Analysis of Free Exercise Clause and Establishment Clause

The First Amendment to the United States Constitution is perhaps one of the most misunderstood provisions in the US Constitution.  It states that “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.”

Most people think that the principle behind the First Amendment is a modern invention of man which started only in the 18^th Century and that Thomas Jefferson is “the primary architect of the American tradition of separation of church and state.

” (Thomas Jefferson and the Separation of Church and the State” 1)

It must however be stressed that the principles behind the First Amendment originated during the time of Jesus Christ.  The New Testament says “render to Caesar the things that are Caesar's and to God the things that are God's."  At present, the First Amendment is based on the principle of respect between the two powerful institutions.

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  The separation is not one of hostility but an understanding that their union will only lead to the destruction of the state and the degrading of the church.

The First Amendment embodies two rights which are known as the Free Exercise Clause and the Establishment Clause.  While both these clauses prohibit government intervention in matters of religion, tensions are inevitable between the requirement of neutrality under the Establishment Clause and the government accommodation of certain religious practices by virtue of the Free Exercise Clause.

To explain further, issues arise as the government allows certain religious sects from practicing their own religion which can be considered as a violation of neutrality on the part of the government on religious matters under the Establishment Clause.  There have been a number of cases that discuss about the First Amendment, the Free Exercise Clause and the Establishment.  This essay seeks to briefly summarize and discuss these concepts utilizing existing cases for the purpose of clarifying topics in which there are gray areas.

Free Exercise Clause

The Free Exercise clause renders unconstitutional any act of the government that prohibits a particular religion (Thomas E. Patterson, 2007, p.127).  It seeks to safeguard religious rights and secure religious liberty to the individual by prohibiting any invasions to these rights by the government.  The concepts of religious freedom, religious liberty and religious rights all come under the protection of the Free Exercise Clause.

Under the Free Exercise Clause, the government may not punish or discriminate against an individual or group of individuals simply because they espouse religious beliefs or require any persons to adhere to a particular religious belief.  The Free Exercise Clause is in fact intimately connected with Freedom of Expression, such as Freedom of Speech, press, assembly, and petition, that it cannot be separated therefrom (Thomas E. Patterson, 2007, p.124).

Distinction however must be made between espousing or adhering to religious beliefs and engaging in religious conduct and practices.  The Supreme Court has declared that the Free Exercise Clause only protects religious beliefs.  While protection of religious beliefs is absolute, the protection does not extend to religious practices and conduct that run counter to the neutrally enforced criminal laws.

This was the doctrine enunciated by the Supreme Court in the case of Reynolds v. US (98 US 145) which involved a member of The Church of Jesus Christ of Latter-day Saints who was put to trial for charges of bigamy.  George Reynolds, the defendant, argued that he should not be charged for bigamy as he was merely obeying his religious duty to marry multiple times.  The Supreme Court declared that religious duty was not a suitable defense to bigamy, to wit: “But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far.”  (Reynolds v. US, 98 US 145)