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.
Amendment I Freedom of Religion, Speech, Press, Assembly, and Petition
Passed by Congress September 25, 1789. Ratified December 15, 1791. The first 10 amendments form the Bill of Rights
The Establishment ClauseBy Marci A. Hamilton and Michael McConnell
America’s early settlers came from a variety of religious backgrounds: Puritans predominated in New England; Anglicans predominated in the South; Quakers and Lutherans flocked especially to Pennsylvania; Roman Catholics settled mostly in Maryland; Presbyterians were most numerous in the middle colonies; and there were Jewish congregations in five cities.
During colonial times, the Church of England was established by law in all of the southern colonies, while localized Puritan (or “Congregationalist”) establishments held sway in most New England states. In those colonies, clergy were appointed and disciplined by colonial authorities and colonists were required to pay religious taxes and (often) to attend church services. Dissenters were often punished for preaching without a license or refusing to pay taxes to a church they disagreed with. Delaware, New Jersey, Pennsylvania, Rhode Island, and much of New York had no established church.
After Independence, there was widespread agreement that there should be no nationally established church. The Establishment Clause of the First Amendment, principally authored by James Madison, reflects this consensus. The language of the Establishment Clause itself applies only to the federal government (“Congress shall pass no law respecting an establishment of religion”). All states disestablished religion by 1833, and in the 1940s the Supreme Court held that disestablishment applies to state governments through the Fourteenth Amendment.
Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organization’s selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification. Beyond that, the meaning of the Amendment is often hotly contested, and Establishment cases in the Supreme Court often lead to 5-4 splits.
The Lemon Test
In 1971, the Supreme Court surveyed its previous Establishment Clause cases and identified three factors that identify whether or not a government practice violates the Establishment Clause: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive entanglement with religion.” Lemon v. Kurtzman (1971). In the years since Lemon, the “test” has been much criticized and the Court often decides Establishment Clause cases without reference to it. Yet the Justices have not overruled the Lemon test, meaning the lower courts remain obliged to use it. In some specific areas of controversy, however, the Court has adopted specific, more targeted “tests” to replace Lemon.
The vast majority of Establishment Clause cases have fallen in four areas: monetary aid to religious education or other social welfare activities conducted by religious institutions; government-sponsored prayer; accommodation of religious dissenters from generally-applicable laws; and government owned or sponsored religious symbols.
Aid to religious institutions
Scholars have long debated between two opposing interpretations of the Establishment Clause as it applies to government funding: (1) that the government must be neutral between religious and non-religious institutions that provide education or other social services; or (2) that no taxpayer funds should be given to religious institutions if they might be used to communicate religious doctrine. Initially, the Court tended toward the first interpretation, in the 1970s and 1980s the Court shifted to the second interpretation, and more recently the Court has decisively moved back to the first idea.
After two early decisions upholding state statutes allowing students who attend private religious schools to receive transportation, Everson v. Board of Education (1947), and textbook subsidies available to all elementary and secondary students, Board of Education v. Allen (1968), the Court attempted for about fifteen years to draw increasingly sharp lines against the use of tax-funded assistance for the religious aspects of education. At one point the Court even forbade public school teaching specialists from going on the premises of religious schools to provide remedial assistance. Aguilar v. Felton (1985). More recently, the Court has upheld programs that provide aid to educational or social programs on a neutral basis “only as a result of the genuine and independent choices of private individuals.” Zelman v. Simmons-Harris (2002). Indeed, the Court has held that it is unconstitutional under free speech or free exercise principles to exclude otherwise eligible recipients from government assistance solely because their activity is religious in nature. Rosenberger v. University of Virginia (1995).
The Court’s best-known Establishment Clause decisions held it unconstitutional for public schools to lead schoolchildren in prayer or Bible reading, even on an ostensibly voluntary basis. Engel v. Vitale (1962); Abington School District v. Schempp (1963). Although these decisions were highly controversial among the public (less so among scholars), the Court has not backed down. Instead it has extended the prohibition to prayers at graduation ceremonies, Lee v. Weisman (1992), and football games, Santa Fe Independent School District v. Doe (2000).
In less coercive settings involving adults, the Court has generally allowed government-sponsored prayer. In Marsh v. Chambers (1983), the Court upheld legislative prayer, specifically because it was steeped in history. More recently, the Court approved an opening prayer or statement at town council meetings, where the Town represented that it would accept any prayers of any faith. Town of Greece v. Galloway (2014).
Accommodation of religion
Hundreds of federal, state, and local laws exempt or accommodate religious believers or institutions from otherwise neutral, generally-applicable laws for whom compliance would conflict with religiously motivated conduct. Examples include military draft exemptions, kosher or halal meals for prisoners, medical neglect exemptions for parents who do not believe in medical treatment for their ill children, exemptions from some anti-discrimination laws for religious entities, military headgear requirements, and exemptions for the sacramental use of certain drugs. The Supreme Court has addressed very few of these exemptions. While the Court held that a state sales tax exemption limited to religious publications was unconstitutional in Texas Monthly, Inc. v. Bullock (1989), it unanimously upheld the exemption of religious organizations from prohibitions on employment discrimination for ministers. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).
Two federal laws, the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA), provide broad-based statutory accommodations for religious practice when it conflicts with federal and certain state and local laws. A unanimous Court upheld this approach for prisoners against a claim that granting religious accommodations violates the Establishment Clause, reasoning that RLUIPA “alleviates exceptional government-created burdens on private religious exercise” in prisons. Cutter v. Wilkinson (2005).
The Court in Cutter left open the question whether such a regime applied to land use is constitutional and it also left open the possibility that even some applications in prisons may be unconstitutional if they are not even-handed among religions or impose too extreme a burden on non-believers. The Court’s recent 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. (2014), holding that RFRA exempts for-profit employers from paying for insurance coverage of contraceptive drugs that they believe are abortion-inducing, has reinvigorated the debate over such laws.
