The Supreme Court and lower federal courts continue to struggle to develop cohesive principles to clarify the free exercise and establishment clauses’ meanings. In fact, the courts have avoided creating categorical rules and, instead, take case-by-case approaches to deciding freedom of religion cases.
In this module, we will examine recent cases involving the free exercise and establishment clauses, in which the courts have clarified the meanings of both clauses as applied to specific contexts.
Crrent legal disputes regarding the establishment clause typically involve whether: (1) the government may construct monuments or engage in other expressive activity that includes religious symbols or messages; (2) government officials may begin legislative or administrative proceedings with a prayer; (3) public schools may incorporate religious lessons into the curriculum for purely secular purposes; and (4) executive orders that disparately affect immigrants of a particular religious faith are permissible.
Religious Messages or Symbols
As a general rule, monuments or other expressive activities will not violate the establishment clause if they simply reflect the United States’ history and traditions. Also, such activities will be more likely to survive constitutional scrutiny if the government permits the construction of secular monuments or other expressive activities at the site where the religious monument is located.
In Mayle v. United States, for example, a non-theistic Satanist argued that inscribing the words “In God We Trust” on United States currency violates the establishment clause.
The United States Court of Appeals for the Seventh Circuit rejected this argument. The court held that the phrase “In God We Trust” did not endorse a particular religion or religion generally, did not coerce individuals into accepting religious beliefs, and did not further a prohibited religious purpose. Instead, the phrase merely reflected the United States’ heritage and traditions. In support of its holding, the Seventh Circuit stated:
The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation’s religious heritage. Examples include the phrase ‘one nation under God,’ which has been in the Pledge of Allegiance since 1954, as well as the National Day of Prayer, which has existed in various forms since the dawn of the country and is now codified. Moreover, when the religious aspects of an activity account for ‘only a fraction,’ the possibility that anyone could see it as an endorsement of religion is diluted. In the case of currency, the motto is one of many historical reminders; others include portraits of presidents, state symbols, monuments, notable events such as the Louisiana Purchase, and the national bird. 
For these reasons, a reasonable observer would not perceive the phrase “In God We Trust” as endorsing a specific religion or religion generally.
In Felix v. Bloomfield, however, the Tenth Circuit Court of Appeals examined whether a town’s construction of a Ten Commandments monument on the City Hall Lawn violated the establishment clause. Applying the endorsement test, which is typically used when expressive activity is involved, the Tenth Circuit held that the monument violated the clause.
The Tenth Circuit emphasized that the placement of the monument in a prominent location, coupled with the religious circumstances associated with its funding and unveiling, would lead a reasonable observer to believe that the town was endorsing a particular religion. The Tenth Circuit also held that the town’s subsequent inclusion of secular monuments at City Hall was not sufficient to detract from the plainly religious character of the Ten Commandments monument.
Prayers and Religious Instruction
As a general rule, prayers at legislative or administrative proceedings are constitutional if they merely reflect the United States’ tradition of acknowledging a higher power and do not coerce participation.
In Town of Greece v. Galloway, for example, the Supreme Court considered whether a township’s decision to allow a volunteer chaplain to open each legislative session with a prayer violated the establishment clause.
In a 5-4 decision, the Court held that the policy did not violate the establishment clause. Writing for the majority, Justice Anthony Kennedy held that the township did not “violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” The Court also emphasized that the policy did not discriminate against minority or alternative faiths when deciding who may lead the prayer, that it did not coerce participation and that it was consistent with the longstanding practices of Congress and state legislatures. The Court observed, “absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation.”
In Bormuth v. County of Jackson, however, the Sixth Circuit Court of Appeals held that the use of a religious invocation at county commission meetings violated the establishment clause. The Sixth Circuit distinguished Bormuth from Township of Greece by pointing out that the county commissioners themselves delivered the invocation in a setting where constituents were present and excluded other prayer providers to control the content of the invocation. Furthermore, before the invocation, the county commissioner directed the audience to “rise” and “assume a reverent position,” which suggested that the invocation required the audience members’ participation. For these reasons, the invocation was distinguishable from the opening prayer at issue in Township of Greece and violated the establishment clause.
