Relationship Between the Establishment and Free Exercise Clauses

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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.

The First Amendment’s Religion Clauses prohibit the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” 1 Together, the Free Exercise and Establishment Clauses guarantee religious freedom,2 deeming “religious beliefs and religious expression . . . too precious to be either proscribed or prescribed by the State.” 3

In many ways, the two provisions work together to ensure government neutrality towards religion: the Establishment Clause prohibits “a fusion of governmental and religious functions” or official governmental support for “the tenets of one or of all orthodoxies,” while the Free Exercise Clause protects “the right of every person to freely choose his own course” of religious observance “free of any compulsion from the state.” 4 The two clauses, however, operate in distinct ways, and “forbid two quite different kinds of governmental encroachment upon religious freedom.” 5 The Free Exercise Clause is concerned with “governmental compulsion,” while the Establishment Clause is “violated by . . . laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.” 6 Viewed another way, the Free Exercise Clause protects the individual’s religious beliefs, while the Establishment Clause is additionally concerned with institutional “tendencies to political tyranny and subversion of civil authority.” 7

The Supreme Court has long recognized a “tension” between the Religion Clauses.8 For example, in 1947’s Everson v. Board of Education, the Court rejected an Establishment Clause challenge to a state program that paid the bus fares of schoolchildren, including those who attended religious schools.9 While acknowledging that the Establishment Clause prevented the state from giving “tax-raised funds to the support of an institution which teaches the tenets and faith of any church,” the Court also cautioned that neither could the state exclude citizens, “because of their faith, or lack of it, from receiving the benefits of public welfare legislation.” 10 The Court said it had to be “careful” that, in service of protecting “against state-established churches,” it would not “inadvertently prohibit [the state] from extending . . . general . . . benefits to all its citizens without regard to their religious belief.” 11 In the words of the Court: “State power is no more to be used so as to handicap religions than it is to favor them.” 12 Accordingly, in some decisions, the Court has cautioned that the government “may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’” 13

The Court has recognized “room for play in the joints” between the proscriptions of “governmentally established religion” and “governmental interference with religion,” pursuing “a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” 14 Accordingly, the Court has recognized, as in Everson, that the government may sometimes accommodate or indirectly support religious entities or activities without violating the Establishment Clause, even when those accommodations are not required by the Free Exercise Clause.15 A permissible accommodation will generally relieve a burden on religious exercise, such as by exempting religious practices from a general regulation.16 Attempts at accommodation may go too far and violate the Establishment Clause, however, if they merely aid religious exercise rather than relieving a burden.17 For instance, in one case, the Court concluded that a state had violated the Establishment Clause by intentionally giving a specific religious group “exclusive control” of a school district.18 This “proposed accommodation single[d] out a particular religious sect for special treatment,” and the Court clarified that “permissible legislative accommodations” must honor “neutrality as among religions.” 19 Notwithstanding this case’s concern about preferential treatment, the Supreme Court has seemed to move more towards an accommodationist view of the Establishment Clause in recent decades.20

Conversely, turning to the second aspect of the “play in the joints” described above,21 the government may sometimes limit its support for religion without violating the Free Exercise Clause, even when those restrictions are not required by the Establishment Clause.22 Stated another way, the government may sometimes take “antiestablishment” positions, such as declining to provide support to certain religious activities, without violating the Free Exercise Clause.23 In Locke v. Davey, the Court held that a state did not violate the Free Exercise Clause by prohibiting students from using publicly funded scholarships to pursue devotional theology degrees.24 Although providing such scholarships would not violate the Establishment Clause,25 the Court nonetheless concluded that the state could take a “more stringent” approach to “antiestablishment” than the U.S. Constitution and choose not to fund these specific religious activities.26 The Court characterized the state’s interest in not using public funds to support church leadership as “historic and substantial,” and noted that the state policy contained no evidence of “animus towards religion.” 27 In a similar vein, the Court in 1974 upheld a state’s ability to exclude religious schools from school transportation programs.28

Since deciding Locke, however, the Court has seemingly narrowed the “play in the joints” 29 on this issue, rejecting states’ interests in “preventing establishment” in other cases presenting different factual circumstances.30 The Court has suggested that in some cases, failing to accommodate religious activity would demonstrate impermissible hostility to religion.31 Further, more recent decisions have ruled that states violated the Free Exercise Clause by excluding religious organizations from generally available benefits programs. First, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a state acted unconstitutionally when it excluded religious organizations from receiving grants to purchase rubber playground surfaces.32 The Court explained that because the program barred religious organizations based solely on their religious character, this religious penalty was subject “to the ‘most rigorous’ scrutiny” and could be justified only by “a state interest ‘of the highest order.’” 33 In the Court’s view, the state’s interest in “skating as far as possible from religious establishment concerns” was insufficiently “compelling” in light of the policy’s “clear infringement on free exercise.” 34 The Court distinguished Locke by saying the state in Locke had permissibly chosen to deny a scholarship because of what the recipient “proposed to do—use the funds to prepare for the ministry.” 35 By contrast, in Trinity Lutheran, the Supreme Court held that the state was impermissibly denying funds because of what the recipient “was” —a church.36 A plurality of the Court further clarified that the Trinity Lutheran decision did “not address religious uses of funding or other forms of discrimination.” 37