Government-sponsored religious symbols
The cases involving governmental displays of religious symbols—such as Ten Commandment displays in public school classrooms, courthouses, or public parks; nativity scenes in courthouses and shopping districts; or crosses on public land—have generated much debate. The most prominent approach in more recent cases is called the “endorsement test”; it asks whether a reasonable observer acquainted with the full context would regard the display as the government endorsing religion and, therefore, sending a message of disenfranchisement to other believers and non-believers.
The Court’s decisions in this arena are often closely divided. They also illustrate that the Court has declined to take “a rigid, absolutist view” of the separation of church and state. In Lynch v. Donnelly (1984), the Court allowed display of a nativity scene surrounded by other holiday decorations in the heart of a shopping district, stating that it “engenders a friendly community spirit of good will in keeping with the season.” But in County of Allegheny v. American Civil Liberties Union (1989), a different majority of Justices held that the display of a nativity scene by itself at the top of the grand stairway in a courthouse violated the Establishment Clause because it was “indisputably religious—indeed sectarian.” In McCreary County v. American Civil Liberties Union (2005), the Court held that a prominent display of the Ten Commandments at the county courthouse, which was preceded by an official’s description of the Ten Commandments as the “embodiment of ethics in Christ,” was a religious display that was unconstitutional. The same day, it upheld a Ten Commandments monument, which was donated by a secular organization dedicated to reducing juvenile delinquency and surrounded by other monuments on the spacious statehouse grounds. Van Orden v. Perry (2005). Only one Justice was in the majority in both cases.
More broadly, the Establishment Clause provides a legal framework for resolving disagreements about the public role of religion in our increasingly pluralistic republic.
Matters of Debate
Marci A. Hamilton Senior Fellow, Robert A. Fox Leadership Program, University of Pennsylvania, and Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
The Establishment Clause: A Check on Religious Tyranny by Marci A. Hamilton
An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state.Full Text
Michael McConnell Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School, and Senior Fellow at the Hoover Institution
The Establishment Clause: Co-Guarantor of Religious Freedom by Michael McConnell
The Establishment Clause of the First Amendment – “Congress shall pass no law respecting an establishment of religion” – is one of the most misunderstood in the Constitution.Full Text
The Establishment Clause: A Check on Religious TyrannyBy Marci A. Hamilton
An accurate recounting of history is necessary to appreciate the need for disestablishment and a separation between church and state. The religiosity of the generation that framed the Constitution and the Bill of Rights (of which the First Amendment is the first as a result of historical accident, not the preference for religious liberty over any other right) has been overstated. In reality, many of the Framers and the most influential men of that generation rarely attended church, were often Deist rather than Christian, and had a healthy understanding of the potential for religious tyranny. This latter concern is to be expected as European history was awash with executions of religious heretics: Protestant, Catholic, Jewish, and Muslim. Three of the most influential men in the Framing era provide valuable insights into the mindset at the time: Benjamin Franklin, James Madison, and John Adams. Franklin saw a pattern:
If we look back into history for the character of the present sects in Christianity, we shall find few that have not in their turns been persecutors, and complainers of persecution. The primitive Christians thought persecution extremely wrong in the Pagans, but practiced it on one another. The first Protestants of the Church of England blamed persecution in the Romish Church, but practiced it upon the Puritans. These found it wrong in the Bishops, but fell into the same practice themselves both here [England] and in New England.
Benjamin Franklin, Letter to the London Packet (June 3, 1772).
The father of the Constitution and primary drafter of the First Amendment, James Madison, in his most important document on the topic, Memorial and Remonstrance against Religious Assessments (1785), stated:
During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. . . . What influence, in fact, have ecclesiastical establishments had on society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people.
Two years later, John Adams described the states as having been derived from reason, not religious belief:
It will never be pretended that any persons employed in that service had any interviews with the gods, or were in any degree under the influence of Heaven, any more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. . . .Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind.
The Works of John Adams, Second President of the United States, Vol. 4, 292-93 (Charles C. Little & James Brown, eds., 1851).
Massachusetts and Pennsylvania are examples of early discord. In Massachusetts, the Congregationalist establishment enforced taxation on all believers and expelled or even put to death dissenters. Baptist clergy became the first in the United States to advocate for a separation of church and state and an absolute right to believe what one chooses. Baptist pastor John Leland was an eloquent and forceful proponent of the freedom of conscience and the separation of church and state. For him, America was not a “Christian nation,” but rather should recognize the equality of all believers, whether “Jews, Turks, Pagans [or] Christians.” “Government should protect every man in thinking and speaking freely, and see that one does not abuse another.” He proposed an amendment to the Massachusetts Constitution in 1794 because of the “evils . . . occasioned in the world by religious establishments, and to keep up the proper distinction between religion and politics.”
Pennsylvania, dubbed the “Holy Experiment” by founder William Penn, was politically controlled by Quakers, who advocated tolerance of all believers and the mutual co-existence of differing faiths, but who made their Christianity a prerequisite for public office, only permitted Christians to vote, and forbade work on the Sabbath. Even so, the Quakers set in motion a principle that became a mainstay in religious liberty jurisprudence: the government may not coerce citizens to believe what they are unwilling to believe. If one looks carefully into the history of the United States’ religious experiment, one also uncovers a widely-shared view that too much liberty, or “licentiousness,” is as bad as no liberty. According to historian John Philip Reid, those in the eighteenth century “had as great a duty to oppose licentiousness as to defend liberty.”
This essay is part of a discussion about the Establishment Clause with Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, Senior Fellow at the Hoover Institution. Read the full discussion here.
Establishment Clause Doctrine
The Establishment Clause has yielded a wide array of doctrines (legal theories articulated by courts), each of which is largely distinct from the others, some of which are described in Professor McConnell’s and my joint contribution on the Establishment Clause. The reason for this proliferation of distinct doctrines is that the Establishment Clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy. The further complication is that the exercise of power is fluid, which leads both state and church to alter their positions to gain power either one over the other or as a union in opposition to the general public or particular minorities.
