Amendment 1 — Relationship Between The Establishment And Free Exercise Clauses

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First Amendment :

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment ’s Religion Clauses prohibit the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” [1](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn1amd1 " U.S. Const. amend. I (emphasis added). The Religion Clauses apply to Congress in the text of the provision, and to the states by incorporation through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262 (1934) (incorporating the Free Exercise Clause); see also . ") Together, the Free Exercise and Establishment Clauses guarantee religious freedom,[2](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn2amd1 " E.g., Reynolds v. United States, 98 U.S. 145, 162 (1878). ") deeming “religious beliefs and religious expression . . . too precious to be either proscribed or prescribed by the State.” [3](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn3amd1 " Lee v. Weisman, 505 U.S. 577, 589 (1992). ")

In many ways, the two provisions work together to ensure government neutrality towards religion: the Establishment Clause prohibits “a fusion of governmental and religious functions” or official governmental support for “the tenets of one or of all orthodoxies,” while the Free Exercise Clause protects “the right of every person to freely choose his own course” of religious observance “free of any compulsion from the state.” [4](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn4amd1 " Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963). See also, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 182 (2012) ( “Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” ); . ") The two clauses, however, operate in distinct ways, and “forbid two quite different kinds of governmental encroachment upon religious freedom.” [5](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn5amd1 " Engel v. Vitale, 370 U.S. 421, 430 (1962). ") The Free Exercise Clause is concerned with “governmental compulsion,” while the Establishment Clause is “violated by . . . laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.” [6](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn6amd1 " Id. ") Viewed another way, the Free Exercise Clause protects the individual’s religious beliefs, while the Establishment Clause is additionally concerned with institutional “tendencies to political tyranny and subversion of civil authority.” [7](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn7amd1 " McGowan v. Maryland, 366 U.S. 420, 430 (1961). See also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) ( “The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.” (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 713 (1871))). ")

The Supreme Court has long recognized a “tension” between the Religion Clauses.[8](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn8amd1 " E.g., Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973); Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality opinion). See also . Cf. Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 20 (U.S. June 27, 2022) (questioning an interpretation that would create tension between the Establishment, Free Exercise, and Free Speech Clauses, saying they should instead be viewed as having complementary purposes). ") For example, in 1947’s Everson v. Board of Education, the Court rejected an Establishment Clause challenge to a state program that paid the bus fares of schoolchildren, including those who attended religious schools.[9](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn9amd1 " Everson, 330 U.S. at 17. ") While acknowledging that the Establishment Clause prevented the state from giving “tax-raised funds to the support of an institution which teaches the tenets and faith of any church,” the Court also cautioned that neither could the state exclude citizens, “because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” [10](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn10amd1 " Id. at 16. ") The Court said it had to be “careful” that, in service of protecting “against state-established churches,” it would not “inadvertently prohibit [the state] from extending . . . general . . . benefits to all its citizens without regard to their religious belief.” [11](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn11amd1 " Id. ") In the words of the Court: “State power is no more to be used so as to handicap religions than it is to favor them.” [12](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn12amd1 " Id. at 18. ") Accordingly, in some decisions, the Court has cautioned that the government “may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’” [13](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn13amd1 " Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). In Schempp, however, the Court invalidated mandatory Bible readings in schools despite this caution against hostility to religion, holding these religious exercises instead violated the Establishment Clause’s requirement of “strict neutrality.” Id. ")

The Court has recognized “room for play in the joints” between the proscriptions of “governmentally established religion” and “governmental interference with religion,” pursuing “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” [14](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn14amd1 " Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970). ") Accordingly, the Court has recognized, as in Everson, that the government may sometimes accommodate or indirectly support religious entities or activities without violating the Establishment Clause, even when those accommodations are not required by the Free Exercise Clause.[15](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn15amd1 " See, e.g., id. at 671–72 (describing prior cases and holding that a property tax exemption that included religious properties used solely for religious purposes did not violate the Establishment Clause). See also, e.g., Cutter v. Wilkinson, 544 U.S. 709, 714 (2005) (holding that federal statute protecting prisoners’ religious exercise did not “exceed the limits of permissible government accommodation of religious practices” ); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (holding that exempting religious organizations’ secular activities from federal law prohibiting employment discrimination was a permissible accommodation consistent with the Establishment Clause); Wisconsin v. Yoder, 406 U.S. 205, 234 n.22 (1972) (holding that exempting the Amish from the state’s compulsory education system was a permissible accommodation consistent with the Establishment Clause); Selective Draft Law Cases, 245 U.S. 366, 389–90 (1918) (saying the “unsoundness” of Free Exercise and Establishment Clause challenges to an exemption from the draft for conscientious objectors was “apparent” ). ") A permissible accommodation will generally relieve a burden on religious exercise, such as by exempting religious practices from a general regulation.[16](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn16amd1 " See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 613 n.59 (1989); Amos, 483 U.S. at 338; Yoder, 406 U.S. at 234 n.22. See also, e.g., Cutter, 544 U.S. at 720 ( “Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise.” ); id. (noting that the Act must “be administered neutrally among different faiths” and that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” ). ") Attempts at accommodation may go too far and violate the Establishment Clause, however, if they merely aid religious exercise rather than relieving a burden.[17](https://www.law.cornell.edu/constitution-conan/amendment-1/relationship-between-the-establishment-and-free-exercise-clauses#fn17amd1 " See Cnty. of Allegheny, 492 U.S. at 613 n.59 (explaining that a county’s crèche display was not a permissible accommodation, because prohibiting the display in a county building would “not impose a burden on the practice of Christianity (except to the extent that some Christian sect seeks to be an officially approved religion)” ); see also, e.g., Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (plurality opinion) (ruling that a state tax exemption for re