UK Accounting Glossary
The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first part of this provision is known as the Establishment Clause, and the second part is known as the Free Exercise Clause. Although the First Amendment only refers to Congress, the U.S. Supreme Court has held that the Fourteenth Amendment makes the Free Exercise and Establishment Clauses also binding on states (Cantwell v. Connecticut, 310 U.S. 296, 60 S. Ct. 900, 84 L. Ed. 1213 , and Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711 , respectively). Since that incorporation, an extensive body of law has developed in the United States around both the Establishment Clause and the Free Exercise Clause.
To determine whether an action of the federal or state government infringes upon a person’s right to freedom of religion, the court must decide what qualifies as religion or religious activities for purposes of the First Amendment. The Supreme Court has interpreted religion to mean a sincere and meaningful belief that occupies in the life of its possessor a place parallel to the place held by God in the lives of other persons. The religion or religious concept need not include belief in the existence of God or a supreme being to be within the scope of the First Amendment.
As the case of United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944), demonstrates, the Supreme Court must look to the sincerity of a person’s beliefs to help decide if those beliefs constitute a religion that deserves constitutional protection. The Ballard case involved the conviction of organizers of the I Am movement on grounds that they defrauded people by falsely representing that their members had supernatural powers to heal people with incurable illnesses. The Supreme Court held that the jury, in determining the line between the free exercise of religion and the punishable offense of obtaining property under false pretences, should not decide whether the claims of the I Am members were actually true, only whether the members honestly believed them to be true, thus qualifying the group as a religion under the Supreme Court’s broad definition.
In addition, a belief does not need to be stated in traditional terms to fall within First Amendment protection. For example, Scientology—a system of beliefs that a human being is essentially a free and immortal spirit who merely inhabits a body—does not propound the existence of a supreme being, but it qualifies as a religion under the broad definition propounded by the Supreme Court. The Supreme Court has deliberately avoided establishing an exact or a narrow definition of religion because freedom of religion is a dynamic guarantee that was written in a manner to ensure flexibility and responsiveness to the passage of time and the development of the United States. Thus, religion is not limited to traditional denominations.
The First Amendment guarantee of freedom of religion has deeply rooted historical significance. Many of the colonists who founded the United States came to this continent to escape religious persecution and government oppression. This country’s founders advocated religious freedom and sought to prevent any one religion or group of religious organizations from dominating the government or imposing its will or beliefs on society as a whole. The revolutionary philosophy encompassed the principle that the interests of society are best served if individuals are free to form their own opinions and beliefs.
When the colonies and states were first established, however, most declared a particular religion to be the religion of that region. But by the end of the American Revolution, most state-supported churches had been disestablished, with the exceptions of the state churches of Connecticut and Massachusetts, which were disestablished in 1818 and 1833, respectively. Still, religion was undoubtedly an important element in the lives of the American colonists, and U.S. culture remains greatly influenced by religion.
The Establishment Clause prohibits the government from interfering with individual religious beliefs. The government cannot enact laws aiding any religion or establishing an official state religion. The courts have interpreted the Establishment Clause to accomplish the separation of church and state on both the national and state levels of government.
The authors of the First Amendment drafted the Establishment Clause to address the problem of government sponsorship and support of religious activity. The Supreme Court has defined the meaning of the Establishment Clause in cases dealing with public financial assistance to church-related institutions, primarily parochial schools, and religious practices in the public schools. The Court has developed a three-pronged test to determine whether a statute violates the Establishment Clause. According to that test, a statute is valid as long as it has a secular purpose; its primary effect neither advances nor inhibits religion; and it is not excessively entangled with religion. Because this three-pronged test was established in Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 (1971), it has come to be known as the Lemon test. Although the Supreme Court adhered to the Lemon test for several decades, since the 1990s it has been slowly moving away from that test, without having expressly rejected it.
The Court has stated that the Establishment Clause means that neither a state nor the federal government can organize a church. The government cannot enact legislation that aids one religion, aids all religions, or prefers one religion over another. It cannot force or influence a person to participate in, or avoid, religion or force a person to profess a particular religious belief. No tax in any amount can be levied to support any religious activities or organizations. Neither a state nor the federal government can participate, whether openly or secretly, in the affairs of any religious groups.