The Court built on Trinity Lutheran's nondiscrimination principle in Espinoza v. Montana Department of Revenue, ruling that a state could not bar religious schools from participating in a tax credit program benefiting private school students.38 The state supreme court had concluded that the program, which originally included religious schools, violated a state constitutional provision that prohibited the government from providing direct or indirect financial support to religious schools.39 The U.S. Supreme Court rejected the state’s argument that it had barred religious schools from the program based on how they would use the funds—for religious education—and held instead that the text of the state constitution barred religious schools from public benefits solely because of their religious character.40 Again distinguishing Locke, the Court emphasized that the state had not merely excluded any “particular ‘essentially religious’ course of instruction,” but barred all aid to religious schools.41 Further, unlike the “'historic and substantial’ state interest in not funding the training of clergy” at issue in Locke, there was no similar historically grounded interest in disqualifying religious schools from public aid more generally.42 Accordingly, following the analysis in Trinity Lutheran, the Court ruled that the exclusion based on religious status was unconstitutional under a strict scrutiny standard.43

In Carson v. Makin, the Court squarely rejected the idea that states could exclude religious schools from an indirect aid program based on religious uses of the funds, further narrowing the play in the joints.44 A state program allowed parents to use tuition assistance funds at public schools or “approved” private schools, which had to be “nonsectarian.” 45 Maine raised two claims to try to avoid Trinity Lutheran.46 First, the state argued its program was designed to provide a public education, which inherently entailed a secular education.47 The Court rejected this claim, saying the state could not recast a discriminatory exclusion as a permissible funding condition.48 Second, seizing on the possible distinction in Trinity Lutheran between religious status and religious use, the state said it excluded sectarian schools based on concerns about public funds being used for religious activities.49 In contrast to Espinoza, the Court in Carson accepted that the state was excluding the schools based on their religious use of funds, rather than merely their religious identity.50 Nonetheless, the Court held that “use-based discrimination” is just as “offensive to the Free Exercise Clause,” 51 at least in the context of a “neutral” indirect benefit program that did not violate the Establishment Clause.52 Accordingly, as in Trinity Lutheran and Espinoza, the Court ruled the exclusion unconstitutional under a strict scrutiny analysis.53 Further, while Trinity Lutheran had distinguished Locke in part by emphasizing that the theology-degree exclusion was based on the recipient’s use of the funds, the Carson opinion distinguished Locke by characterizing the case as having a “narrow focus on vocational religious degrees.” 54