The “separation of church and state” does not mean that there is an impermeable wall between the two, but rather that the Framers fundamentally understood that the union of power between church and state would lead inevitably to tyranny. The established churches of Europe were well-known to the Founding era and the Framers and undoubtedly contributed to James Madison’s inclusion of the Establishment Clause in the First Amendment, and its ratification. The following are some of the most important principles.
The Government May Not Delegate Governing Authority to Religious Entities
The Court has been sensitive to incipient establishments of religion. A Massachusetts law delegated authority to churches and schools to determine who could receive a liquor license within 500 feet of their buildings. The Supreme Court struck down the law, because it delegated to churches zoning power, which belongs to state and local government, not private entities. Larkin v. Grendel’s Den, Inc. (1982). According to the Court: The law “substitutes the unilateral and absolute power of a church for the reasoned decision making of a public legislative body . . . on issues with significant economic and political implications. The challenged statute thus enmeshes churches in the processes of government and creates the danger of [p]olitical fragmentation and divisiveness along religious lines.”
In another scenario, the Supreme Court rejected an attempt to define political boundaries solely according to religion. In Board of Education of Kiryas Joel Village School District v. Grumet (1994), the state of New York designated the neighborhood boundaries of Satmar Hasidim Orthodox Jews in Kiryas Joel Village as a public school district to itself. Thus, the boundary was determined solely by religious identity, in part because the community did not want their children to be exposed to children outside the faith. The Court invalidated the school district because political boundaries identified solely by reference to religion violate the Establishment Clause.
There Is No Such Thing as “Church Autonomy” Although There Is a Doctrine that Forbids the Courts from Determining What Religious Organizations Believe
In recent years, religious litigants have asserted a right to “church autonomy”—that churches should not be subject to governmental regulation—in a wide variety of cases, and in particular in cases involving the sexual abuse of children by clergy. The phrase, however, is misleading. The Supreme Court has never interpreted the First Amendment to confer on religious organizations a right to autonomy from the law. In fact, in the case in which they have most recently demanded such a right, arguing religious ministers should be exempt from laws prohibiting employment discrimination, the Court majority did not embrace the theory, not even using the term once. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. (2012).
The courts are forbidden, however, from getting involved in determining what a religious organization believes, how it organizes itself internally, or who it chooses to be “ministers” of the faith. Therefore, if the dispute brought to a court can only be resolved by a judge or jury settling an intra-church, ecclesiastical dispute, the dispute is beyond judicial consideration. This is a corollary to the absolute right to believe what one chooses; it is not a right to be above the laws that apply to everyone else. There is extraordinary slippage in legal briefs in numerous cases where the entity is arguing for “autonomy,” but what they really mean is freedom from the law, per se. For the Court and basic common sense, these are arguments for placing religion above the law, and in violation of the Establishment Clause. They are also fundamentally at odds with the common sense of the Framing generation that understood so well the evils of religious tyranny.Marci A. Hamilton Senior Fellow, Robert A. Fox Leadership Program, University of Pennsylvania, and Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law
The Establishment Clause: Co-Guarantor of Religious FreedomBy Michael McConnell
The Establishment Clause of the First Amendment – “Congress shall pass no law respecting an establishment of religion” – is one of the most misunderstood in the Constitution. Unlike most of the Constitution, it refers to a legal arrangement, the “establishment of religion,” which has not existed in the United States in almost two centuries. We understand what “freedom of speech” is, we know what “private property” is, and we know what “searches and seizures” are, but most of us have no familiarity with what an “establishment of religion” would be.
The “Church by Law Established” in Britain was a church under control of the government. The monarch was (and is) the supreme head of the established church and chooses its leadership; Parliament enacted its Articles of Faith; the state composed or directed the content of its prayers and liturgy; clergy had to take an oath of allegiance to the king or queen; and not surprisingly, the established church was used to inculcate the idea that British subjects had a religious as well as a civic obligation to obey royal authority. The established church was a bit like a government-controlled press: it was a means by which the government could mold public opinion.
British subjects (including Americans in eight of the colonies) were legally required to attend and financially support the established church, ministers were licensed or selected by the government, and the content of church services was partially dictated by the state.
The establishment of religion was bad for liberty and it was bad for religion, too. It was opposed by a coalition of the most fervently evangelical religious sects in America (especially the Baptists), who thought the hand of government was poisonous to genuine religion, joined by the enlightenment and often deist elite (like Thomas Jefferson and Benjamin Franklin), who thought church and state should be separate, and by the leadership of minority religions, who worried that government involvement would disadvantage them. Accordingly, there was virtually no opposition to abolishing establishment of religion at the national level. Establishments survived for a while in a few states, but the last state (Massachusetts) ended its establishment in 1833.
This essay is part of a discussion about the Establishment Clause with Marci A. Hamilton, Senior Fellow, Robert A. Fox Leadership Program, University of Pennsylvania, and Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law. Read the full discussion here.
The abolition of establishment of religion entails a number of obvious and uncontroversial elements. Individuals may not be required to contribute to, attend, or participate in religious activities. These must be voluntary. The government may not control the doctrine, liturgy, or personnel of religious organizations. These must be free of state control. Other issues are harder.
For a few decades between the late 1960s and the early 1990s, the Supreme Court attempted to forbid states to provide tax subsidies to schools that teach religious doctrine along with ordinary secular subjects. Most of these schools were Roman Catholic. This effort was largely based on a misinterpretation of history, egged on by residual anti-Catholicism. The Justices said that neutral aid to schools is just like a 1785 effort to force Virginians to contribute to the church of their choice. The analogy, however, made little sense: there is all the difference in the world between funding churches because they inculcate religion and funding schools because they provide education. In fact, the history of the early republic shows that states (and later the federal government, during Reconstruction) funded education by subsidizing all schools on a nondiscriminatory basis, and no one ever suggested this violated the non-establishment principle. By 2002, in Zelman v. Simmons-Harris, the Supreme Court returned to this original idea, allowing the government to fund schools on a neutral basis so long as the choice of religious schools was left to voluntary choice. Not only was ruling this true to history, it also best serves the ideal of religious freedom, making it possible for families to choose the type of education they want for their children.