Federal and state governments have accepted and implemented the doctrine of the separation of church and state by minimizing contact with religious institutions. Although the government cannot aid religions, it can acknowledge their role as a stabilizing force in society. For example, religious institutions, along with other charitable or nonprofit organizations, have traditionally been given tax exemptions. This practice, even when applied to religious organizations, has been deemed constitutional because the legislative aim of a property tax exemption is not to advance religion but to ensure that the activities of groups that enhance the moral and mental attitudes of the community will not be inhibited by taxation. The organizations lose the tax exemption if they undertake activities that do not serve the beneficial interests of society. Thus, in 1983 the Supreme Court decided in Bob Jones University v. United States, 461 U.S. 574, 103 S. Ct. 2017, 76 L. Ed. 2d 157, that nonprofit private schools that discriminated against their students or prospective students on the basis of race could not claim tax-exempt status as a charitable organization for the purposes of federal tax laws.
It is also believed that the elimination of such tax exemptions would lead the government into excessive entanglements with religious institutions. The exemption, therefore, is believed to create only a minimal and remote involvement between church and stateless than would result from taxation. The restricted fiscal relationship, therefore, enhances the desired separation.
Religion and Education
The many situations where religion and education overlap are a source of great controversy. In the early nineteenth century, the vast majority of Americans were Protestant, and Protestant-based religious exercises were common in the public schools. Legal challenges to these practices began in the state courts when a substantial number of Roman Catholics arrived in the United States. Until 1962 when the U.S. Supreme Court began to directly address some of these issues, most states upheld the constitutionality of prayer and Bible reading in the public schools.
In the 1962 case of Engel v. Vitale, 370 U.S. 421, 82 S. Ct. 1261, 8 L. Ed. 2d 601, the Supreme Court struck down as unconstitutional a prayer that was a recommended part of the public school curriculum in the state of New York. The prayer had been approved by Protestant, Catholic, and Jewish leaders in the state. Although the prayer was nondenominational and student participation in it was strictly voluntary, it was struck down as violative of the Establishment Clause.
In 1963 the Supreme Court heard the related issues of whether voluntary Bible readings or recitation of the Lord’s Prayer were constitutionally appropriate exercises in the public schools (Abington School District v. Schempp, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844). It was in these cases that the Supreme Court first formulated the three-pronged test for constitutionality. In applying the new test, the Court concluded that the exercises did not pass the first prong of the test: they were not secular in nature, but religious, and thus they violated the Establishment Clause because they violated state neutrality requirements.
Although students in public schools are not permitted to recite prayers, the practice of a state legislature opening its sessions with a nondenominational prayer recited by a chaplain receiving public funds has withstood constitutional challenge. In Marsh v. Chambers, 463 U.S. 783, 103 S. Ct. 3330, 77 L. Ed. 2d 1019 (1983), the Supreme Court ruled that such a practice did not violate the Establishment Clause. In making its decision, the Court noted that this was a customary practice and that the proponents of the Bill of Rights also approved of the government appointment of paid chaplains.
The Supreme Court has also held that a religious invocation, instituted by school officials, at a public school graduation violates the Establishment Clause (Lee v. Weisman, 505 U.S. 577, 112 S. Ct. 2649, 120 L. Ed. 2d 467 ).
In 1980 the Supreme Court overturned a Kentucky statute requiring the posting of the Ten Commandments, copies of which were purchased with private contributions, in every public school classroom (Stone v. Graham, 449 U.S. 39, 101 S. Ct. 192, 66 L. Ed. 2d 199). Although the state argued that the postings served a secular purpose, the Court held that they were plainly religious. Four of the Supreme Court’s nine justices dissented from the Court’s opinion and were prepared to conclude that the postings were proper based on their secular purpose.
Because the Establishment Clause calls for government neutrality in matters involving religion, the government need not be hostile or unfriendly toward religions because such an approach would favor those who do not believe in religion over those who do. In addition, if the government denies religious speakers the ability to speak or punishes them for their speech, it violates the First Amendment’s right to freedom of speech. The Supreme Court held in 1981 that it was unconstitutional for a state university to prohibit a religious group from using its facilities when the facilities were open for use by organizations of all other kinds (Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440). The principles established in Widmar were unanimously reaffirmed by the Supreme Court in Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). In 1995 the Supreme Court held that a state university violates the Free Speech Clause when it refuses to pay for a religious organization’s publication under a program in which it pays for other student organization publications (Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700).
Facing another education and religion issue, the Supreme Court declared in McCollum v. Board of Education, 333 U.S. 203, 68 S. Ct. 461, 92 L. Ed. 649 (1948), that public school buildings could not be used for a program that allowed pupils to leave classes early to receive religious instruction. The Court found that this program violated the Establishment Clause because the tax-supported public school buildings were being used for the teaching of religious doctrines, which constituted direct government assistance to religion.
