1st Amendment

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The Constitution of the United States of America

 
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The First Amendment

 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.

 
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Note:  The two concepts prior to first semi-colon comprise what is sometimes termed the Constitution's "religious liberty clauses."  In society the two concepts (the no establishment concept, and the free exercise concept) are sometimes at odds and require court interpretation to resolve conflict.
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Source Documents

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Establishment Clause FAQs

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Free Exercise Clause FAQs

Source Documents

The Original Bill of Rights, presented by the National Archives and Records Administration.

A well-documented set of essays on the implications of the First Amendment, found at the Government Publishing Office site.  

Establishment Clause FAQs

Q & A excerpted from pp. 1-5: The Right to Religious Liberty (2nd Ed.)2REF

Q:  What is the purpose of the Establishment Clause?

The purpose of both the Establishment Clause and the Free Exercise Clause Clause is to guarantee religious liberty.  The Establishment Clause seeks to accomplish this by prohibiting Congress from passing laws "respecting an establishment of religion."  Note that the clause forbids more than an establishment of religion.  It forbids even laws respecting an establishment of religion.  Thus a law that does not actually establish religion yet involves or concerns an establishment of religion would appear to violate the clause.

Q: Does the Establishment Clause apply to other branches of the federal government besides Congress?

Yes, the Establishment Clause restricts the legislative, executive, and judicial branches of government.

Q: What about state and local governments?

They, too, are subject to the restriction against laws respecting an establishment of religion.  The Due Process Clause of the Fourteenth Amendment, which provides that no person may be deprived of "life liberty or property without due process of law," has been interpreted as applying the religion clauses to state and local governments.

Q: There is much debate over the meaning of "an establishment of religion."  ... ["separationist" vs. nonseparationist" debate omitted] ... The more likely meaning is that an establishment of religion refers to the endorsement of either a single religion or religion generally.  According to this point of view, government should be neutral in matters of religion, preferring neither one religion over another nor religion over irreligion... Obviously, the framers were aware that in eighteenth-century America "an establishment of religion" included multiple establishments, and any analysis of their intent in drafting the First Amendment must recognize this awareness.  When presented with an amendment allowing the very sort of multiple establishments suggested by nonseparationists, Congress rejected it out of hand.  Indeed, the Senate thrice rejected amendments that would have prohibited the establishment of one religious sect in preference to others while providing for aid to religion in general.  Both houses ultimately agreed upon the much broader prohibition contained in the First Amendment.

The Supreme Court in the 1947 decision Everson v. Board of Education adopted the separationist point of view and, in one of the most famous passages in constitutional law, Justice Hugo Black wrote:

The "establishment of religion" clause of the First Amendment means at least this: 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 to remain away from church against his will or force him 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 non-attendance.  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 and vice versa.  In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."

Free Exercise Clause FAQs

Q & A items excerpted from pp. 67-70: The Right to Religious Liberty (2nd Ed.)2REF

Q: What is the purpose of the Free Exercise Clause

The purpose of both the Establishment Clause and the Free Exercise Clause Clause is to guarantee religious liberty.  The Free Exercise Clause seeks to accomplish this by prohibiting Congress from passing laws prohibiting the free exercise of religion.  The clause protects the rights of individuals and groups insofar as possible to practice their religion free from governmental interference.

Q: Does the Free Exercise Clause apply to other branches of the federal government besides Congress? 

Yes, the Establishment Clause restricts the legislative, executive, and judicial branches of government.

Q: What about state and local governments?

They, too, are subject to the restriction against laws respecting an establishment of religion.  The Due Process Clause of the Fourteenth Amendment, which provides that no person may be deprived of "life liberty or property without due process of law," has been interpreted as applying the religion clauses to state and local governments.

Q: Is the right to practice one's religion absolute?

No.  While the right to hold religious beliefs is absolute, the right to act on those beliefs is not.  The Supreme Court has recognized that the right to practice one's religion must yield to the interests of society in some circumstances.  A parent's right to refuse medical treatment for a sick child, for example, may be subordinate to the state's interest in protecting the health, safety, and welfare of its minor children.  Similarly, polygamy and child labor laws have been upheld in the face of free exercise.

Q: Is a person's right to the free exercise of religion contingent upon his or her membership in a recognized religious group?

No.  The Free Exercise Clause protects the smallest and least popular religious minorities.  Even a minority of one is entitled to the free exercise of religion.

Q: Must a person believe in God in order to be protected by the Free Exercise Clause?

No. ... Courts tend to take a functional, as opposed to creedal, approach to the concept of religion, protecting all beliefs and practices that occupy a place in the life of a claimant parallel to that of religion, including atheism, agnosticism, and secular humanism.  Of course it is clear that no person may be compelled to accept any religion.  In any event, too strict a creedal approach risks the exclusion of some religions and could run afoul of the Establishment Clause prohibition against preferring one religion over another.

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