It is sometimes suggested that laws making special accommodations for people whose religious beliefs are at odds with government policy violate the Establishment Clause, on the theory that these accommodations “privilege” or “advance” religion. This is a recently-minted idea, and not a sensible one. In all cases of accommodation, the religion involved is dissenting from prevailing policy, which means, by definition, that the religion is not dominating society. The idea that making exceptions for the benefit of people whose beliefs conflict with the majority somehow “establishes” religion is a plain distortion of the words. And the Supreme Court has unanimously held that religious accommodations are permissible so long as they lift a governmental obstacle to the exercise of religion, take account of costs to others, and do not favor one faith over another. Nonetheless, when religions take unpopular stances on hot-button issues (for example, regarding abortion-inducing contraceptives or same-sex marriage), critics are quick to assert that it violates the Constitution to accommodate their differences, no matter how little support that position has in history or Supreme Court precedent.
The fundamental error is to think that the Establishment Clause is designed to reduce the role of religion in American life. A better understanding is captured in this statement by Justice William O. Douglas of the Supreme Court: this country “sponsor[s] an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” Zorach v. Clauson (1952).Michael McConnell Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School, and Senior Fellow at the Hoover Institution
The Free Exercise ClauseBy Frederick Gedicks and Michael McConnell
Many settlers from Europe braved the hardships of immigration to the American colonies to escape religious persecution in their home countries and to secure the freedom to worship according to their own conscience and conviction. Although the colonists often understood freedom of religion more narrowly than we do today, support for protection of some conception of religious freedom was broad and deep. By the time of Independence and the construction of a new Constitution, freedom of religion was among the most widely recognized “inalienable rights,” protected in some fashion by state bills of rights and judicial decisions. James Madison, for example, the principal author of the First Amendment, eloquently 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.”
Although the original Constitution contained only a prohibition of religious tests for federal office (Article VI, Clause 3), the Free Exercise Clause was added as part of the First Amendment in 1791. In drafting the Clause, Congress considered several formulations, but ultimately settled on protecting the “free exercise of religion.” This phrase makes plain the protection of actions as well as beliefs, but only those in some way connected to religion.
From the beginning, courts in the United States have struggled to find a balance between the religious liberty of believers, who often claim the right to be excused or “exempted” from laws that interfere with their religious practices, and the interests of society reflected in those very laws. Early state court decisions went both ways on this central question.
The Supreme Court first addressed the question in a series of cases involving nineteenth-century laws aimed at suppressing the practice of polygamy by members of the Church of Jesus Christ of Latter-day Saints (LDS), also known as Mormons. The Court unanimously rejected free exercise challenges to these laws, holding that the Free Exercise Clause protects beliefs but not conduct. “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” Reynolds v. United States (1878). What followed was perhaps the most extreme government assault on religious freedom in American history. Hundreds of church leaders were jailed, rank-and-file Mormons were deprived of their right to vote, and Congress dissolved the LDS Church and expropriated most of its property, until the church finally agreed to abandon polygamy.
The belief-action distinction ignored the Free Exercise Clause’s obvious protection of religious practice, but spoke to the concern that allowing believers to disobey laws that bind everyone else would undermine the value of a government of laws applied to all. Doing so, Reynolds warned, “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”
Reynolds influenced the meaning of the Free Exercise Clause well into the twentieth century. In 1940, for example, the Court extended the Clause—which by its terms constrains only the federal government—to limit state laws and other state actions that burden religious exercise. Cantwell v. Connecticut (1940). Though it recognized that governments may not “unduly infringe” religious exercise, the Court reiterated that “[c]onduct remains subject to regulation for the protection of society,” citing Reynolds as authority. Similarly, the Court held in 1961 that the Free Exercise Clause did not exempt an orthodox Jewish merchant from Sunday closing laws, again citing Reynolds.
In the 1960s and early 1970s, the Court shifted, strengthening protection for religious conduct by construing the Free Exercise Clause to protect a right of religious believers to exemption from generally applicable laws which burden religious exercise. The Court held that the government may not enforce even a religiously-neutral law that applies generally to all or most of society unless the public interest in enforcement is “compelling.” Wisconsin v. Yoder (1972). Yoder thus held that Amish families could not be punished for refusing to send their children to school beyond the age of 14.
Although the language of this “compelling-interest” test suggested powerful protections for religion, these were never fully realized. The cases in which the Supreme Court denied exemptions outnumbered those in which it granted them. Aside from Yoder, the Court exempted believers from “availability for work” requirements, which denied unemployment benefits to workers terminated for prioritizing religious practices over job requirements. But it denied exemptions to believers and religious organizations which found their religious practices burdened by conditions for federal tax exemption, military uniform regulations, federal minimum wage laws, state prison regulations, state sales taxes, federal administration of public lands, and mandatory taxation and other requirements of the Social Security system. In all of these cases the Court found, often controversially, either that the government’s interest in enforcement was compelling, or that the law in question did not constitute a legally-recognizable burden on religious practice.
In 1990, the Supreme Court changed course yet again, holding that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Employment Division v. Smith (1990). Though it did not return to the belief-action distinction, the Court echoed Reynolds’ concern that religious exemptions permit a person, “by virtue of his beliefs, to become a law unto himself,” contradicting “both constitutional tradition and common sense.” Any exceptions to religiously-neutral and generally-applicable laws, therefore, must come from the “political process.” Smith went on to hold that the Free Exercise Clause does not protect the sacramental use of peyote, a hallucinogenic drug, by members of the Native American Church.