However, the Court held that a release-time program that took place outside the public school buildings was constitutional because it involved neither religious instruction in public school classrooms nor the expenditure of public funds (Zorach v. Clauson, 343 U.S. 306, 72 S. Ct. 679, 96 L. Ed. 954 ). All costs in that case were paid by the religious organization conducting the program.
The U.S. Supreme Court has also held that states may not restrict the teaching of ideas on the grounds that they conflict with religious teachings where those ideas are part of normal classroom subjects. In Epperson v. Arkansas, 393 U.S. 97, 89 S. Ct. 266, 21 L. Ed. 2d 228 (1968), the Court struck down a state statute that forbade the teaching of evolutionary theory in public schools. The Court held that the statute violated the Establishment Clause because its purpose was to protect religious theories of creationism from inconsistent secular theories.
In a 1993 case, the Supreme Court held that the Establishment Clause did not prevent a public school from providing a sign language interpreter for a deaf student who attended a religiously affiliated school within the school district (Zobrest v. Catalina Foothills School District, 509 U.S. 1, 113 S. Ct. 2462, 125 L. Ed. 2d 1). Commentators have noted that this case demonstrates the Court’s willingness to uphold religiously neutral government aid to all school children, regardless of whether they attend a religiously affiliated school, where the aid is designed to help the children overcome a physical or learning disability. It is not clear, however, whether the Court will extend this holding to more general forms of aid to children in religious and public schools alike.
Government and Religion
The closing of government offices on particular religious holidays is unconstitutional if no secular purpose is served (Mandel v. Hodges, 54 Cal. App. 3d 596, 127 Cal. Rptr. 244 ). But if employees won the closing through collective bargaining, it is permissible even without a secular purpose (Americans United for Separation of Church and State v. Kent County, 97 Mich. App. 72, 293 N.W.2d 723 ).
Government display of symbols with religious significance raises Establishment Clause issues. In the 1984 case of Lynch v. Donnelly, 465 U.S. 668, 104 S. Ct. 1355, 79 L. Ed. 2d 604, the Supreme Court upheld the right of a city to erect in a park a Christmas display that included colored lights, reindeer, candy canes, a Santa’s house, a Christmas tree, a “SEASONS GREETINGS” banner, and a nativity scene. The Court decided the inclusion of the nativity scene along with traditional secular Christmas symbols did not promote religion to an extent prohibited by the First Amendment.
Free Exercise Clause
The Free Exercise Clause guarantees a person the right to practice a religion and propagate it without government interference. This right is a liberty interest that cannot be deprived without due process of law. Although the government cannot restrict a person’s religious beliefs, it can limit the practice of faith when a substantial and compelling state interest exists. The courts have found that a substantial and compelling state interest exists where the religious practice poses a threat to the health, safety, or welfare of the public. For example, the government could legitimately outlaw the practice of polygamy that was formerly mandated by the doctrines of the Church of Jesus Christ of Latter-day Saints (Mormons) but could not outlaw the religion or belief in Mormonism itself (Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 ). The Supreme Court has invalidated very few actions of the government on the basis of this clause.
Religious practices are not the only method by which a violation of the Free Exercise Clause can occur. In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Supreme Court held that a public school could not expel children because they refused on religious grounds to comply with a requirement of saluting the U.S. flag and reciting the pledge of allegiance. In that case, the children were Jehovah’s Witnesses, and they believed that saluting the flag fell within the scope of the biblical command against worshipping false gods.
In Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held those state laws requiring children to receive education up to a certain age impinged upon the religious freedom of the Amish who refused to send their children to school beyond the eighth grade because they believed that it would impermissibly expose the children to worldly influences that conflicted with their religious beliefs.
In 1993 Congress passed the controversial Religious Freedom Restoration Act (RFRA), which provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government can demonstrate that the burden furthers a compelling governmental interest in the least restrictive way. This statute was enacted in response to the Supreme Court’s 1990 decision in Employment Division v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876. The Smith case involved a state law that denied unemployment compensation benefits to anyone who had been fired from his or her job for job-related misconduct. This case involved two individuals who had been fired from their jobs for ingesting peyote, which was forbidden by state law. The individuals argued that their ingestion of peyote was related to a religious ceremony in which they participated. The Supreme Court ruled that the Free Exercise Clause did not require an exemption from the state law banning peyote use and that unemployment compensation could therefore lawfully be denied.
