Freedom of religion in the United States
In the United States, freedom of religion is a constitutionally protected right provided in the religion clauses of the First Amendment.[1] As stated in the Bill of Rights: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...". Freedom of religion is linked to the countervailing principle of separation of church and state, a concept advocated by Colonial founders such as Dr. John Clarke, Roger Williams, William Penn, and later Founding Fathers such as James Madison and Thomas Jefferson.[2][3]
The way freedom of religion is interpreted has changed over time in the United States and continues to be controversial. The issue was a major topic of George Washington's Farewell Address. Several American states had their own official state churches both before and after the First Amendment was passed.[4] Illegal religion was a major cause of the 1890–1891 Ghost Dance War. Starting in 1918, nearly all of the pacifist Hutterites emigrated to Canada when Joseph and Michael Hofer died following torture for conscientious objection to the draft. Some have since returned, but most Hutterites remain in Canada.
The long-term trend has been towards increasing secularization of the government. The remaining state churches were disestablished in 1820 and teacher-led public school prayer was abolished in 1962, but the military chaplaincy remains to the present day. Although most Supreme Court rulings have been accommodationist towards religion, in recent years there have been attempts to replace the freedom of religion with the more limited freedom of worship. Although the freedom of religion includes some form of recognition to the individual conscience of each citizen with the possibility of conscientious objection to law or policy, the freedom of worship does not.
Controversies surrounding the freedom of religion in the US have included building places of worship, compulsory speech, prohibited counseling, compulsory consumerism, workplace, marriage and the family, the choosing of religious leaders, circumcision of male infants, dress, education, oaths, praying for sick people, medical care, worshiping during quarantines, use of government lands sacred to Native Americans, the protection of graves, the bodily use of sacred substances, mass incarceration of clergy, both animal slaughter for meat and the use of living animals, and accommodations for employees, prisoners, and military personnel.
Supreme Court rulings[edit]
Jehovah's Witnesses[edit]
Since the 1940s, the Jehovah's Witnesses have often invoked the First Amendment's freedom of religion clauses to protect their ability to engage in the proselytizing (or preaching) that is central to their faith. This series of litigation has helped to define civil liberties case law in the United States and Canada.
In the United States of America and several other countries, the legal struggles of the Jehovah's Witnesses have yielded some of the most important judicial decisions regarding freedom of religion, press and speech. In the United States, many Supreme Court cases involving Jehovah's Witnesses are now landmark decisions of First Amendment law. Of the 72 cases involving the Jehovah's Witnesses that have been brought before the U.S. Supreme Court, the Court has ruled in favor of them 47 times. Even the cases that the Jehovah's Witnesses lost helped the U.S. to more clearly define the limits of First Amendment rights. Former Supreme Court Justice Harlan Stone jokingly suggested "The Jehovah's Witnesses ought to have an endowment in view of the aid which they give in solving the legal problems of civil liberties." "Like it or not," observed American author and editor Irving Dilliard, "Jehovah's Witnesses have done more to help preserve our freedoms than any other religious group."
Professor C. S. Braden wrote: "They have performed a signal service to democracy by their fight to preserve their civil rights, for in their struggle they have done much to secure those rights for every minority group in America."[38]
"The cases that the Witnesses were involved in formed the bedrock of 1st Amendment protections for all citizens," said Paul Polidoro, a lawyer who argued the Watchtower Society's case before the Supreme Court in February 2002. "These cases were a good vehicle for the courts to address the protections that were to be accorded free speech, the free press and free exercise of religion. In addition, the cases marked the emergence of individual rights as an issue within the U.S. court system.
Before the Jehovah's Witnesses brought several dozen cases before the U.S. Supreme Court during the 1930s and 1940s, the Court had handled few cases contesting laws that restricted freedom of speech and freedom of religion. Until then, the First Amendment had only been applied to Congress and the federal government.
However, the cases brought before the Court by the Jehovah's Witnesses allowed the Court to consider a range of issues: mandatory flag salute, sedition, free speech, literature distribution and military draft law. These cases proved to be pivotal moments in the formation of constitutional law. Jehovah's Witnesses' court victories have strengthened rights including the protection of religious conduct from federal and state interference, the right to abstain from patriotic rituals and military service and the right to engage in public discourse.
During the World War II era, the U.S. Supreme Court ruled in favor of Jehovah's Witnesses in several landmark cases that helped pave the way for the modern civil rights movement. In all, Jehovah's Witnesses brought 23 separate First Amendment actions before the U.S. Supreme Court between 1938 and 1946.
Lemon test[edit]
For sixty years, the Supreme Court consistently held fast to the rule of strict separation of church and state when matters of prayer are involved. In Engel v. Vitale (1962) the Court ruled that government-imposed nondenominational prayer in public school was unconstitutional. In Lee v. Weisman (1992), the Court ruled prayer established by a school principal at a middle school graduation was also unconstitutional, and in Santa Fe Independent School Dist. v. Doe (2000) it ruled that school officials may not directly impose student-led prayer during high school football games nor establish an official student election process for the purpose of indirectly establishing such prayer. The distinction between force of government and individual liberty is the cornerstone of such cases. Each case restricts acts by government designed to establish prayer while explicitly or implicitly affirming students' individual freedom to pray.
The Court has therefore tried to determine a way to deal with church/state questions. In Lemon v. Kurtzman (1971), the Court created a three-part test for laws dealing with religious establishment. This determined that a law was constitutional if it:
Replacement of freedom of religion with freedom of worship[edit]
In 2016, John Miller of the Wall Street Journal noted that the term "freedom of religion" was recently restored to US immigrant naturalization tests and study booklets. It had previously been changed to the more limited "freedom of worship."[116]
In 2014, Kamala Harris and others signed a brief submitted to the Supreme Court that "Rights to the free exercise of religious beliefs [...] protect the development and expression of an 'inner sanctum' of personal religious faith. Free exercise rights have thus also been understood as personal, relating only to individual believers and to a limited class of associations comprising or representing them."[117]