Smith proved to be controversial. In 1993, overwhelming majorities in Congress voted to reinstate the pre-Smith compelling-interest test by statute with the Religious Freedom Restoration Act (RFRA). RFRA authorizes courts to exempt a person from any law that imposes a substantial burden on sincere religious beliefs or actions, unless the government can show that the law is the “least restrictive means” of furthering a “compelling governmental interest.” Almost half of the states have passed similar laws—“state RFRAs”—applicable to their own laws. In 1997 the Supreme Court held that Congress had constitutional authority only to apply RFRA to federal laws, and not to state or local laws. Congress then enacted a narrower law, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies the compelling-interest test to state laws affecting prisoners and land use. RFRA and RLUIPA have afforded exemptions in a wide range of federal and state contexts—from kosher and halal diets for prisoners, to relief from zoning and landmark regulations on churches and ministries, to exemptions from jury service.
Although some exemption claims brought under these religious freedom statutes have been relatively uncontroversial—the Supreme Court unanimously protected the right of a tiny religious sect to use a hallucinogenic drug prohibited by federal law and the right of a Muslim prisoner to wear a half-inch beard prohibited by state prison rules—some touch on highly contested moral questions. For example, the Court by a 5-4 vote excused a commercial family-owned corporation from complying with the “contraception mandate,” a regulation which required the corporation’s health insurance plan to cover what its owners believe are abortion-inducing drugs. Burwell v. Hobby Lobby Stores Inc. (2014). In the wake of Hobby Lobby and the Court’s subsequent determination that states may not deny gays and lesbians the right to civil marriage, state RFRAs have become a flashpoint in conflicts over whether commercial vendors with religious objections may refuse their products and services to same-sex weddings.
Besides RFRA and other exemption statutes, the Free Exercise Clause itself, even after Smith, continues to provide protection for believers against burdens on religious exercise from laws that target religious practices, or that disadvantage religion in discretionary, case-by-case decision making. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993), for example, the Court unanimously struck down a local ordinance against the “unnecessary” killing of animals in a “ritual or ceremony”—a law that was drawn to apply only to a small and unpopular religious sect whose worship includes animal sacrifice.
The Court recently recognized that the Free Exercise Clause (along with the Establishment Clause) required a religious exemption from a neutral and general federal antidiscrimination law that interfered with a church’s freedom to select its own ministers. The Court distinguished Smith on the ground that it “involved government regulation of only outward physical acts,” while this case “concerns government interference with an internal church decision that affects the faith and mission of the church itself.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (2012).
It remains unclear whether Lukumi and Hosanna-Tabor are narrow exceptions to Smith’s general presumption against religious exemptions, or foreshadow yet another shift towards a more exemption-friendly free exercise doctrine.
Matters of Debate
Frederick Gedicks Guy Anderson Chair and Professor of Law, Brigham Young University Law
Religious Liberty Is Equal Liberty by Frederick Gedicks
At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution.Full Text
Michael McConnell Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School, and Senior Fellow at the Hoover Institution
Free Exercise: A Vital Protection for Diversity and Freedom by Michael McConnell
One of this nation’s deepest commitments is to the full, equal, and free exercise of religion – a right that protects not only believers, but unbelievers as well.Full Text
Religious Liberty Is Equal LibertyBy Frederick Gedicks
At the time the United States adopted the First Amendment to the Constitution, other nations routinely imposed disabilities on religious minorities within their borders, depriving them of legal rights, making it difficult or impossible to practice their faith, and often enabling violent persecution. The Free Exercise Clause was thus an exceptional political achievement, imposing a constitutional norm of civic equality by prohibiting the federal government from interfering with all religious exercise—regardless of affiliation.
Only a few years before the First Amendment was ratified, James Madison wrote that all people naturally retain “equal title to the free exercise of Religion according to the dictates of conscience” without the government’s “subjecting some to peculiar burdens” or “granting to others peculiar exemptions.” A Memorial and Remonstrance against Religious Assessments (1785). As Madison suggested, at the time the Constitution and Bill of Rights were ratified, the guarantee of religious free exercise was understood to protect against government discrimination or abuse on the basis of religion, but not to require favorable government treatment of believers. In particular, there is little evidence that the Founders understood the Free Exercise Clause to mandate “religious exemptions” that would excuse believers from complying with neutral and general laws that constrain the rest of society.
The Supreme Court has historically left the question of religious exemptions to Congress and the state legislatures. The first judicially-ordered exemptions arose in the 1960s and early 1970s, when the Supreme Court held the Free Exercise Clause required religious exemptions for Amish families who objected to sending their children to high school, and for employees who were denied unemployment benefits when they lost their jobs for refusing to work on their Sabbath. This doctrine of judicially-ordered exemptions, however, was an historical aberration. In Employment Division v. Smith (1990), the Court considered a claim by members of a Native American religion who lost their jobs as drug counselors for using an illegal drug in a religious ritual. The Court abandoned its new doctrine of religious exemptions, ruling that the Free Exercise Clause did not grant believers a right to exemptions from religiously neutral, generally applicable laws, though legislatures were free to grant such exemptions if they wished. This relegation of exemptions to the political process in most circumstances returned the Free Exercise Clause to its historical baseline. Notwithstanding the narrow ministerial exception recognized in Hosanna-Tabor Evangelical Church & School v. EEOC (2012), the Court has repeatedly affirmed Smith and the century of precedent cited in that case, and has shown no inclination to overturn its basic principle that neutral and general laws should apply equally to all, regardless of religious belief or unbelief.
The growth of social welfare entitlements and religious diversity in the United States has underscored the wisdom of the Smith rule. Exempting believers from social welfare laws may give them a competitive advantage, and also may harm those whom the law was designed to protect or benefit.
For example, the Court refused to exempt an Amish employer from paying Social Security taxes for his employees, reasoning that doing so would “impose the employer’s religious faith on the employees” by reducing their social security benefits regardless of whether they shared their employer’s religious objection to government entitlement programs. United States v. Lee (1982). Similarly, the Court refused to exempt a religious employer from federal minimum wage laws, because doing so would give the employer an advantage over competitors and depress the wages of all employees in local labor markets. Tony & Susan Alamo Foundation v. Secretary of Labor (1985).