RFRA directly superseded the Smith decision. However, soon after it was enacted, many courts ruled that RFRA violated either the Establishment Clause or the separation of powers doctrine. In the 1997 case of City of Boerne v. P. F. Flores, 1997 WL 345322, the U.S. Supreme Court voted 6-3 to invalidate RFRA on the grounds that Congress had exceeded the scope of its enforcement power under section 5 of the Fourteenth Amendment in enacting RFRA. Section 5 of the Fourteenth Amendment permits Congress to enact legislation enforcing the Constitutional right to free exercise of religion. However, the Court held that this power is limited to only preventative or remedial measures. The court found that RFRA went beyond that and actually made substantive changes in the governing law. Because Congress exceeded its power under the Fourteenth Amendment in enacting RFRA, it contradicted vital principles necessary to maintain separation of powers and the federal-state balance, and thus was unconstitutional.
Although the Free Exercise Clause protects against government action, it does not restrict the conduct of private individuals. For example, the courts generally will uphold a testator’s requirement that a beneficiary attend a specified church to receive a testamentary gift, because the courts refuse to question the religious views of a testator in the interest of public policy. Similarly, the Free Exercise Clause does not protect a person’s religious beliefs from infringement by the actions of private corporations or businesses, although federal and state civil rights laws may make such private conduct unlawful.
The government cannot enact a statute that wholly denies the right to preach or to disseminate religious views, but a state can constitutionally regulate the time, place, and manner of soliciting upon the streets and of conducting meetings in order to safeguard the peace, order, and comfort of the community. It can also protect the public against frauds perpetrated under the cloak of religion, as long as the law does not use a process amounting to a prior restraint, which inhibits the free exercise of religion. In a 1951 case, the Supreme Court held that it was unconstitutional for a city to deny a Baptist preacher the renewal of a permit for evangelical street meetings, even though his previous meetings included attacks on Roman Catholicism and Judaism that led to disorder in the streets, because it constituted a prior restraint (Kunz v. New York, 340 U.S. 290, 71 S. Ct. 312, 95 L. Ed. 280).
State laws known as Sunday closing laws, which prohibit the sale of certain goods on Sundays, have been declared constitutional against the challenge of Orthodox Jews who claimed that the laws created economic hardship for them because their faith requires them to close their businesses on Saturdays and who therefore wanted to do business on Sundays (Braunfield v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 ). The Supreme Court held that although the law imposed an indirect burden on religion, it did not make any religious practice itself unlawful.
In United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed. 2d 127 (1982), the Supreme Court upheld the requirement that Amish employers withhold Social Security and unemployment insurance contributions from their employees, despite the Amish argument that this violated their rights under the Free Exercise Clause. The Court found that compulsory contributions were necessary to accomplish the overriding government interest in the proper functioning of the Social Security and unemployment systems.
The Supreme Court has also upheld the assignment and use of Social Security numbers by the government to be a legitimate government action that does not violate the Free Exercise Clause (Bowen v. Roy, 476 U.S. 693, 106 S. Ct. 2147, 90 L. Ed. 2d 735 ).
In the 1989 case of Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 109 S. Ct. 2136, 104 L. Ed. 2d 766, the Supreme Court held that the government’s denial of a taxpayer’s deduction from gross income of “fixed donations” to the Church of Scientology for certain religious services was constitutional. These fees were paid for certain classes required by the Church of Scientology, and the Court held that they did not classify as charitable contributions because a good or service was received in exchange for the fee paid.
In Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 110 S. Ct. 688, 107 L. Ed. 2d 796 (1990), the Court ruled that a religious organization is not exempt from paying a state’s general sales and use taxes on the sale of religious products and religious literature.
Similarly, the Court decided in Heffron v. International Society for Krishna Consciousness (ISKCON), 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), that a state rule limiting the sale or distribution of merchandise to specific booths was lawful, even when applied to ISKCON members whose beliefs mandated them to distribute or sell religious literature and solicit donations in public places.
Military regulations have also been challenged under the Free Exercise Clause. In Goldman v. Weinberger, 475 U.S. 503, 106 S. Ct. 1310, 89 L. Ed. 2d 478 (1986), the Supreme Court held that the Free Exercise Clause did not require the Air Force to permit an Orthodox Jewish serviceman to wear his yarmulke while in uniform and on duty. The Court found that the military’s interest in discipline was sufficiently important to outweigh the incidental burden the rule had on the serviceman’s religious beliefs.
