Freedom of Religion and the Establishment Clause of the Constitution

Authored By: Carl Vinson Institute
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Freedom of Religion and the Establishment Clause of the United States Constitution

This document tells you the following:

  • What is the freedom of religion?
  • What does the free exercise of religious beliefs mean?
  • What does it mean to say that there is no establishment of a state religion?


Another First Amendment freedom you have probably heard about is freedom of religion. It requires the federal government to be absolutely neutral in matters of religion. First, no law can limit an individual's right to worship according to his or her particular religious belief. Second, no law can establish or advance any religion.

In the Georgia Constitution, there are several paragraphs regarding freedom of religion:

Freedom of conscience. Each person has the natural and inalienable right to worship God, each according to the dictates of that person's own conscience; and no human authority should, in any case, control or interfere with such right of conscience. [Article 1, section 1, paragraph 3]

Religious opinions; freedom of religion. No inhabitant of this state shall be molested in person or property or be prohibited from holding any public office or trust on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state. [Article 1, section 1, paragraph 4]

Separation of church and state. No money shall ever be taken from the public treas-ury, directly or indirectly, in aid of any church, sect, cult, or religious denomination of any sectarian institution. [Article 1, section 2, paragraph 7]

Free Exercise of Religious Beliefs

In the free exercise of religion, there are two elements. One is the freedom to believe. The other is the freedom to act in accordance with one's religious beliefs. The freedom to believe is absolute. That is, the government cannot take any action to force an individual to believe or not to believe in a par-ticular religious principle. In contrast, the freedom to act in accordance with one's religious beliefs is not absolute. It may be regulated by the government to a limited extent. However, a government cannot enact a law that discriminates against a particular religion.

In a landmark decision for free expression, the U.S. Supreme Court upheld the rights of the parents and children to exercise their religious beliefs. West Virginia v. Barnette, 63 S.Ct. 1178 (1943).
In subsequent decisions, the court has held that a government may not require a public employee to swear to a belief in God. Nor can a government refuse unemployment compensation to a man fired for refusing to work on Sunday because of his religious beliefs.

More difficult cases arise when an individual refuses medical treatment because of a religious belief. Generally, when the situation is life threatening, courts have ruled in favor of the well-being of children over the religious beliefs of the parents.

The classic example of religious activity prohibited by the government is polygamy. Polygamy occurs when a person has more than one spouse at one time. The Mormon Church once held the belief that men should have several wives (the church has since prohibited polygamy). Polygamy is now a crime in all states. The U.S. Supreme Court has held that polygamy is a punishable offense.

No Establishment of State Religion

The other aspect of freedom of religion is that the government may not take any action that establishes or promotes any religion. This "establishment clause" is the fundamental principle of separation of church and state.

Many settlers of our country felt very strongly about this principle. They came from countries where there was a state religion. Many were persecuted in their native countries for practicing other religions.

Today, government actions are continually being challenged on the grounds that they violate this separation. Government assistance to church schools in the form of busing or tuition credits has been objected to on these grounds, as has prayer in schools or in other public places.

Of course, some government and church interaction must occur. Churches need government services like fire and police protection.

However, in keeping with the principle of separation of church and state, the courts have said that any law or government activity must meet three requirements:

1. It must have a nonreligious purpose;

2. Its main effect must not be to repress or advance religion; and

3. It must not result in too much entangling (or involvement) of government and religion.

In its 1994 decision, the Supreme Court ruled against the establishment of a specific school district to serve the disabled students of one particular religious sect.
Board of Education v. Grumet, 114 S.Ct. 2481 (1994).

The Court held that this action equates to an unconstitutional establishment of religion. It would be giving the children of one religious sect special treatment for their religion. However, establishing such school districts for all students-regardless of their religion-might have been found constitutional.

The court also said that it is one thing to coerce students into religious activity: that would be supporting establishment of religion. Permitting it on a nondiscriminatory basis, however, does not. Bd. of Educ. of Westside Com. Sch. V. Mergens, 110 S.Ct. 2356 (1990).

The 11th Circuit Court of Appeals found that pre-game invocations had a religious purpose. Jager v. Douglas County School District, 862 F.2d 824 (11th Cir. 1989). In the predominantly Protestant community, the court said a main effect would be to publicly advance Protestant Christianity. The court ruled that the invocations violated the establishment clause.

A Supreme Court decision in 2000 agreed with the 11th Circuit Court of Appeals. It found that invocations prior to football games, even if they were initiated and led by students, violated the Constitution's establishment clause.Lee v. Weisman, 112 S. Ct. 2649 (1992).

* Excerpted from An Introduction to Law in Georgia, Fourth Edition, published by the Carl Vinson Institute of Government, 1998 (updated 2004). The Vinson Institute is not responsible for errors in the online text. Content is for information only; in no way should the information in the book be considered legal advice to anyone on any matter for which there are legal implications. Any such matter should be specifically addressed with an attorney. The book is available for purchase ator by contacting the Publications Program, Carl Vinson Institute of Government, University of Georgia, 201 M. Milledge Avenue, Athens, GA 30602; telephone 706-542-6377; fax 706-542-6239.

Last Review and Update: Jul 30, 2004