Let’s begin—as we always do when interpreting the Constitution—with the Constitution’s text: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .
So, there are two religion clauses in the First Amendment:
- The Establishment Clause prohibits the government from establishing or creating a religion in any way. That’s why we don’t have an official religion in the United States.
- And the Free Exercise Clause gives us all the right to worship God, or not, as we choose. That means the government can’t punish you because of your religious beliefs, or because you don’t belong to a church, or believe in God.
Together, these freedoms make up the foundation of our freedom of conscience, which protects our complete freedom of thought and opinion, and the freedom to worship, or not, as we please.
But how do we know if the government has established a religion? How can we counteract the power of one group, usually the majority, to take away or curtail the rights of a religious minority? Those questions are at the heart of the First Amendment’s protection of religious liberty, and they remain among the most hotly contested questions in constitutional law today.
Big Idea
The First Amendment protects religious liberty in two ways. First, it guards against government establishment of religion. And second, it protects the free exercise of religion. Together, these constitutional promises are at the core of our freedom of conscience—the right to freely believe as we wish.
The Founding Story of the Religion Clauses
Why did the Founding generation write the Religion Clauses into the Bill of Rights? To answer this key question, it’s important to remember a bit about the context in colonial America and at the Founding. American settlers—facing religious oppression at home—crossed the Atlantic in search of religious freedom. The result? A new world defined, in part, by religious diversity.
Consider the religious and geographic diversity in early America. We had Puritans in New England; Anglicans in the South; Quakers and Lutherans in Pennsylvania; Roman Catholics in Maryland; Presbyterians throughout the middle colonies; and Jewish congregations from Newport, Rhode Island, to Savannah, Georgia
But early America wasn’t just a land of religious diversity. It was also a society with many government-established churches. During colonial America, the Church of England was established by law in all of the Southern colonies. And local Puritan “Congregationalist” establishments held sway in most of New England.
What did these established churches look like?
Clergy were appointed and overseen by colonial officials.
Colonists had to pay religious taxes. Some even had to attend church services.
And dissenters were often punished for preaching without a license or refusing to pay church taxes.
At the same time, there were a few states that didn’t have established churches—namely, Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York.
So, what does this history have to do with the First Amendment?
Following Independence, there was a general consensus that the national government shouldn’t be able to establish a national church. In other words, the national government shouldn’t be in the business of enforcing a particular religious sect or set of beliefs. The Establishment Clause, authored by James Madison, reflected this consensus and the underlying belief that religious belief was actually helped by pluralism and a diversity of viewpoints rather than enforced belief.
But, at the Founding, this Clause wasn’t really a triumph for religious liberty. Instead, it was a triumph for federalism. The language of the Clause itself applied only to the national government—calling out Congress. So, following the ratification of the First Amendment (and its Establishment Clause), the national government couldn’t establish a national church, but states still could. And Congress couldn’t interfere with, or try to dis-establish, churches established by state and local governments.
Even so, by 1833, all states had disestablished their state churches. Today, thanks to the Fourteenth Amendment and incorporation, the Establishment Clause applies to state governments, too.
So, that’s the Establishment Clause. What about the Free Exercise Clause?
Of course, it’s important to remember that America is a nation defined—in part—by religious diversity, with many dissenters drawn to America by the promise of religious liberty. Although these new settlers often understood religious liberty more narrowly than we do today, support for protection of some conception of religious liberty was broad and deep. As a result, it shouldn’t come as a surprise that the Founding generation remained committed to the freedom of conscience.
By the ratification of the U.S. Constitution, freedom of religion was among the most widely recognized natural rights, protected in some fashion by state bills of rights and judicial decisions. For example, James Madison, main author of the First Amendment, expressed his support for such a provision in Virginia: “It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.”
This grew out of Madison’s own experience in Virginia as a state legislator in the 1780s. In 1785, during the Virginia legislative debate over whether to continue to fund churches with tax money, Madison wrote an important petition called his “Memorial and Remonstrance Against Religious Assessments,” which listed 15 arguments against government support of churches, arguing that religion was a matter of individual conscience and could not be directed by the government in any capacity.
Of course, the original Constitution itself promoted religious liberty, with Article VI banning religious tests for federal office. But “We the People” also wrote protections for religious liberty in the Bill of Rights when we ratified the Free Exercise Clause as part of the First Amendment in 1791.
In the end, James Madison and the First Congress drafted the First Amendment with this history in mind. With the First Amendment, Madison and the Framing generation looked to protect the American people from abuses by the newly formed national government. Consistent with America’s religious diversity, the First Amendment was designed to protect the right of individual believers to worship as they liked.
