The 1st Amendment: Delving into the Freedom of Religion

In episode 76, we kick off a mini-series talking about the First Amendment. We particularly zero in on the freedom of religion, its interpretations, and its colossal impact on the legal landscape.

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Resources:

• First Amendment | Contents, Freedoms, Rights, & Facts | Britannica
• U.S. Constitution - First Amendment | Resources | Constitution Annotated | Congress.gov | Library of Congress
• Religious Liberty: Landmark Supreme Court Cases - Bill of Rights Institute
• Coercing Definition & Meaning - Merriam-Webster

This episode was edited by Kevin Tanner. Learn more about him and his services here:

• Website: https://www.kevwyxin.com/
• Instagram: @kevwyxin

If you purchase from any links to resources or products, the show may make a small commission.

Transcript

Ashley: 0:00

Finally, I got a mnemonic phrase that I think will resonate with all of us so we can remember the five freedoms by saying raise Stein's for a pint, so raise religion, stein's speech, or press a assembly and P petition. Raise Stein's for a pint. If you want to remember your five freedoms, the first amendment gives you pour a pint. If you want to remember your five freedoms, the First Amendment gives you Welcome back to the United.

Sara: 0:34

She Stands podcast the show that brings kindness and women into politics. I'm Ashley and I'm Sarah, and we're two women from Ohio who are here to become more educated about American politics and build a community so we can all get involved and make an impact together.

Ashley: 0:47

We hope we'll inspire and empower you along the way. Hello and welcome back to another episode of the United she Stands podcast. We've had it in the plan for a while now to do some episodes breaking down some of the amendments, so we're really excited today to do just that with what will be one of several episodes on the First Amendment. But before we dive in, sarah, what?

Sara: 1:19

are we drinking Miller Lite? Oh yum, I'm kidding, I'm not drinking Miller Lite, but I'm drinking something comparable to Miller Lite, because I'm drinking water.

Ashley: 1:31

Same water for me as well. Nothing crazy going on, we just literally weren't feeling the beer today.

Sara: 1:38

I know I think we're sick, something's wrong with us, I don't know, just not into it right now. Okay, so the First Amendment was ratified in 1791 as part of the Bill of Rights which, as a reminder, is the first 10 amendments to our US Constitution. So what is the First Amendment? What does it do? Well, we're going to start by reading it to you, and don't worry, it's one sentence, so really nothing crazy here.

Sara: 2:06

The First 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. That's it, folks. That's the First Amendment. That one sentence right there gives us five freedoms Religion, speech, press, peaceable assembly and petition. So now we all know what the First Amendment is. Right, we can wrap the episode. I think that goes down as our quickest episode to date. Oh, just kidding. Even though it's one sentence, there's so much that goes into each clause of that sentence. So obviously we're here to break them down for you and to talk about the interpretation from the courts of this amendment over the years.

Ashley: 2:56

But before we do that, sarah, without looking, can you name the five again, the five freedoms, without looking at our document?

Sara: 3:05

yeah, um speech, religion, press peaceably assemble, aka. Um, what's the uh protest? Um, oh my gosh, what's the last one? What did I already say?

Ashley: 3:20

petition well, that was the last one petition. You did it. You did it, you actually did really well. So I'm like, like I would say, like sometimes you know how it is when we read these or write these. I like don't retain it. So I was thinking and I'm like, okay, for some reason, first of all, I just feel like I should know this. But also one day, down the road, when I'm sitting in a bar and trivia comes on, if I can't get this question right, I'm going to be pissed.

Ashley: 3:42

So I was like, how can I make it? So we make sure we remember this. And I thought so what if we made a fun mnemonic phrase that made this easy to remember? And I would love to tell you that I came up with this on my own, but I didn't. I used chat GPT and I had to go several times at her because she kept giving me really dumb stuff. But finally I got a mnemonic phrase that I think will resonate with all of us, so we can remember the five freedoms by saying raise Stein's, pour a pint. So raise religion, stein's speech pour press A assembly and P petition Raise Stein's, pour a pint. If you want to remember your five freedoms, the First Amendment gives you.

Sara: 4:25

I have never been more impressed with AI in my entire life. That is so awesome.

Ashley: 4:30

I know. So anyway, don't say we never did anything for you. There you go, a beer-themed mnemonic phrase. You're so welcome.

