birth control, pornography, or outlawing early trimester abortions and acts of sodomy.

The "wall of separation"

Thomas Jefferson wrote that the First Amendment erected a "wall of separation between church and state". James Madison, often regarded as the "Father of the Bill of Rights",^[5] also often wrote of the "perfect separation",^[6] "line of separation",^[7] "strongly guarded as is the separation between religion and government in the Constitution of the United States",^[8] and "total separation of the church from the state".^[9] Controversy rages in the United States between those who wish to restrict government involvement with religious institutions and remove religious references from government institutions and property, and those who wish to loosen such prohibitions. Advocates for stronger separation of church and state emphasize the plurality of faiths and non-faiths in the country, and what they see as broad guarantees of the federal Constitution. Their opponents emphasize what they see as the largely Christian heritage and history of the nation (often citing the references to "Nature's God" and the "Creator" of men in the Declaration of Independence). Some more socially conservative Christian sects, such as the Christian Reconstructionist movement, oppose the concept of a "wall of separation" and prefer a closer relationship between church and state.

Problems also arise in U.S. public schools concerning the teaching and display of religious issues. In various counties, school choice and school vouchers have been put forward as solutions to accommodate variety in beliefs and freedom of religion, by allowing individual school boards to choose between a secular, religious or multi-faith vocation, and allowing parents free choice among these schools. Critics of American voucher programs claim that they take funds away from public schools, and that the amount of funds given by vouchers is not enough to help many middle and working class parents.

U.S. judges often ordered alcoholic defendants to attend Alcoholics Anonymous or face imprisonment. However, in 1999, a federal appeals court ruled this unconstitutional because the A.A. program relies on submission to a "Higher Power".

Thomas Jefferson also played a large role in the formation of freedom of religion. He created the Virginia Statute for Religious Freedom, which has since been incorporated into the Virginia State Constitution.

Unalienable rights

The United States of America was established on foundational principles by the Declaration of Independence:^[10]

We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed;

(based on Thomas Jefferson's draft.)

Situation of Mormons 1820-1890

Main article: anti-Mormonism

Historically, the Latter Day Saint movement and Mormonism have been the victim of religious violence beginning with reports by founder Joseph Smith, Jr. immediately after his First Vision 1820^[11] and continuing as the movement grew and migrated from its inception in western New York to Ohio, Missouri, and Illinois. The violence culminated with the death of Joseph Smith, Jr., who was killed by a mob of 200 men in Carthage Jail in 1844. Joseph Smith had surrendered himself previously to the authorities, who failed to protect him. As a result of the violence they were faced with in the East, the Mormon pioneers migrated westwards and eventually founded Salt Lake City, and many other communities along the Mormon Corridor.

With the concept of plural marriage, from 1830 till 1890 the Mormon faith allowed its member to practice polygamy; since 1843 this was limited to polygyny (one man could have several women). The notion of polygamy was not only generally disdained by most of Joseph Smith's contemporaries,^[12] it is also contrary to the traditional Christian understanding of marriage. After 1844 the United States government passed legislation aimed specifically at the Mormon practice of polygamy until the Church of Jesus Christ of Latter-Day Saints officially renounced it and Utah was admitted to the Union. In the case of Reynolds v. United States, the U.S. supreme court clarified that "religious duty" was not a suitable defense to an indictment for polygamy. Basically a law against polygamy does not discriminate against a religion that endorses polygamy.

Smith and his followers experienced relatively low levels of persecution in New York and Ohio, although one incident involved Smith being dragged out of his home in the middle of the night and then tarred and feathered.^[13] They would eventually move on to Missouri, where some of the worst atrocities against Mormons would take place. Smith declared the area around Independence, Missouri to be the site of Zion, inspiring a massive influx of Mormon converts. Locals, alarmed by rumors of the strange, new religion (including rumors of polygamy),^{citation needed} attempted to drive the Mormons out. This resulted in the Mormon War, the Haun's Mill massacre, and the issue of the infamous Extermination Order by Governor Lilburn Boggs,^[14] which ordered all Mormons to leave the state or face extinction. The majority of Mormons would flee to Illinois, where they were received warmly by the village of Commerce, Illinois. The Mormons quickly expanded the town and renamed it Nauvoo, which was one of the largest cities in Illinois at the time.^[15] The economic, political, and religious dominance of the Mormons (Smith was mayor and captain of the local militia) inspired mobs to attack the city, and Smith was arrested for destroying the press of an anti-Mormon newspaper, although he acted with the consent of the city council.^[16] He was imprisoned, along with his brother Hyrum Smith, at Carthage Jail. They were attacked by a mob of about 200 men and killed.

