Download First Amendment Rights

Separation: Good for Government,
Good for Religion
The right to freedom of religion is so central to American democracy that it was enshrined in the First Amendment to the Constitution
along with other fundamental rights such as freedom of speech and freedom of the press.
In order to guarantee an atmosphere of absolute religious liberty, this country's founders also
mandated the strict separation of church and state. Largely because of this prohibition against
government regulation or endorsement of religion, diverse faiths have flourished and thrived in
America since the founding of the republic. Indeed, James Madison, the father of the United
States Constitution, once observed that "the [religious] devotion of the people has been manifestly
increased by the total separation of the church from the state."
"Congress shall make no law
respecting an establishment of
religion, or prohibiting the free
exercise thereof..."
-- The First Amendment
Americans are still among the most religious people in the world. Yet the government plays almost
no role in promoting, endorsing or funding religious institutions or religious beliefs. Free from
government control -- and without government assistance -- religious values, literature, traditions and holidays permeate the lives of our
citizens and, in their diverse ways, form an integral part of our national culture. By maintaining the wall separating church and state, we
can guarantee the continued vitality of religion in American life.
First Amendment to the United States Constitution
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"First Amendment" redirects here. For other uses, see First Amendment (disambiguation).
The First Amendment (Amendment I) to the United States Constitution is part of the Bill of
Rights. The amendment prohibits the making of any law respecting an establishment of
religion, impeding the free exercise of religion, abridging the freedom of speech, infringing
on the freedom of the press, interfering with the right to peaceably assemble or
prohibiting the petitioning for a governmental redress of grievances.
Originally, the First Amendment applied only to laws enacted by the Congress. However,
starting with Gitlow v. New York, the Supreme Court has applied the First Amendment to
each state. This was done through the Due Process Clause of the Fourteenth Amendment.
The Court has also recognized a series of exceptions to provisions protecting the freedom
of speech. First Amendment
The First Amendment to the United States Constitution codifies the freedom of speech as a
constitutional right. The Amendment was adopted on December 15, 1791. The
Amendment states:
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.
Although the text of the Amendment prohibits only the United States Congress from
enacting laws that abridge the freedom of speech, the Supreme Court used the
incorporation doctrine in Gitlow v. New York (1925) to also prohibit state legislatures from
enacting such laws
Provisions of the Bill of Rights apply to both the federal government and the states
The Supreme Court previously held, in Barron v. Baltimore, 32 U.S. 243 (1833), that the
Constitution's Bill of Rights applied only to the federal government, and that,
consequently, the federal courts could not stop the enforcement of state laws that
restricted the rights enumerated in the Bill of Rights. Gitlow v. New York's partial reversal
of that precedent began a trend toward nearly complete reversal; the Supreme Court now
holds that almost every provision of the Bill of Rights applies to both the federal
government and the states.
Freedom of association
Further information: Freedom of association
Although it is not explicitly protected in the First Amendment, the Supreme Court ruled, in
NAACP v. Alabama, 357 U.S. 449 (1958), freedom of association to be a fundamental right
protected by it. In Roberts v. United States Jaycees, 468 U.S. 609 (1984), the Supreme Court
held that associations may not exclude people for reasons unrelated to the group's
expression. However, in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of
Boston, 515 U.S. 557 (1995), the Court ruled that a group may exclude people from
membership if their presence would affect the group's ability to advocate a particular
point of view. Likewise, in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Supreme
Court ruled that a New Jersey law, which forced the Boy Scouts of America to admit an
openly gay member, to be an unconstitutional abridgment of the Boy Scouts' right to free
association. The establishment clause arose during James Madison's efforts to have the
constitution ratified. Virginia had disestablished the gentry-supported Church of England
during and after the American Revolution. This left the Baptists in a position of political
influence. Col. Thomas Barber, an opponent of the constitution in Madison's home of
Orange County, Virginia, began a campaign for election to the state ratifying convention.
He garnered support among the local Baptists by warning them that the constitution had
no safeguard against creating a new national church. To head off Barber's challenge,
Madison met with influential Baptist preacher John Leland and promised that, in exchange
for Leland's support of ratification, he would sponsor several amendments that were
ultimately combined into the First Amendment. The Establishment Clause was established
mainly as a consensus among all of the religious groups in America during 1787, to
prevent one religion from having too much influence.
Incorporation
Prior to the enactment of the Fourteenth Amendment to the United States Constitution in
1868, the Supreme Court generally held that the substantive protections of the Bill of
Rights did not apply to state governments. Subsequently, under the Incorporation
doctrine, the Bill of Rights has been broadly applied to limit state and local government as
well. The process of incorporating the two Religion Clauses in the First Amendment was
twofold. The first step was the Supreme Court’s conclusion in 1940 that the Free Exercise
Clause was made applicable to the states through the Fourteenth Amendment.[2]
Conceptually, this raised few difficulties: the Due Process Clause protects those rights in
the Bill of Rights “implicit in the concept of ordered liberty,”[3] and free exercise of religion
is a quintessential individual right (and had been recognized as such at the state level
from the beginning).[4]
Incorporation of the Establishment Clause in 1947,[5] however, was much more tricky and
has been subject to much more critique.[6][7][8][9][10] The controversy surrounding
Establishment Clause incorporation primarily stems from the fact that one of the
intentions of the Establishment Clause was to prevent Congress from interfering with
state establishments of religion that existed at the time of the founding (at least six states
had established religions at the founding[11]) – a fact conceded by even those members of
the Court who believe the Establishment Clause was made applicable to the states through
incorporation.[12] Critics have also argued that the Due Process Clause of the Fourteenth
Amendment is understood to incorporate only individual rights found in the Bill of Rights;
the Establishment Clause, unlike the Free Exercise Clause (which critics readily concede
protects individual rights),[13][14] does not purport to protect individual rights.[15]
Financial assistance
The Supreme Court first considered the question of financial assistance to religious
organizations in Bradfield v. Roberts (1899). The federal government had funded a
hospital operated by a Roman Catholic institution. In that case, the Court ruled that the
funding was to a secular organization—the hospital—and was therefore permissible.
In the twentieth century, the Supreme Court more closely scrutinized government activity
involving religious institutions. In Everson v. Board of Education (1947), the Supreme
Court upheld a New Jersey statute funding student transportation to schools, whether
parochial or not. Justice Hugo Black held,
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."
The New Jersey law was upheld, for it applied "to all its citizens without regard to their
religious belief." After Everson lawsuits in several states sought to disentangle public
moneys from religious teaching, the leading case being the 1951 Dixon School Case out of
New Mexico.[16]
The Jefferson quotation cited in Black's opinion is from a letter Jefferson wrote in 1802 to
the Baptists of Danbury, Connecticut, that there should be "a wall of separation between
church and state." Critics of Black's reasoning (most notably, former Chief Justice William
H. Rehnquist) have argued that the majority of states did have "official" churches at the
time of the First Amendment's adoption and that James Madison, not Jefferson, was the
principal drafter. However, Madison himself often wrote of "perfect separation between
the ecclesiastical and civil matters" (1822 letter to Livingston), "line of separation
between the rights of religion and the civil authority... entire abstinence of the
government" (1832 letter Rev. Adams), and "practical distinction between Religion and
Civil Government as essential to the purity of both, and as guaranteed by the Constitution
of the United States" (1811 letter to Baptist Churches).