Sara: 4:40

We will take our payment in beer, of course.

Ashley: 4:42

Yes exactly Okay, moving on. So today we are actually going to just break down one of these freedoms, one little clause from the First Amendment, and the freedom we're going to talk about today is religion. So maybe you're thinking how could we make a whole episode on one little clause out of the five? Well, you're in for a real treat, because there's just so much that goes into interpreting our laws, and the religion clause from the First Amendment is no exception. So let's dive in.

Sara: 5:09

Here we go. The first two provisions of the First Amendment are known as the religion clauses, specifically the establishment clause, which is Congress shall make no law respecting the establishment of religion and the free exercise clause or prohibiting the free exercise thereof. The establishment clause prohibits the government from establishing an official religion or taking actions that favor one religion over another or over a non-religion. The free exercise clause prevents the government from prohibiting the free exercise of religion.

Ashley: 5:42

So, like we said earlier, this amendment was ratified in 1791, but all states did not apply it right away. It was not until later, when court rulings made it applicable to the states by incorporation through the 14th Amendment, that it was a right protected at both the state and federal level. Together with the constitutional provision that prohibits religious tests as a qualification for office the Constitution of the United States these clauses ensure individual freedom of religion and separation of church and state.

Sara: 6:07

It seems sort of straightforward but, like many clauses in our Constitution, the interpretation and meaning has been debated since they were ratified. So let's take a look at some of the most consequential court cases that have interpreted these two clauses specifically, and we'll start with the Establishment Clause. The first one we'll note here is Everson v Board of Education in 1947. The first one we'll note here is Everson v Board of Education in 1947. No-transcript that the law was constitutional because the transportation reimbursements were provided to all students regardless of religion and the reimbursements were made directly to parents and not to any religious institution. This case also applied the Establishment Clause to the actions of state governments, which is really the landmark, impactful piece of this ruling.

Ashley: 7:08

The second court case is Torcaso v Watkins. In 1961. The court considered whether the establishment clause of the First Amendment was violated by a Maryland requirement that a candidate for public office declare a belief in God to be eligible for the position. In a unanimous decision, the court held that the requirement violated the establishment clause by giving preference to candidates who believed in God and were willing to state their beliefs over other candidates. This Maryland requirement effectively aided religions involving a belief in God at the expense of religions or beliefs that do not, a position that a state is expressly prohibited from taking.

Sara: 7:41

Next we have Engel v Vitale in 1962. Engel v Vitale in 1962. The court in this case looked at whether the daily reading of a state-composed non-denominational prayer in school violated the Establishment Clause of the First Amendment. In a 6-1 decision the court ruled that New York's official prayer to begin the school day was an unconstitutional violation of Abington Township, pennsylvania v Shemp in 1963 and Murray v Curlett in 1963, which were around requiring prayer, readings of the Bible or other required religious activities in school. All decided that these types of activities violated the Establishment Clause of the First Amendment.

Ashley: 8:24

Apart from these landmark rulings, there are three other court cases we're going to touch on because the decisions from those cases have created tests that the courts have made up and used to help clarify throughout history if the Establishment Clause was being violated. There are some other tests, but the three most commonly used throughout history have been the Lemon, the Endorsement and the Coercion Tests. So first, lemon v Kurtzman in 1971.

Ashley: 8:47

The court considered whether a Pennsylvania law reimbursing religious schools with state funds for textbooks and teacher salaries for non-public, non-secular schools violated the Establishment Clause of the First Amendment. In an 8-0 decision, the court struck down the Pennsylvania law as in violation of the Establishment Clause, finding that the statute constituted an excessive government entanglement with religion. They came to this conclusion using a three-pronged test which determined a statute as constitutional if, number one, it has a primarily secular purpose. Number two, its principal effect neither aids nor inhibits religion. And number three, government and religion are not excessively entangled. This three-pronged test is known as the Lemon Test and this was used in many court cases throughout history, but the court ultimately said Lemon was abandoned in a 2022 opinion, which is Kennedy v Bremerton School District, which we will be discussing in more detail here in a few minutes 2022, that's pretty recent, pretty recent.