After a succession crisis, most of the Mormons united under Brigham Young, who organized an evacuation from Nauvoo and from the United States itself after the federal government refused to protect the Mormons.^[17] Young and an eventual 50,000-70,000 would cross the Great Plains to settle in the Salt Lake Valley and the surrounding area. After the events of the Mexican-American War, the area became a United States territory. Young immediately petitioned for the addition of the State of Deseret, but the federal government declined, probably^{weasel words} because of the great size of the territory, its low population, and the dominance of the Mormons. Instead, Congress carved out the much smaller territory of Utah. Over the next 46 years, several acts of Congress were directed at Mormons, specifically to curtail the practice of polygamy and to reduce their political power. These acts included the Morrill Anti-Bigamy Act, Poland Act, and Edmunds-Tucker Act. In 1890, Church President Wilford Woodruff issued the Manifesto, ending polygamy.

Supreme Court rulings

Jehovah's Witnesses

Main article: United States Supreme Court cases involving Jehovah's Witnesses

Since the 1940s, the Jehovah's Witnesses have often invoked the First Amendment's freedom of religion clauses to protect their ability to engage in the proselytizing that is central to their faith. This series of litigation has helped to define civil liberties case law in the United States and Canada.

According to Shawn Peters, Jehovah's Witnesses have helped to widen the definition of civil liberties in most western societies, broadening the rights of millions of people as a result of their firm stand and determination.^[18]

In the United States of America and several other countries, the legal struggles of the Jehovah's Witnesses have yielded some of the most important judicial decisions regarding freedom of religion, press and speech. In the United States, many Supreme Court cases involving Jehovah's Witnesses are now landmark decisions of First Amendment law. Of the 72 cases involving the Jehovah's Witnesses that have been brought before the U.S. Supreme Court, the Court has ruled in favor of them 47 times. Even the cases that the Jehovah's Witnesses lost helped the U.S. to more clearly define the limits of First Amendment rights. Former Supreme Court Justice Harlan Stone jokingly suggested "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties." "Like it or not," observed American author and editor Irving Dilliard, "Jehovah's Witnesses have done more to help preserve our freedoms than any other religious group."

Professor C. S. Braden wrote: "They have performed a signal service to democracy by their fight to preserve their civil rights, for in their struggle they have done much to secure those rights for every minority group in America."^[19]

"The cases that the Witnesses were involved in formed the bedrock of 1st Amendment protections for all citizens," said Paul Polidoro, a lawyer who argued the Watchtower Society's case before the Supreme Court in February 2002. "These cases were a good vehicle for the courts to address the protections that were to be accorded free speech, the free press and free exercise of religion. In addition, the cases marked the emergence of individual rights as an issue within the U.S. court system.

Before the Jehovah’s Witnesses brought several dozen cases before the U.S. Supreme Court during the 1930s and 1940s, the Court had handled few cases contesting laws that restricted freedom of speech and freedom of religion. Until then, the First Amendment had only been applied to Congress and the federal government.

However, the cases brought before the Court by the Jehovah's Witnesses allowed the Court to consider a range of issues: mandatory flag salute, sedition, free speech, literature distribution and military draft law. These cases proved to be pivotal moments in the formation of constitutional law. Jehovah’s Witnesses’ court victories have strengthened rights including the protection of religious conduct from federal and state interference, the right to abstain from patriotic rituals and military service and the right to engage in public discourse.

During the World War II era, the U.S. Supreme Court ruled in favor of Jehovah's Witnesses in several landmark cases that helped pave the way for the modern civil rights movement. In all, Jehovah's Witnesses brought 23 separate First Amendment actions before the U.S. Supreme Court between 1938 and 1946.

Significant cases have affirmed rights such as these:

• Right to Refrain from Compulsory Flag Salute
• Conscientious objection to military service
• Preaching in public (proselytizing)

Lemon test

The Supreme Court has consistently held fast to the rule of strict separation of church and state when matters of prayer are involved. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a school principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly impose student-led prayer during high school football games nor establish an official student election process for the purpose of indirectly establishing such prayer. The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish prayer while explicitly or implicitly affirming students' individual freedom to pray.

The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three part test for laws dealing with religious establishment. This determined that a law was constitutional if it:

1. Had a secular purpose
2. Neither advanced or inhibited religion
3. Did not foster an excessive government entanglement with religion.

However, since the 1980s, the Supreme Court has seemed to sidestep the Lemon test altogether.

• In 1981, the Court ruled that a Missouri law prohibiting religious groups from using state university grounds and buildings for religious worship was unconstitutional.^{citation needed} As a result, Congress decided in 1984 that this should apply to secondary and primary schools as well, passing the Equal Access Act, which prevents public schools from discriminating against students based on "religious, political, philosophical or other content of the speech at such meetings". In 1990, the Court upheld this law when it ruled that a school board's refusal to allow a Christian Bible club to meet in a public high school classroom violated the act.^{citation needed}
• In 1993, the Court ruled that religious groups must be allowed to use public schools after hours if the same access is granted to other community groups.^{citation needed}
• In 1995, the Supreme Court found that the University of Virginia was unconstitutionally withholding funds from a religious student magazine.^{citation needed}

State constitutions

A Christian flag displayed alongside the flag of the USA next to the pulpit in a church in California. Note the eagle and cross finials on the flag poles.

