July 24, 2020

Religion and the Supreme Court


  • The First Amendment sets a floor – the free exercise clause – and ceiling – the establishment clause – for how the federal government is supposed to treat religion.
  • Supreme Court interpretations of these clauses have changed significantly over time.
  • In the court’s most recent term, it decided several major cases involving religion.

Traditionally, legal cases involving relations between religion and the government have involved the Constitution’s two major religious clauses: the establishment and free exercise clauses of the First Amendment. The Supreme Court’s most recent term, concluded earlier in July, broke new ground in the relationship of the federal government to religion under the free exercise clause.

The Constitutional Ceiling and Floor

Religion and the Supreme Court

The establishment clause set up a maximum level of permissible federal support for religion, while the free exercise clause created a minimum standard of respect the federal government had to accord to religious practice. Scholars have described this system as an establishment clause ceiling and a free exercise floor. Debate has persisted for decades regarding how much space there is between the ceiling and floor for appropriate interaction between government and religion. The court’s interpretation of these clauses and the space between the ceiling and floor has changed significantly over time.

Free Exercise

Arguably the most influential modern free exercise case is Employment Division v. Smith from 1990. Before Smith, the court had held that any generally applicable law that infringed on a plaintiff’s religious beliefs or practices required a “compelling” government interest and the use of the “least restrictive means” of furthering that interest – a level of oversight known in constitutional law as “strict scrutiny.” In Smith, two members of the Native American Church were fired for ingesting peyote as part of religious ceremonies. The state of Oregon denied their unemployment compensation claim because they had been dismissed for “misconduct.”

Justice Antonin Scalia, writing for the majority in Smith, stated that a facially neutral, generally applicable law such as the banning of peyote did not violate the free exercise clause. The opinion argued that free exercise claims against neutral, generally applicable laws merit heightened scrutiny only when combined with another constitutional right. It cited previous cases in which the court had invalidated a tax on solicitation as applied to proselytizers attempting to spread religious ideas.

As Justice Scalia wrote, the difficulty of a more generous interpretation of the free exercise clause is that virtually any governmental action – taxes, compulsory military service, vaccination laws, traffic laws, environmental protection – can be seen as infringing on the free exercise of one of the many religions followed in the United States. Requiring state and federal governments to cite a compelling government interest and prove that every law is the least restrictive way of address that interest, according to Justice Scalia, “would be courting anarchy.”

While Smith continues to be the standard in cases of facially neutral, generally applicable laws, the Supreme Court this past term addressed several free exercise cases not involving such laws. In Espinoza v. Montana Dept. of Revenue, Montana had a state constitutional amendment requiring disparate treatment of religious and nonreligious schools’ access to tax credits. The court held that the amendment violated the free exercise clause’s requirement of equal treatment for religious and nonreligious access to public benefits.

Espinoza is particularly interesting when viewed through the floor-ceiling prism. In 2002, the Supreme Court barely held by a 5-4 vote that an Ohio school voucher program did not violate the establishment clause even if the vouchers were largely used for religious schools – that is, voucher programs do not go above the establishment clause ceiling. In 2020, in another 5-4 vote, the Supreme Court has held that not allowing the vouchers to be used for religious purposes falls below the free exercise floor. For now, vouchers are in the living space between the ceiling and floor, but only by a tenuous vote margin.

In another case this year, Our Lady of Guadalupe School v. Morrissey-Berru, the court held that the free exercise clause precludes the enforcement of employment law against religious schools that fire teachers whose jobs involved leading prayers and teaching a faith-based curriculum. This case fell into a doctrine known as the “ministerial exemption,” under which the free exercise clause forbids the intrusion of government into employment relationships between religious institutions and their key employees.

The Establishment clause

The overarching concept of the establishment clause may seem simple, but difficult cases have forced the Supreme Court to develop confusing tests to determine whether a government policy violates it. Similar cases decided a few years apart end up with contradictory outcomes depending on the composition of the court. In one case from 1962, the court held that mandatory public school prayer violated the establishment clause. However, in 1983 the court upheld the use of a prayer at the beginning of the Nebraska legislative session.