Sara: 9:46

The second test we're going to talk about is the endorsement test In Lynch v Donnelly, issued in 1984, justice Sandra Day O'Connor suggested a clarification of Lemon. She argued that the court should ask whether Citi's Christmas display had endorsed Christianity. Saying that the first and second prongs of the Lemon test relate to endorsement, justice O'Connor stated the purpose prong of the Lemon Test relate to endorsement. Justice O'Connor stated the purpose prong of the Lemon Test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval. In a later concurrence, justice O'Connor stated that endorsement should be judged by whether a reasonable observer would think the government is endorsing religion. The Supreme Court as a whole employed this endorsement variation on Lemon in a number of cases.

Ashley: 10:38

And lastly, we're going to talk about the coercion test. This test is used particularly in the context of government-sponsored prayer practices. For these types of events, the Supreme Court has sometimes evaluated Establishment Clause challenges by looking for impermissible government coercion. Although the court has said the Establishment Clause is concerned with many aspects of the relationship between government and religion, at a minimum the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.

Sara: 11:06

So real quick, let's start with this. To coerce is to compel to an act or choice or to achieve by force or threat. Now let's look at some court cases. There are several court cases where the Supreme Court has held that the government violates the Establishment Clause where there is coercion, including indirect coercive pressure. In Engel v Vitale, 1962, the court clarified that a law requiring a specific prayer to be recited in schools was unconstitutional, even though students could opt out. Similarly, in Lee v Wiseman in 1992, the court held that a high school violated the establishment clause with its involvement in prayers at high school graduations. The school had decided that an invocation and a benediction should be given, chosen the religious participant to give the invocation and offered guidelines directing the content of the prayers.

Sara: 12:02

The court's opinion stressed the heightened concerns with the subtle coercive pressure in the elementary and secondary public schools.

Sara: 12:09

Under the circumstances, the court said that the dissenter of high school age would have a reasonable perception that she is being forced by the state to pray in a manner her conscience will not allow.

Sara: 12:21

Another example is in Santa Fe Independent School District v Doe in 2000. The court again held that a school policy permitting student-led prayer at football games created impermissible coercion, under the supervision of school faculty and pursuant to a school policy that explicitly and implicitly encourages public prayer, nonetheless had the improper effect of coercing those present to participate in an act of religious worship. So, all this to say, the Supreme Court has pretty regularly upheld that prayer in school, when led or facilitated by the school, violates the Establishment Clause of the First Amendment because, basically, students can feel coerced into participating, which honestly makes sense. Teachers and faculty are in charge and students are taught to listen to them. This all tracks to us, but one thing to note here is that a student on their own praying is not what these court cases are about. If a student wants to bow their head and pray at their desk or whatever, that is their right to do so.

Ashley: 13:32

So, moving on from school-specific examples, the Supreme Court has reached different conclusions with respect to policies involving adults. For example, in Lee, which we mentioned above, the Supreme Court distinguished a prior case that rejected an establishment clause challenged to prayers at state legislative sessions, noting the obvious differences between a session where adults are free to enter and leave and a graduation ceremony, the one school event most important for the student to attend. Also, in a case where parents chose whether or not to allow their students to attend the meetings of a private religious club, the Supreme Court held that the school would not create impermissible coercion merely by allowing the meetings to occur on school premises after school hours, aka your religion club. That is fully optional, is not a violation of the establishment clause.

Sara: 14:09

Now, lastly, here we're going to go back and discuss Kennedy v Remerton School District from 2022, which is, if you remember we said, ultimately stated that the Lemon Test was dead.

Sara: 14:21

In Kennedy, the court considered whether a school would have violated the establishment clause by allowing a football coach to pray at the 50-yard line immediately after football games. The school argued that the coach impermissibly coerced students to join his prayers. Noting that the coach had previously led students in prayer before games and conducted overtly religious inspirational talks after games, and some students felt pressured to participate in the earlier prayers, the court concluded those arguments were not relevant because the school's disciplinary action against the coach focused on later instances, when the coach did not seek to direct any prayers to students. In comparison to Santa Fe, the court concluded that the coach's prayers were not publicly broadcasted or recited to a captive audience and students were not expected to participate. People who saw or heard his prayer on the 50-yard line could be offended, but not coerced, according to the court. The court further said that the school could not require teachers to avoid any visible religious expression because that would give preference to secular activity that would violate their to secular activity that would violate their right to freedom of religion.

