A phrase that, while not used verbatim in the Bill of Rights, describes one of the clauses of the First Amendment. The actual text is "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Often referred to as the Establishment Clause and Free Exercise Clause.

It implies that religion will not be controlled, mandated, or enforced. Usually interpreted to mean that the government will not have any influence on religion. This interpretation is supported by the Letter to the Danbury Baptists written by Thomas Jefferson.

This would also allow freedom from religion, as it is not free exercise if you are not allowed to not participate.

There is often conflict between what one group thinks of as freedom of religion and what another group thinks, due the complexity of life and society. Common conflicts revolve around prayer at graduation and football games, and how various religions are treated in public institutions such as prisons, schools, and government offices.

Somehow they still find reasons to attempt to pass laws to give more freedom to religion, such as the Religious Liberty Protection Act. If laws are needed to give religion freedom, then someone else passed unconstitutional laws.

Freedom of Religion in the Supreme Court

Over the years, the Supreme Court of the United States has repeatedly exercised its control over freedom of religion and the separation of it from state function (i.e., separation of church and state). The Court has been very strict in enforcing these principals, almost always siding in favor of the stated principles of the Constitution. This has been tested over the years in several high-profile cases.

In 1947 in Everson v. Board of Education, which revolved around whether or not it was legal for a public busing system to ferry schoolchildren to a sectarian school, the Court, for the first time, laid down a genera blanket statement on separation of church and state:

Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against (his or her) will or force (him or her) to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups or vice versa.

This majority decision was written by Justice Hugo Black and has served as the template for separation decisions since then.

In 1962, the Court first came up against the issue of school prayer in Engel v. Vitale, also known as the Regents' Prayer case. The State Board of Regents in New York strongly suggested that a prayer be said aloud in public schools at the start of each day, suggesting a strongly sectarian prayer for use. The suggestion was thrown out because the suggested prayer was so strongly sectarian, thus amounting to state-mandated indoctrination. This principle of the Warren Court was continued in 1963 in Abington School District v. Schempp, where the court outlawed Bible readings and daily recitation of the Lord's Prayer in schools.

In 1968 in Epperson v. Arkansas, the Court clearly extende this separation of church and state to the curriculae of the school system. In this cae, an Arkansas law prohibiting the teaching of evolution in schools was brought under examination. The Court determined that such a law violated separation of church and state because the resulting effect imposed religious beliefs on students. This issue will likely reach the Court again in the near future, with Kansas recently passing a nearly-identical law.

In 1971 in Lemon v. Kurtzman, the Court ruled that direct state aid couldn't be used to subsidize religious instruction. In this, the Court provided a three-pronged test, later called the Lemon test, to apply to issues of funding. The three prongs of the Lemon test are that aid has to be secular in aim, that it could not have the primary effect of andvancing or inhibiting religion, and that the government must avoid an excessive entanglement with religion. Naturally, these tenets are somewhat interpretive, but they serve as a template by which future Court decisions regarding funding issues surrounding freedom of religion have been decided.

Wallace v. Jaffree in 1985 is a very clear example of the Lemon test at work. The case dealt with the constitutionality of an Alabama law which decreed that public schools being each day with a moment of silence. The Court threw out this law because the court could not determine a secular aim for this moment, thus triggering the first branch of the Lemon test.

Edwards v. Aguillard went even further in terms of teaching creationist theory in schools. In 1987, this case resulted in the outlawing of a Louisiana law requiring the teaching of both creation and evolution in schools. The court threw out the law here again, because teaching creationism in schools favors a religion in a state function. This precendence continued in 1992, in Lee v. Weisman, the Supreme Court held that it was unconstitutional for a school to invite a rabbi to deliver a nonsectarian prayer at graduation; the Court again demonstrated that religious viewpoints aren't allowed in schools

1990's Oregon v. Smith is a very controversial one indeed. In it, the Court allowed the state to deny unemployment benefits to two drug counselors who had been fired for using peyote during religious services. The Court argued that religious freedom should not be allowed to interfere in the workplace or to supercede other laws. Many people were outraged at this decision, and Congress responded in 1993 by passing the Religious Freedom Restoration Act, which required federal, state, and local governments to accomodate religious conduct unless the government had a compelling reason not to do so. The Court, sticking to their guns, outlawed this act in 1997 in City of Boerne v. Flores.

In 1995, Rosenberger v. University of Virginia decided that freedom of religious speech is protected more by freedom of speech than freedom of religion, meaning that the state should fund religious speaking. This came after the University of Virginia denied funding to a Christian speakers' group, who were funded by student fees, not general taxation. The dissenting decision was written by Justice David H. Souter, who summarizes the concern behind this decision very well: "The Court today, for the first time, approves direct funding of core religious activities by an arm of the state."

One of the most recent significant freedom of religion decisions came in 1997 with Agostini v. Felton, a revisiting of 1985's Aguilar v. Felton. In the original decision, the Court outlawed the payment of special educational services for students attending religious schools; in 1997, the Court overturned that, stating that special needs education is more important than separation of church and state.

In summary, even though recent years have seen fluctuations between the liberal court of Earl Warren and some of the more conservative Courts of more recent years, the Court has generally defended the freedom of religion and its separation from state function quite rigorously, only making exceptions in the face of special education and freedom of speech.

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