However, a law that places an indirect burden on the practice of religion so as to impede the observance of religion, or a law that discriminates between religions, is unconstitutional. Thus, the Supreme Court has held that the denial of unemployment compensation to a Seventh Day Adventist who was fired from her job and could not obtain any other work because of her refusal to work on Saturdays for religious reasons was unconstitutional (Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 ). The Sherbert case was reaffirmed and applied in the 1987 case of Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190.
In the 1993 case of Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S. Ct. 2217, 124 L. Ed. 2d 472, remanded on other grounds, the High Court overturned a city law that forbade animal slaughter insofar as the law banned the ritual animal slaughter by a particular religious sect. The Court found that the law was not a religiously neutral law of general applicability but was specifically designed to prevent a religious sect from carrying out its religious rituals.
In Cruz v. Beto, 405 U.S. 319, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972), the Supreme Court affirmed that prisoners are entitled to their rights under the Free Exercise Clause, subject only to the requirements of prison security and discipline. Thus, the Court held that a Texas prison must permit a Buddhist prisoner to use the prison chapel and share his religious materials with other prisoners, just as any other prisoner would be permitted to so act.
States have been allowed to deny disability benefits, however, to applicants who refuse to submit to medical examinations for religious reasons. Courts have held that this is constitutional because the state has a compelling interest in verifying that the intended recipients of the tax-produced assistance are people who are legitimately entitled to receive the benefit. Likewise, states can regulate religious practices to protect public health. Thus, state laws requiring the vaccination of all children before they are allowed to attend school are constitutional because the laws are designed to prevent the widespread epidemic of contagious diseases. Public health protection has been deemed to outweigh any competing interest in the exercise of religious beliefs that oppose any forms of medication or immunization.
A number of cases have involved the issue of whether there is a compelling state interest to require that a blood transfusion be given to a patient whose religion prohibits such treatment. In these cases, the courts look to the specific facts of the case, such as whether the patient is a minor or a mentally incompetent individual, and whether the patient came to the hospital voluntarily seeking help. The courts have generally authorized the transfusions in cases of minors or mentally incompetent patients in recognition of the compelling government interest to protect the health and safety of people. However, the courts are divided as to whether they should order transfusions where the patient is a competent adult who steadfastly refuses to accept such treatment on religious grounds despite the understanding that her or his refusal could result in death. The Supreme Court has not ruled on this issue yet, and therefore there is no final judicial opinion on the propriety of such orders.
The use of secular courts to determine intra-church disputes has raised issues under both the Free Exercise Clause and the Establishment Clause. The Supreme Court decided in the 1871 case of Watson v. Jones, 80 U.S. 679, 20 L. Ed. 666, that judicial intervention in cases involving ownership and control of church assets necessarily had to be limited to determining and enforcing the decision of the highest judicatory body within the particular religious group. For congregational religious groups, such as Baptists and Jews, the majority of the congregation was considered the highest judicatory body. In hierarchical religions, such as the Roman Catholic Church and the Russian Orthodox Church, the diocesan bishop was considered the highest judicatory authority. The Supreme Court consistently applied that principle until its 1979 decision in Jones v. Wolf, 443 U.S. 595, 99 S. Ct. 3020, 61 L. Ed. 2d 775. In that case, the Court held that the “neutral principles of law developed for use in all property disputes” could be constitutionally applied in intra-church litigation. Under this case courts can examine the language of the church charters, real and personal property deeds, and state statutes relating to the control of property generally.
Religious Oaths Prohibited
The Constitution also refers to religion in Article VI, Clause 3, where it provides, “No religious test shall ever be required as a qualification to any office or public trust under the United States.” The provision is binding only on the federal government.
In early American history, individual states commonly required religious oaths for public officers. But after the Revolutionary War, most of these religious tests were eliminated. Today, the individual states, through their constitutions or statutes, have restrictions similar to that of the U.S. Constitution, on imposing a religious oath as a condition to holding a government position.
Freedom to express religious beliefs is entwined with the First Amendment guarantee of freedom of expression. The federal or state governments cannot require an individual to declare a belief in the existence of God as a qualification for holding office (Torcaso v. Watkins, 367 U.S. 488, 81 S. Ct. 1680, 6 L. Ed. 2d 982 ).
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This glossary post was last updated: 18th March 2020.