Freedom of religion (or religious liberty) is a fundamental right enshrined in the Bill of Rights of the US Constitution. Few argue against the freedom of religion in general, but there are many arguments about certain aspects of this freedom.
Religion is baked into the foundations of the United States. For instance, 45% of Americans want America to be a “Christian nation.” However, over half of those individuals also say the federal government should never endorse or declare any official religion.
What is the right to freedom of religion?
In the United States, the right to freedom of religion refers to two things:
- The government is not allowed to declare a state religion. (Establishment Clause)
- Citizens may freely exercise their beliefs in whatever religion they choose. (Free Exercise Clause)
“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.”
This freedom does not remove all mention of God from government property or government-endorsed speech. (We discuss “ceremonial deism” below.) Religious freedom also does not allow someone to exercise their religion insomuch as it infringes on another’s freedoms.
This free exercise of religion establishes the separation of church and state — not necessarily in the First Amendment’s text (the term came from a Thomas Jefferson letter), but certainly in numerous judicial interpretations over the years. The separation of church and state is a controversial philosophy that aims to keep the government out of religion.
Many argue that this separation of church and state goes both ways — that religious groups should not interfere with statecraft. Advocacy groups have even argued that politicians should not allow their religious beliefs to influence policy, legislation, and court decisions. Religious freedom is not a liberty recognized by all systems of government. For instance, communism seeks to eliminate religious expression as a core tenet of its structure.
Before the freedom of religion was ensured to America’s citizens, many of the first European settlers in North America were Puritans or other Christians fleeing religious persecution or serious religious differences. The United States was founded on principles of religious freedom.
Reminder: The Church of England is the state religion of England, and the monarch is that Church’s head. Catholics and Protestants constantly went back and forth, killing and persecuting one another. This endless conflict largely influenced colonial settlers, many of whom wanted a new home where one could exercise religion freely.
Below is how the 13 Colonies treated freedom of religion:
- One of the first colonies, Massachusetts, actually restricted its people to practicing Puritanism in response to religious persecution back in England.
- The first colony to expressly guarantee the freedom of religion was Maryland, although this freedom was repealed to forbid Catholics from practicing their religion. The freedom was reinstated, then later repealed once more by Protestants who wanted to restrict the spread of “Popery.”
- Partly in response to Massachusetts’s theocratic philosophy, the colonies of Rhode Island, Connecticut, New Jersey, and Pennsylvania all guaranteed freedom of religion. A Jewish community was established in Dutch-controlled New York (then called New Amsterdam), and religious freedom continued under English rule. Catholics and Jews often took refuge in these colonies.
After the American Revolution, the First Amendment was ratified on December 15, 1791. This amendment protected several human rights:
- Free speech
- Freedom of assembly
- Freedom of press
- Freedom to petition
- Freedom to exercise religion
This was the first of 10 amendments in the Bill of Rights, which the Founding Fathers added to the US Constitution to ensure citizens’ inalienable rights. The new US states would not ratify the US Constitution until these rights were spelled out in the first 10 amendments to the Constitution.
Advantages to Freedom of Religion
There are many advantages to freedom of religion, but most can be summed up in these two points:
- Less discrimination or persecution. Where there is freedom of religion, the government cannot persecute someone based on their religion or lack of religion. This lack of persecution means fewer people are forbidden from voting or wrongfully killed, as thousands were before the modern era. This advantage is a huge deal since, for most of human history, huge portions of humanity have suffered under religious persecution.
- More personal freedom. Some believe that individual freedom is the highest ethical aim. This is different than a “do-no-harm” ethical framework or an “ends-justify-the-means” framework. Those who subscribe to the framework that personal freedom is the greatest ethical achievement (whether they would put it like that or not) consider religious freedom an ethical imperative for no other reason than it furthers personal freedom.
Downsides to Freedom of Religion
Although few would argue against the general idea of freedom of religion, some critics may argue against certain aspects of this freedom, such as:
- Extension to the private sector. The extent to which freedom of religion extends to the private sector is a hotly debated issue. The US Constitution currently guarantees that the government cannot infringe on individuals’ right to practice whatever religion they please. However, there are gray areas and controversial situations in which private businesses or singular individuals may “discriminate” against someone for how they practice their religion. The downside to this goes both ways. Some may argue freedom of religion should extend more to private businesses, and some may argue the other way.
- Danger to others. If people can practice their religion or lack thereof in any way they choose, this freedom can infringe on other people’s freedom. For example, Christians praying outside an abortion clinic for religious reasons may spark tense debate. A Muslim’s objections to homosexuality could create a hostile work environment. During the onset of COVID-19, some claimed that a Jewish synagogue congregating in the middle of a pandemic put others’ lives in danger.
- Modern times do not need religion. Now that science is so advanced, some argue that there is no longer a need for religion or belief in a higher power. Modern governments do not currently protect the right to sacrifice children, sell sons into slavery, stone adulterers, and torture our enemies just because humans used to be allowed to do all these things. Tradition shouldn’t be followed for its own sake.
Freedom of Religion and Taxation
The US federal government has exempted churches and religious organizations from federal taxation since the passing of the Sixteenth Amendment in 1913.
Critics of this tax exemption (particularly on Twitter) claim that if churches are going to be so involved in politics, the federal government should tax those churches. Moreover, the additional tax income would offset individuals’ tax bills.