This essay is part of a discussion about the Free Exercise Clause with Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, Senior Fellow at the Hoover Institution.
The Court seems poised to adopt this “third-party burden” principle in decisions interpreting the 1993 Religious Freedom Restoration Act (RFRA) as well. Five Justices in Burwell v. Hobby Lobby Stores, Inc. (2014), expressly stated that RFRA exemptions imposing significant costs on others are not allowed. The majority opinion likewise acknowledged that courts must take “adequate account” of third-party burdens before ordering a RFRA exemption.
The growth of religious diversity makes a religious exemption regime doubly impractical. The vast range of religious beliefs and practices in the United States means that there is a potential religious objector to almost any law the government might enact. If religious objectors were presumptively entitled to exemption from any burdensome law, religious exemptions would threaten to swallow the rule of law, which presupposes its equal application to everyone. As the Court observed in Lee, a religiously diverse social welfare state cannot shield “every person . . . from all the burdens incident to exercising every aspect of the right to practice religious beliefs.”
Even under the equal-liberty regime contemplated by the Founders and restored by Smith, government remains subject to important constraints that protect religious liberty. “Religious gerrymanders,” or laws that single out particular religions for burdens not imposed on other religions or on comparable secular conduct, must satisfy strict scrutiny under the Free Exercise Clause. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993); Sherbert v. Verner (1963). Under RFRA and the related Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the federal government and often the state governments are prohibited from burdening religious exercise without adequate justification. Holt v. Hobbs (2015); Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (2005). And, like judicially-ordered exemptions, legislative exemptions that impose material costs on others in order to protect believers’ free exercise interests may be invalid under the Establishment Clause, which protects believers and unbelievers alike from bearing the burdens of practicing someone else’s religion. Estate of Thornton v. Caldor (1985).
If exemptions are to be afforded to those whose religious practices are burdened by neutral and general laws, they should generally not be granted by courts, but by the politically accountable branches of the federal and state governments. These branches are better situated to weigh and balance the competing interests of believers and others in a complex and religiously-diverse society.Frederick Gedicks Guy Anderson Chair and Professor of Law, Brigham Young University Law
Free Exercise: A Vital Protection for Diversity and FreedomBy Michael McConnell
One of this nation’s deepest commitments is to the full, equal, and free exercise of religion – a right that protects not only believers, but unbelievers as well. The government cannot use its authority to forbid Americans to conduct their lives in accordance with their religious beliefs or to require them to engage in actions contrary to religious conscience – even when the vast majority of their countrymen regard those beliefs as backward, mistaken, or even immoral.
Unfortunately, in the last few years – and especially since the Supreme Court’s decision requiring states to recognize same-sex marriage – this consensus in favor of tolerance has been slipping. All too often, we hear demands that religious people and religious institutions such as colleges or adoption agencies must join the state in recognizing same-sex marriages (or performing abortions or supplying contraceptives, or whatever the issues happen to be), or lose their right to operate.
That has not been the American way. When this country severed its ties with the British Empire, one thing that went with it was the established church. To an unprecedented degree, the young United States not only tolerated but actively welcomed people of all faiths. For example, despite his annoyance with the Quakers for their refusal to support the revolutionary war effort, Washington wrote to a Quaker Society to express his “wish and desire, that the laws may always be as extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” Letter to the Annual Meeting of Quakers (1789).
What would it mean to have a regime of free exercise of religion? No one knew; there had been no such thing before. It quickly became clear that it was not enough just to cease persecution or discrimination against religious minorities. Just two years after the ink was dry on the First Amendment, the leader of the Jewish community in Philadelphia went to court and asked, under authority of his state’s free exercise clause, to be excused from complying with a subpoena to appear in court on his day of sabbath. He did not ask that the state cease to do official business on Saturday, but he did ask the court to make an exception – an accommodation – that would enable him to be faithful to the Jewish law.
This would become the central interpretive question under the Free Exercise Clause: Does it give Americans whose religions conflict with government practices the right to ask for special accommodation, assuming an accommodation can be made without great harm to the public interest or the rights of others?
This essay is part of a discussion about the Free Exercise Clause with Frederick Gedicks, Guy Anderson Chair and Professor of Law, Brigham Young University Law.
In the early years, some religious claimants won and some lost. The Mormon Church lost in a big way, in the first such case to reach the United States Supreme Court. Reynolds v. United States (1878). In 1963, the Supreme Court held that the Free Exercise Clause of the First Amendment does require the government to make accommodations for religious exercise, subject as always to limitations based on the public interest and the rights of others. Sherbert v. Verner (1963). In 1990, the Court shifted to the opposite view, in a case involving the sacramental use of peyote by members of the Native American Church. Employment Division v. Smith (1990).
Today we have a patchwork of rules. When the federal government is involved, legislation called the Religious Freedom Restoration Act grants us the right to seek appropriate accommodation when our religious practices conflict with government policy. About half the states have similar rules, and a similar rule protects prisoners like the Muslim prisoner who recently won the right to wear a half-inch beard in accordance with Islamic law, by a 9-0 vote in the Supreme Court. Holt v. Hobbs (2015).
The range of claims has been as diverse as the religious demography of the country. A small Brazilian sect won the right to use a hallucinogenic drug in worship ceremonies; Amish farmers have won exceptions from traffic rules; Muslim soldiers have been given special accommodation when fasting for Ramadan; Orthodox Jewish boys won the right to wear their skullcaps when playing high school basketball; a Jehovah’s Witness won the right to unemployment compensation after he quit rather than working to produce tank turrets; a Mormon acting student won the right to refuse roles involving nudity or profanity; and in the most controversial recent case, a family-owned business with religious objections to paying for abortion-inducing drugs persuaded the Supreme Court that the government should make those contraceptives available without forcing them to be involved.