The courts have held that a public school may include religious lessons or content in its curriculum if there is a secular purpose for doing so, such as to provide a broader historical perspective or for other educational purposes, such as to compare different religions.
For example, in Wood v. Arnold, the Fourth Circuit Court of Appeals considered whether a public high school’s inclusion of lessons on Islam in a history course violated the establishment clause. The Fourth Circuit held that the lessons, which included the statement that “most Muslims’ faith is stronger than the average Christian,” did not violate the establishment clause. Applying the revised Lemon test, the Fourth Circuit explained that the lessons had a secular purpose, which was to compare different religions, that they merely “identified the views of a particular religion” without advancing or inhibiting religion, and did not entangle the government in religion.
Executive Orders Impacting a Particular Faith
Generally, the President of the United States has broad power to regulate and restrict entry into the United States. This includes placing restrictions on immigrants of a particular religious faith if there exists a valid secular purpose, such as national security, to justify the restriction.
In Trump v. Hawaii, the Supreme Court confronted the issue of whether President Donald Trump’s executive order, which temporarily restricted the entry from seven designated predominantly Muslim countries into the United States, violated the establishment clause. Before reaching the Supreme Court, several lower courts, including the Ninth Circuit Court of Appeals, held that the order, which was known in common parlance as a “travel ban,” violated the establishment clause. These courts explained that the “travel ban” impermissibly targeted individuals of a particular religious belief system (Islam) and therefore violated the establishment clause.
In a 5-4 decision, the Supreme Court reversed the Ninth Circuit’s decision. The Court based its decision on the fact that the Immigration and Nationality Act granted the President broad power to restrict the entry of non-citizens into the country. Although the Court’s decision did not directly address whether President Trump’s order violated the establishment clause, its opinion contained language strongly suggesting that a majority of the justices would allow the order.
Writing for the majority, Chief Justice Roberts stated that, although most of the countries affected by the order were comprised of Muslim majorities, this fact alone did not “support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” For this reason, Justice Roberts held that President Trump had provided a “sufficient national security justification” to support the order’s constitutionality.
Ultimately, several principles emerge from these cases that clarify the establishment clause’s meaning:
- The courts adhere to the principle that the government must maintain neutrality toward religion;
- The courts use the “endorsement” test to assess the constitutionality of laws or actions involving expressive conduct, such as the construction of monuments or the inclusion of prayer at town hall meetings;
- The courts rely on the revised version of theLemon test to assess the constitutionality of laws that involve government aid or funding to religious and non-religious groups; and
- The validity of a law or governmental action ultimately depends on the facts of a particular case.
Exemptions from Generally Applicable Laws
Legal disputes regarding the free exercise clause typically involve whether: (1) corporations and religious institutions may claim exemptions from generally applicable laws that violate their religious beliefs; and (2) the government may deny funds or grants to religious institutions while simultaneously making those funds available to secular institutions.
The courts have not conclusively resolved the issue of whether individuals may claim exemptions from generally applicable laws that neither target nor discriminate against a particular religion. As a general rule, under Religious Freedom Restoration Act, an individual or institution may claim an exemption from a federal law if it “substantially burdens” religious beliefs, or if alternative means exist by which the government can achieve its objective without burdening religion. Additionally, twenty-one states have adopted laws that similarly provide exemptions from laws that “substantially burden” an individual or institution’s religious beliefs. Under these laws, courts apply the “strict scrutiny” standard to assess the constitutional validity of laws allegedly infringing on religious beliefs. If the state can demonstrate that the law in question furthers a compelling governmental interest and is narrowly tailored to achieve that interest- which means that the law is the least restrictive means by which to achieve that interest- then individuals and institutions are not entitled to exemption from compliance with the law.