1: U.S. Const. amend. I (emphasis added). The Religion Clauses apply to Congress in the text of the provision, and to the states by incorporation through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262 (1934) (incorporating the Free Exercise Clause); see also Amdt14.S1.4.2 Early Doctrine on Incorporation of the Bill of Rights.
2: E.g., Reynolds v. United States, 98 U.S. 145, 162 (1878).
3: Lee v. Weisman, 505 U.S. 577, 589 (1992).
4: Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963). See also, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 182 (2012) ( “Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” ); Amdt1.2.3.1 Overview of Government Resolution of Religious Disputes.
5: Engel v. Vitale, 370 U.S. 421, 430 (1962).
6: Id.
7: McGowan v. Maryland, 366 U.S. 420, 430 (1961). See also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) ( “The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.” (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 713 (1871))).
8: E.g., Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973); Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality opinion). See also Amdt1.3.2 Accommodationist and Separationist Theories of the Establishment Clause. Cf. Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 20 (U.S. June 27, 2022) (questioning an interpretation that would create tension between the Establishment, Free Exercise, and Free Speech Clauses, saying they should instead be viewed as having complementary purposes).
9: Everson, 330 U.S. at 17.
10: Id. at 16.
11: Id.
12: Id. at 18.
13: Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). In Schempp, however, the Court invalidated mandatory Bible readings in schools despite this caution against hostility to religion, holding these religious exercises instead violated the Establishment Clause’s requirement of “strict neutrality.” Id.
14: Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970).
15: See, e.g., id. at 671–72 (describing prior cases and holding that a property tax exemption that included religious properties used solely for religious purposes did not violate the Establishment Clause). See also, e.g., Cutter v. Wilkinson, 544 U.S. 709, 714 (2005) (holding that federal statute protecting prisoners’ religious exercise did not “exceed the limits of permissible government accommodation of religious practices” ); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (holding that exempting religious organizations’ secular activities from federal law prohibiting employment discrimination was a permissible accommodation consistent with the Establishment Clause); Wisconsin v. Yoder, 406 U.S. 205, 234 n.22 (1972) (holding that exempting the Amish from the state’s compulsory education system was a permissible accommodation consistent with the Establishment Clause); Selective Draft Law Cases, 245 U.S. 366, 389–90 (1918) (saying the “unsoundness” of Free Exercise and Establishment Clause challenges to an exemption from the draft for conscientious objectors was “apparent” ).
16: See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 613 n.59 (1989); Amos, 483 U.S. at 338; Yoder, 406 U.S. at 234 n.22. See also, e.g., Cutter, 544 U.S. at 720 ( “Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise.” ); id. (noting that the Act must “be administered neutrally among different faiths” and that “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” ).
17: See Cnty. of Allegheny, 492 U.S. at 613 n.59 (explaining that a county’s crèche display was not a permissible accommodation, because prohibiting the display in a county building would “not impose a burden on the practice of Christianity (except to the extent that some Christian sect seeks to be an officially approved religion)” ); see also, e.g., Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (plurality opinion) (ruling that a state tax exemption for religious periodicals violated the Establishment Clause as a subsidy directed “exclusively to religious organizations that is not required by the Free Exercise Clause” (emphasis added)).
18: Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 698 (1994) (plurality opinion); accord id. at 711 (Stevens, J., concurring).
19: Id. at 706–07 (plurality opinion); see also Amdt1.3.6.3 Lemon’s Effect Prong and Accommodation of Religion. Cf., e.g., Hobbie v. Unemployment Appeals Comm’n, 480 U.S. 136, 144–45, n.11 (1987) (holding that the government would not violate the Establishment Clause by extending generally available unemployment benefits equally to “religious observers who must leave their employment due to an irreconcilable conflict between the demands of work and conscience” ).
20: Amdt1.3.3 Establishment Clause Tests Generally.
21: Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970).
22: Locke v. Davey, 540 U.S. 712, 722 (2004).
23: Id.
24: Id. at 725.
25: Id. at 719 (characterizing the program as indirect aid); see also Amdt1.3.4.5 Zelman and Indirect Assistance to Religion.
26: Locke, 540 U.S. at 722.
27: Id. at 725.
28: Luetkemeyer v. Kaufmann, 419 U.S. 888 (1974) (mem.), aff’g 364 F. Supp. 376, 386 (W.D. Mo. 1973) (holding that the state’s “long established constitutional policy . . . insist[ing] upon a degree of separation of church and state to probably a higher degree than that required by the First Amendment” was a compelling state interest that justified “any possible” free exercise infringement).
29: Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970).
30: McDaniel v. Paty, 435 U.S. 618, 628–29 (1978) (plurality opinion) (saying that a state’s antiestablishment interest in provisions disqualifying clergy from legislative office “lost whatever validity [it] may once have enjoyed,” ruling that the “essence” of the state’s rationale was “contrary to the [modern] anti-establishment principle with its command of neutrality” ); see also Widmar v. Vincent, 454 U.S. 263, 275–76 (1981) (holding that a state’s interest “in proscribing indirect state support for religion” was not “sufficiently ‘compelling’” to justify closing university facilities to religious worship, given that the state’s antiestablishment interests were “limited by the Free Exercise Clause and in this case by the Free Speech Clause as well” ).
31: See, e.g., Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 28–29 (U.S. June 27, 2022) (saying preventing teachers from engaging in personal religious activity would “preference secular activity” and be hostile to religion); Am. Legion v. Am. Humanist Ass’n, No. 17-1717, slip op. at 2 (U.S. June 20, 2019) (saying that removing a cross that had “become a prominent community landmark” would express hostility to religion); see generally Zorach v. Clauson, 343 U.S. 306, 314 (1952) (saying disallowing accommodation “would . . . find in the Constitution a requirement that the government show a callous indifference to religious groups,” impermissibly “preferring those who believe in no religion over those who do believe” ).
32: Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 15 (U.S. June 26, 2017). See also Amdt1.4.4 Laws that Discriminate Against Religious Practice.
33: Trinity Lutheran, slip op. at 14 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) and McDaniel v. Paty, 435 U.S. 618, 628 (1978)).
34: Id.
35: Id. at 12.
36: Id.
37: Id. at 14 n.3 (plurality opinion).
38: Espinoza v. Mont. Dep’t of Revenue, No. 18-1195, slip op. at 18–20 (U.S. June 30, 2020).
39: Id. at 5.
40: Id. at 10. Although the Court expressed concerns about the text of the state constitutional provision, the ruling solely invalidated this particular application of the provision. See id at 11–12.
41: Id. at 13.
42: Id. (quoting Locke v. Davey, 540 U.S. 712, 725 (2004)).
43: Id. at 18–20.
44: Carson v. Makin, No. 20-1088, slip op. at 15–17 (U.S. June 21, 2022).
45: Id. at 2–3. The assistance was available in districts that did not have a public secondary school. Id. at 2.
46: Id. at 11.
47: Id.
48: Id. at 13. The Court stated that the nonsectarian private schools already participating in the program differed from public schools in a variety of ways, undermining the state’s claim that the program sought to provide the equivalent of a public education. Id. at 12–13.
49: Id. at 16.
50: Id.
51: Id.
52: Id. at 10
53: Id. at 9–10.
54: Id. at 18.