In all these cases, courts or agencies came to the conclusion that religious exercise could be accommodated with little or no harm to the public interest or to others. As Justice Sandra Day O’Connor (joined by liberal lions Brennan, Marshall, and Blackmun) wrote: “courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.” Employment Division v. Smith (1989) (concurring opinion).
At a time when the Supreme Court’s same-sex marriage decision has allowed many millions of Americans to live their lives in accordance with their own identity, it would be tragic if we turned our backs on the right to live in accordance with our religious conviction, which is also part of who we are. A robust protection for free exercise of religion is not only part of the American tradition, it is vital to our protection for diversity and freedom.Michael McConnell Richard and Frances Mallery Professor and Director of the Constitutional Law Center, Stanford Law School, and Senior Fellow at the Hoover Institution
Freedom of Speech and the PressBy Geoffrey R. Stone and Eugene Volokh
“Congress shall make no law . . . abridging the freedom of speech, or of the press.” What does this mean today? Generally speaking, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in exceptional circumstances.
Although the First Amendment says “Congress,” the Supreme Court has held that speakers are protected against all government agencies and officials: federal, state, and local, and legislative, executive, or judicial. The First Amendment does not protect speakers, however, against private individuals or organizations, such as private employers, private colleges, or private landowners. The First Amendment restrains only the government.
The Supreme Court has interpreted “speech” and “press” broadly as covering not only talking, writing, and printing, but also broadcasting, using the Internet, and other forms of expression. The freedom of speech also applies to symbolic expression, such as displaying flags, burning flags, wearing armbands, burning crosses, and the like.
The Supreme Court has held that restrictions on speech because of its content—that is, when the government targets the speaker’s message—generally violate the First Amendment. Laws that prohibit people from criticizing a war, opposing abortion, or advocating high taxes are examples of unconstitutional content-based restrictions. Such laws are thought to be especially problematic because they distort public debate and contradict a basic principle of self-governance: that the government cannot be trusted to decide what ideas or information “the people” should be allowed to hear.
There are generally three situations in which the government can constitutionally restrict speech under a less demanding standard.
1. In some circumstances, the Supreme Court has held that certain types of speech are of only “low” First Amendment value, such as:
a. Defamation: False statements that damage a person’s reputations can lead to civil liability (and even to criminal punishment), especially when the speaker deliberately lied or said things they knew were likely false. New York Times v. Sullivan (1964).
b. True threats: Threats to commit a crime (for example, “I’ll kill you if you don’t give me your money”) can be punished. Watts v. United States (1969).
c. “Fighting words”: Face-to-face personal insults that are likely to lead to an immediate fight are punishable. Chaplinsky v. New Hampshire (1942). But this does not include political statements that offend others and provoke them to violence. For example, civil rights or anti-abortion protesters cannot be silenced merely because passersby respond violently to their speech. Cox v. Louisiana (1965).
d. Obscenity: Hard-core, highly sexually explicit pornography is not protected by the First Amendment. Miller v. California (1973). In practice, however, the government rarely prosecutes online distributors of such material.
e. Child pornography: Photographs or videos involving actual children engaging in sexual conduct are punishable, because allowing such materials would create an incentive to sexually abuse children in order to produce such material. New York v. Ferber (1982).
f. Commercial advertising: Speech advertising a product or service is constitutionally protected, but not as much as other speech. For instance, the government may ban misleading commercial advertising, but it generally can’t ban misleading political speech. Virginia Pharmacy v. Virginia Citizens Council (1976).
Outside these narrow categories of “low” value speech, most other content-based restrictions on speech are presumptively unconstitutional. Even entertainment, vulgarity, “hate speech” (bigoted speech about particular races, religions, sexual orientations, and the like), blasphemy (speech that offends people’s religious sensibilities), and violent video games are protected by the First Amendment. The Supreme Court has generally been very reluctant to expand the list of “low” value categories of speech.
2. The government can restrict speech under a less demanding standard when the speaker is in a special relationship to the government. For example, the speech of government employees and of students in public schools can be restricted, even based on content, when their speech is incompatible with their status as public officials or students. A teacher in a public school, for example, can be punished for encouraging students to experiment with illegal drugs, and a government employee who has access to classified information generally can be prohibited from disclosing that information. Pickering v. Board of Education (1968).
3. The government can also restrict speech under a less demanding standard when it does so without regard to the content or message of the speech. Content-neutral restrictions, such as restrictions on noise, blocking traffic, and large signs (which can distract drivers and clutter the landscape), are generally constitutional as long as they are “reasonable.” Because such laws apply neutrally to all speakers without regard to their message, they are less threatening to the core First Amendment concern that government should not be permitted to favor some ideas over others. Turner Broadcasting System, Inc. v. FCC (1994). But not all content-neutral restrictions are viewed as reasonable; for example, a law prohibiting all demonstrations in public parks or all leafleting on public streets would violate the First Amendment. Schneider v. State (1939).
Courts have not always been this protective of free expression. In the nineteenth century, for example, courts allowed punishment of blasphemy, and during and shortly after World War I the Supreme Court held that speech tending to promote crime—such as speech condemning the military draft or praising anarchism—could be punished. Schenck v. United States (1919). Moreover, it was not until 1925 that the Supreme Court held that the First Amendment limited state and local governments, as well as the federal government. Gitlow v. New York (1925).
But starting in the 1920s, the Supreme Court began to read the First Amendment more broadly, and this trend accelerated in the 1960s. Today, the legal protection offered by the First Amendment is stronger than ever before in our history.