Determining whether a law “substantially burdens” religious beliefs, or whether it survives strict scrutiny, is a difficult question. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, for example, the Supreme Court addressed whether the owners of a store that provided services to the public could refuse service to some consumers if doing so would violate their religious beliefs.
In a narrow opinion, the Court did not directly address whether the free exercise clause permitted the store owners to refuse service to a same-sex couple. Instead, the Court held that the Colorado Civil Rights Commission’s ruling finding the violation reflected hostility toward religion and thus failed to maintain the religious neutrality required of government institutions. In support of this conclusion, the Court noted that the Commission had compared the store owners’ religious beliefs to a defense of slavery and the Holocaust, which was “inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s anti-discrimination law.” Consequently, although the Court stated that the store owners “might have a right to the free exercise of religion limited by generally applicable laws,” it did not reach this issue because the Commission’s conduct was sufficient to establish a violation of the free exercise clause.
In Burwell v. Hobby Lobby Stores and Zubik v. Burwell, the Supreme Court confronted the issue of whether closely-held corporations and religious institutions, respectively, were exempt from the Affordable Care Act’s requirement that an employer’s insurance policy for employees provide coverage for contraceptive use. The corporation and institution both argued that this requirement violated their religious beliefs.
In Burwell, the Court issued a narrow decision holding that the contraception mandate was unconstitutional as applied to the closely-held corporation because the government could employ lesser restrictive means to ensure access to contraceptive care without burdening the corporation’s religious beliefs.
In Zubick, the Court did not issue a decision on the merits because, while the case was pending, the religious institution (Little Sisters of the Poor) stipulated that their religious liberty would not be infringed if they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception.” Accordingly, the Court remanded the case to the lower court with the expectation that the parties to would likely agree on a settlement consistent with this stipulation.
Consequently, the law in this area remains unsettled.
Denying Public Funds to Religious Institutions
The Supreme Court has repeatedly held that the government must make public funds available to religious and secular institutions on an equal basis. As such, the government may not deny public funds to institutions solely because of their religious affiliation.
In Trinity Lutheran Church of Columbia, Mo. v. Comer, the Supreme Court considered whether a state-sponsored program that provided grants to public schools but denied the same grants to similarly-situated religious schools violated the free exercise clause. Under the program, the state denied public funds to a religious school to complete a playground resurfacing but provided such funds to public schools for other purposes.
In a 7-2 decision, the Court invalidated the program. The Court emphasized that the program intentionally denied a public benefit to otherwise-eligible recipients solely on the basis of their status as a religious institution. Accordingly, the program “involved express discrimination based on religious identity,” which is “odious to the Constitution,” and to the basic principles underlying the free exercise clause.
Ultimately, the Court’s recent jurisprudence regarding the free exercise clause establishes three specific principles that guide the assessment of the constitutionality of laws or actions allegedly infringing on the free exercise clause:
- Laws that target or reflect hostility toward a particular religion or religious practice generally violate the free exercise clause;
- Laws that discriminate against religious institutions, such as by refusing to provide public funds to religious schools while simultaneously funding secular schools, violate the free exercise clause; and
- Laws that infringe on religious liberty will be invalidated if there is an alternative, lesser restrictive means by which to accomplish the government’s goal, even if that goal is compelling.
 Maylev. United States, 891 F.3d 680 (7th Cir. 2018).
 Id. supra (internal citation omitted).
 Felixv. City of Bloomfield, 841 F.3d 848 (10th Cir. 2016).
 Townof Greece v. Galloway, 572 U.S. 565 (2014).
 Id. (emphasis added).
 Bormuth v. Cty. of Jackson, 870 F.3d 494 (6th Cir. 2017).
 Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019).
 See Trump v. Hawaii, 138 S. Ct. 2392 (2018).
 Id. supra.
 MasterpieceCakeshop Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).
 Burwellv. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014); Zubik v. Burwell, 136 S. Ct. 1557 (2016).
 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).