For example, the Catholic Church spent $3 million in 2022 to try to influence Kansas voters to ban most abortions. Also, some churches regularly endorse candidates, which is illegal and should cost those churches their tax-free status. (The IRS generally turns a blind eye.)
Here are the reasons that churches should remain largely untaxed:
- Churches are non-profits. Non-religious non-profits are not taxed — philosophically because they are for the public good. Any non-profit could see “income” outpace “expenditures” in any given year, but churches do not have shareholders who benefit from the value raised.
- Not everything associated with churches is tax-exempt. Megachurches selling books and merchandise must pay taxes on those profits and royalties. Pastors pay taxes much like the rest of us, though they benefit from a housing exemption.
- Churches wouldn’t pay that much in taxes. Let’s pretend that contributions to churches were “income.” Let’s also pretend that taxing contributions would not drastically decrease offerings or shut down many churches. Rough estimates indicate that income tax revenue from churches would amount to a rounding error in government expenditures — about 0.05% of the $4 trillion federal budget.
- Church-goers are different from churches. Some may complain that churches are influencing politics when really, it is church-goers who allow their faith to influence their politics. Churches should not be punished for their parishioners, who have the right to believe and vote as they desire — plus, these parishioners are taxed.
Religious Practices in Public Schools
In theory, public school employees should never encourage or discourage the practice of any religion, while students may exercise their faith in any way as long as that exercise does not disrupt school proceedings or infringe on another student’s right to exercise religion.
In practice, more conservative states tend to be more lenient about public school employees engaging in religious activity with students, while more liberal states tend to be stricter.
Students can pray, start religious clubs, and wear religious clothing or jewelry. However, religious clubs must not discriminate against who can become a member. Christian clubs, for instance, cannot forbid a Muslim student from joining.
Teachers may wear faith-based clothing or jewelry, and they can pray privately. However, public schools generally do not allow faith-based teaching and scripture reading in the classroom.
Few argue that private schools shouldn’t engage in religious activity, except to protest private schools receiving government money.
Civil libertarians, non-religious parents, and other groups have tried to restrict teachers’ and administrators’ ability to exercise their religious beliefs while representing a public school. They argue that such exercise is tantamount to the government endorsing one religion over another.
For instance, the phrase “under God” was only added to the pledge of allegiance when Congress revised the pledge in 1954. Several groups and individuals have argued that this added phrase constitutes the government establishing a state religion.
But “ceremonial deism” is often cited to defend the “under God” phrase, as well as “In God We Trust.” Ceremonial deism is a term invented in 1962 and first used by the Supreme Court in 1984. It refers to government invoking a deity as part of a non-religious tradition or ceremony.
The current Supreme Court seems to favor Christians working in government jobs more than previous Courts. In 2022, the Court ruled that a coach at a public high school could silently kneel and pray at a football game but could not lead his team in prayer, overruling stricter precedent from 1971’s Lemon v. Kurtzman.
Work and Religious Liberty
Employees are largely allowed to exercise their particular religion, so long as it doesn’t infringe on others’ right to their own religion. Employers are (almost) always forbidden from discriminating against employees on basis of religion.
Some argue that private businesses should be able to foster a specifically religious or non-religious culture, while others find this discriminatory.
The ACLU (American Civil Liberties Union) reports that 81% of Americans don’t think the law should allow “religious beliefs to decide whether to offer a service to some people and not others. “It’s interesting to note that openly discussing religion at work (and feeling comfortable doing so) correlates to higher worker happiness, which correlates to higher productivity.
Also called Sunday closing laws or Sabbath laws, “blue law” is an unofficial term for laws that prohibit entertainment or commercial activities on religious holidays or Sundays. (No one really knows why they’re called blue laws.)
Blue laws differ from state to state, and usually from county to county. Many of these county or state laws have been democratically repealed over the years, but there are still many other blue laws in effect.
A lot of places in America don’t allow the sale of liquor on Sundays because that is the day of worship for Christians.
Although the three largest religions in America (Christianity, Judaism, Islam) all recognize Sabbath, all three disagree about which day it is. Blue laws almost always favor the Christians’ Sunday as a holy day. Jews and Seventh-Day Adventists have lobbied for Saturday to be recognized as a holy day.
Critics argue that blue laws constitute the government declaring an official religion, plus that they are a burden on the economy. The constitutionality of blue laws has been reaffirmed in several court cases. While recognizing their religious origin, the Court has said that blue laws are beneficial to families, workers, and societal stability. (Labor unions typically support blue laws for non-religious reasons.)
Does the establishment clause apply to state or local governments?
The establishment clause in the US Constitution is interpreted to apply to federal, state, and local governments. The Supreme Court affirmed that this clause applied to the states — not just the federal government — back in the 1940s.
“Congress shall make no law respecting an establishment of religion,” reads the First Amendment. Some claim that the current US Supreme Court is deemphasizing this establishment clause in restricting government action.
Incorporation doctrine is the legal doctrine that claims the Bill of Rights applies to the states, not just the federal government. Initially, states ratified the Bill of Rights, intending it to apply only to the federal government.
Between the Civil War and World War II, the courts gradually applied portions of the Bill of Rights to state and local governments. This was done largely through 1868’s Fourteenth Amendment and 1870’s Fifteenth Amendment — which initially aimed to affirm civil rights for minorities. (Pro-choice and same-sex marriage advocacy groups have used the 14th Amendment as a legal foundation.)
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