Ashley: 15:23

More broadly, kennedy said that in the future courts should evaluate establishment clause challenges by reference to historical practices and understandings. The Supreme Court acknowledged that while coercion was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment. The justices have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause. The court did not expressly resolve those open disputes, ruling instead that in Kennedy the coach's private religious exercise did not come close to crossing any line one might imagine separating protected private expression from government coercion.

Sara: 16:00

So where does that leave us today? Well, kennedy just happened in 2022. So the Lemon Test is dead and the court said in that case that, moving forward, the Establishment Clause must be interpreted by reference to historical practices and understandings. The analysis in Kennedy referred to the court's prior cases on coercion, suggesting that the coercion test will also provide an appropriate mode of analysis for future cases. So, in summary, the coercion test is what the courts should use. Going forward folks, at least for now.

Ashley: 16:31

We did it. We did it.

Sara: 16:34

We got all the way through the freedom of religion.

Ashley: 16:37

Yeah, and we said the word coercion 80 000 times.

Ashley: 16:43

okay so let's, do yes, let's do a quick recap. All that stuff we just talked through basically says the religion clause is made up of two clauses the establishment and the free exercise clause. The establishment clause prohibits the government from establishing an official religion or taking actions that favor one religion over another or over a non-religion, and the free exercise clause prevents the government from prohibiting the free exercise of religion. So I sort of think of them as the establishment clause stops the government from telling you what to believe in in places where they hold power public schools, government buildings etc. And the free exercise clause makes it so you can practice your religion however you see fit, as long as it does not impede on others' rights. Aka you can pray in school or in public to whichever God you believe in, or if you don't believe in any, that's protected too. So there it is, the religion clause of the First Amendment, only one out of the five freedoms the First Amendment gives us.

Sara: 17:37

And we're going through the rest of them today, right?

Ashley: 17:39

Yeah, so don't worry. Even though we didn't cover them today, guess what's coming in the future? More you got it, additional episodes are coming for our other freedoms the First Amendment protects, so I'm sure everyone's just as excited as we are about that.

Sara: 17:52

Thanks for tuning in this week and if you learned something today, share this episode with with a friend who you think would enjoy it. We'll catch y'all next time. Thanks for joining us for today's episode. We really appreciate the support.

Ashley: 18:09

We would also really appreciate it if you hit the follow button and share this episode with anyone you think would enjoy it.

Sara: 18:15

And we'd like to thank Kevin Tanner, who edited this episode. If you're interested in learning more about him and his services, his website and Instagram are in the show notes. With that, we'll see you next week. Or the right of the people peacefully to assemble and to petition the government for a redress, redress, red dress.

Ashley: 18:48

I think it's. I would have read it and petitioned the government for a redress Redress, okay, but I don't know. I feel like you should Google it Also. Don't kill me, but it's not peacefully.

Sara: 19:03

It's peaceably.

Ashley: 19:04

I know it's a weird old timey talk what if we made a really fun and easy to remember with, like making it what? Sorry, let me start. What if I made it? Why I'm just trying to talk like I'm not even reading the paper right now?

Ashley: 19:23

I couldn't tell because I was like wait, yeah, okay it was not until later, when court rulings made it applicable to the states by incorporation, through the 14th amendment, that it was so close. It was not until later, when court rulings made it applicable to the states by motherfucker okay, uh, what does that? Mean. It means. You just read the. It means to compel to, and do you mean? Did you say what does it mean?

Sara: 19:55

I did, and I understand that that sounded really silly. You just read the definition To compel to an act or choice or to achieve by force or threat, got it? We'll never forget that, ever again.

Ashley: 20:11

Someone will have to coerce me into using this word ever again. Yeah, coerce it. Okay, I don't know why the dots are jesus christ.

Sara: 20:25

Honestly, when you read it, I was just like I don't really know why I did that the court's opinion stressed the heightened concerns with subtle core core I'm sorry, I'm trying not to laugh at you the analysis in Kennedy referred to the court's prior cases on coercion, suggesting that the corrosion test will be damn you're so close. I'm doing it over here. You never have to say this word again. After this sentence, I literally cannot be more thrilled. Could not be Okay. So, in summary, the core. Damn it, I didn't see it there.