For many years, Supreme Court jurisprudence on the establishment clause revolved around the 1971 case Lemon v. Kurtzman. The court held 8-1 that a Pennsylvania law allowing the state superintendent of schools to reimburse private, mostly Catholic, schools for the salaries of teachers was unconstitutional. The case created the “Lemon test” for determining whether a government action violates the establishment clause. In order to avoid violating the clause:

(1)    The statute must have a secular legislative purpose;

(2)   The primary effect of the statute must neither advance nor inhibit religion; and

(3)   The statute must not result in excessive government entanglement with religion.

The vagueness of these three requirements led to inconsistent use of the test and varying results in seemingly similar cases. For example, in 1980, the court found that a display of the Ten Commandments in classrooms violated the establishment clause. In 2005, the court held that a Ten Commandments display at a state capital was acceptable, but in another case it found a display at a courthouse violated the clause.

Another area of confusion was public nativity scenes around Christmas. In 1984, the court found that a nativity scene – or creche – as part of a larger display that included Santa, reindeer, and other secular Christmas paraphernalia did not violate the clause. Five years later, the court found that a display combining a nativity scene and menorah did, but only the nativity scene part of the display, not the menorah part.

Does Supreme Court Case Law Allow…

Religion and the Supreme Court

Justice Scalia criticized the vagueness of the Lemon test in a 1993 opinion:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our establishment clause jurisprudence once again. ... When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. ... For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange establishment clause geometry of crooked lines and wavering shapes its intermittent use has produced.

The most recent major establishment clause case came in 2019, when the court held by a vote of 7-2 that a 32-foot tall Latin cross commemorating soldiers killed in World War I did not violate the clause. While seven justices agreed on the outcome, there was wide disagreement over the precise rationale. Justice Samuel Alito delivered the opinion of the court, but six other justices wrote their own opinions, including five concurrences and a dissent. Justice Alito’s opinion criticized the Lemon test, but that portion of the opinion was not joined by a majority of justices.

Religious Freedom Restoration Act

The 1990 Smith case provoked criticism across the political spectrum, from the American Civil Liberties Union to the Christian Legal Society. That criticism led to passage of the Religious Freedom Restoration Act in 1993 by wide margins: a unanimous vote in the House and only three nay votes in the Senate. Representative Chuck Schumer introduced the House version of the bill, and Senator Ted Kennedy introduced the Senate companion bill. RFRA reinstated the old free exercise clause standard requiring strict scrutiny of laws allegedly imposing a burden on religious exercise.

As our governmental system is generally understood, however, Supreme Court decisions on constitutional law cannot be overturned by statute because the Constitution cannot be amended by statute. Furthermore, Congress could not use its enforcement power under the Fourteenth Amendment to impose protections against state laws that are not unconstitutional. For those reasons, the Supreme Court found RFRA to be unconstitutional as applied to the states in 1997. However, it ruled that Congress could pass a statute that provided greater protections than the free exercise clause if its effects were limited to the federal government. RFRA continues to be in effect as applied to the federal government. The Supreme Court confirmed this conclusion in a 2006 case.

In 2014, the Supreme Court ruled in Burwell v. Hobby Lobby that closely held, for-profit corporations could object to regulations through RFRA. In that case, the regulation was the Affordable Care Act’s contraceptive mandate. Citing the outcome in Hobby Lobby, several federal departments issued regulations allowing moral exemptions from the contraceptive mandate for employers. The court held this month in Little Sisters of the Poor v. Pennsylvania that those exemptions were consistent with the ACA and were not procedurally defective, allowing them to go into effect. 


·         The First Amendment sets a floor the free exercise clause and ceiling the establishment clause for how the federal government is supposed to treat religion.

·         Supreme Court interpretations of these clauses have changed significantly over time.

·         In the court’s most recent term, it decided several major cases involving religion.

Issue Tag: Judiciary