Under the doctrine of Incorporation, the first amendment has been made applicable to the states. Therefore the states must guarantee the freedom of religion in the same way the federal government must.

Many states have freedom of religion established in their constitution, though the exact legal consequences of this right vary for historical and cultural reasons. Most states interpret "freedom of religion" as including the freedom of long-established religious communities to remain intact and not be destroyed. By extension, democracies interpret "freedom of religion" as the right of each individual to freely choose to convert from one religion to another, mix religions, or abandon religion altogether.

Workplace

Problems sometimes arise in the workplace concerning religious observance when a private employer discharges an employee for failure to report to work on what the employee considers a Holy day or a day of rest. In the United States, the view that has generally prevailed is that firing for any cause in general renders a former employee ineligible for unemployment compensation, but that this is no longer the case if the 'cause' is religious in nature, especially an employee's unwillingness to work on his or her sabbath.

Religious institutions

In 1944, a joint committee of the Federal Council of Churches of Christ in America and the Foreign Missions Conference of North America, formulated a “Statement on Religious Liberty”

“Religious Liberty shall be interpreted to include freedom to worship according to conscience and to bring up children in the faith of their parents; freedom for the individual to change his religion; freedom to preach, educate, publish and carry on missionary activities; and freedom to organise with others, and to acquire and hold property, for these purposes.”

Freedom of religion restoration

Following increasing government involvement in religious matters, Congress passed the 1993 Religious Freedom Restoration Act.^[20] A number of states then passed corresponding acts (e.g., Missouri passed the Religious Freedom Restoration Act).^[21]

Situation of Native Americans

The situation of Native Americans in the United States has been problematic since the initial European colonization of the Americas. Aside from the general issues in the relations between Europeans and Native Americans, there has been a historic suppression of Native American religions as well as some current charges of religious discrimination against Native Americans by the U.S. government, that need to be considered.

With the practice of the Americanization of Native Americans, Native American children were sent to Christian boarding schools where they were forced to worship as Christians and traditional customs were banned. ^[22]

Until the Freedom of Religion Act 1978, "spiritual leaders [of Native Americans] ran the risk of jail sentences of up to 30 years for simply practicing their rituals."^[23] The traditional indigenous Sun Dance was illegal from the 1880s (Canada) or 1904 (USA) to the 1980s.

Current charges

Current charges of religious discrimination have largely centered on the eagle feather law, the use of ceremonial peyote, and the repatriation of Native American human remains and cultural and religious objects:

• The eagle feather law, which governs the possession and religious use of eagle feathers, was written with the intention to protect then dwindling eagle populations on one hand while still protecting traditional Native American spiritual and religious customs, to which the use of eagle feather is central, on the other hand. As a result, the possession of eagle feathers is restricted to ethnic Native Americans, a policy that is seen as controversial for several reasons.

• Peyote, a spineless cactus found in the desert southwest and Mexico, is commonly used in certain traditions of Native American religion and spirituality, most notably in the Native American Church. Prior to the passage of the American Indian Religious Freedom Act (AIRFA) in 1978, and as amended in 1994, the religious use of peyote was not afforded legal protection. This resulted in the arrest of many Native Americans and non-Native Americans participating in traditional indigenous religion and spirituality. Many individuals today encounter harassment and persecution by their employers for ingesting peyote while participating in the Native American Church because the cactus contains the psychotropic drug mescaline, a controlled substance.

• Native Americans often hold strong personal and spiritual connections to their ancestors and often believe that their remains should rest undisturbed. This has often placed Native Americans at odds with archaeologists who have often dug on Native American burial grounds and other sites considered sacred, often removing artifacts and human remains – an act considered sacrilegious by many Native Americans. For years, Native American communities decried the removal of ancestral human remains and cultural and religious objects, charging that such activities are acts of genocide, religious persecution, and discrimination. Many Native Americans called on the government, museums, and private collectors for the return of remains and sensitive objects for reburial. The Native American Graves Protection and Repatriation Act (NAGPRA), which gained passage in 1990, established a means for Native Americans to request the return or "repatriation" of human remains and other sensitive cultural, religious, and funerary items held by federal agencies and federally assisted museums and institutions.

See also

• ACLU President Strossen on freedom of religion
• Religion in the United States
• Religious affiliations of United States Presidents
• Separation of church and state in the United States
• First Amendment to the United States Constitution
• Establishment Clause of the First Amendment
• Free Exercise Clause of the First Amendment
• Status of religious freedom by country
• United States religious history
• Human rights and the United States
• International Religious Freedom Act of 1998

External links

• "Rights of the People - The Roots of Religious Liberty". U.S. Department of State, International Information Programs. Retrieved on 2007-04-07.
• "Rights of the People - Religious liberty in the Modern era". U.S. Department of State, International Information Programs. Retrieved on 2007-04-07.

References