Matters of Debate
Geoffrey R. Stone Interim Dean and Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Fixing Free Speech by Geoffrey R. Stone
Three issues involving the freedom of speech are most pressing for the future: Money, Politics, and the First Amendment.Full Text
Eugene Volokh Gary T. Schwartz Professor of Law, UCLA School of Law
Frontiers for Free Speech by Eugene Volokh
I like Professor Stone’s list of important issues. I think speech about elections, including speech that costs money, must remain protected, whether it’s published by individuals, nonprofit corporations, labor unions, media corporations, or nonmedia business corporations. And I think restrictions on “hate speech” should remain unconstitutional.Full Text
Fixing Free SpeechBy Geoffrey R. Stone
Three issues involving the freedom of speech are most pressing for the future.
Money, Politics, and the First Amendment
The first pressing issue concerns the regulation of money in the political process. Put simply, the question is this: To what extent, and in what circumstances, can the government constitutionally restrict political expenditures and contributions in order to “improve” the democratic process?
In its initial encounters with this question, the Supreme Court held that political expenditures and contributions are “speech” within the meaning of the First Amendment because they are intended to facilitate political expression by political candidates and others. The Court also recognized, however, that political expenditures and contributions could be regulated consistent with the First Amendment if the government could demonstrate a sufficiently important justification. In Buckley v. Valeo (1976), for example, the Court held that the government could constitutionally limit the amount that individuals could contribute to political candidates in order to reduce the risk of undue influence, and in McConnell v. Federal Election Commission (2003), the Court held that the government could constitutionally limit the amount that corporations could spend in the political process in order to influence electoral outcomes.
In more recent cases, though, in a series of five-to-four decisions, the Supreme Court has overruled McConnell and held unconstitutional most governmental efforts to regulate political expenditures and contributions. Citizens United v. Federal Election Commission (2010); McCutcheon v. Federal Election Commission (2014). As a result of these more recent decisions, almost all government efforts to limit the impact of money in the political process have been held unconstitutional, with the consequence that corporations and wealthy individuals now have an enormous impact on American politics.
Those who object to these decisions maintain that regulations of political expenditures and contributions are content-neutral restrictions of speech that should be upheld as long as the government has a sufficiently important justification. They argue that the need to prevent what they see as the corruption and distortion of American politics caused by the excessive influence of a handful of very wealthy individuals and corporations is a sufficiently important government interest to justify limits on the amount that those individuals and corporations should be permitted to spend in the electoral process.
Because these recent cases have all been five-to-four decisions, it remains to be seen whether a differently constituted set of justices in the future will adhere to the current approach, or whether they will ultimately overrule or at least narrowly construe those decisions. In many ways, this is the most fundamental First Amendment question that will confront the Supreme Court and the nation in the years to come.
This essay is part of a discussion about Freedom Of Speech And The Press with Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law. Read the full discussion here.
The Meaning of “Low” Value Speech
The second pressing free speech issue concerns the scope of “low” value speech. In recent years, the Supreme Court has taken a narrow view of the low value concept, suggesting that, in order for a category of speech to fall within that concept, there has to have been a long history of government regulation of the category in question. This is true, for example, of such low value categories as defamation, obscenity, and threats. An important question for the future is whether the Court will adhere to this approach.
The primary justification for the Court’s insistence on a history of regulation is that this limits the discretion of the justices to pick-and-choose which categories of expression should be deemed to have only low First Amendment value. A secondary justification for the Court’s approach is that a history of regulation of a category of expression provides some basis in experience for evaluating the possible effects – and dangers – of declaring a new category of speech to have only low First Amendment value.
Why does this doctrine matter? To cite one illustration, under the Court’s current approach, so-called “hate speech” – speech that expressly denigrates individuals on the basis of such characteristics as race, religion, gender, national origin, and sexual orientation – does not constitute low value speech because it has not historically been subject to regulation. As a result, except in truly extraordinary circumstances, such expression cannot be regulated consistent with the First Amendment. Almost every other nation allows such expression to be regulated and, indeed, prohibited, on the theory that it does not further the values of free expression and is incompatible with other fundamental values of society.
Similarly, under the Court’s approach to low value speech it is unclear whether civil or criminal actions for “invasion of privacy” can be reconciled with the First Amendment. For example, can an individual be punished for distributing on the Internet “private” information about other persons without their consent? Suppose, for example, an individual posts naked photos of a former lover on the Internet. Is that speech protected by the First Amendment, or can it be restricted as a form of “low” value speech? This remains an unresolved question.
Leaks of Classified Information
The Supreme Court has held that the government cannot constitutionally prohibit the publication of classified information unless it can demonstrate that the publication or distribution of that information will cause a clear and present danger of grave harm to the national security. New York Times v. United States (The “Pentagon Papers” case) (1971). At the same time, though, the Court has held that government employees who gain access to such classified information can be restricted in their unauthorized disclosure of that information. Snepp v. United States (1980). It remains an open question, however, whether a government employee who leaks information that discloses an unconstitutional, unlawful, or unwise classified program can be punished for doing so. This issue has been raised by a number of recent incidents, including the case of Edward Snowden. At some point in the future, the Court will have to decide whether and to what extent the actions of government leakers like Edward Snowden are protected by the First Amendment.Geoffrey R. Stone Interim Dean and Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School
Frontiers for Free SpeechBy Eugene Volokh
I like Professor Stone’s list of important issues. I think speech about elections, including speech that costs money, must remain protected, whether it’s published by individuals, nonprofit corporations, labor unions, media corporations, or nonmedia business corporations. (Direct contributions to candidates, as opposed to independent speech about them, can be restricted, as the Court has held.) And I think restrictions on “hate speech” should remain unconstitutional. But I agree these are likely to be heavily debated issues in the coming years. I’d like to add three more issues as well.
Many professionals serve their clients by speaking. Psychotherapists try to help their patients by talking with them. Doctors make diagnoses, offer predictions, and recommend treatments. Lawyers give legal advice; financial planners, financial advice. Some of these professionals also do things (such as prescribe drugs, perform surgeries, or file court documents that have legal effect). But much of what they do is speak.
Yet the law heavily regulates such speakers. It bars people from giving any legal, medical, psychiatric, or similar advice unless they first get licenses (which can take years and hundreds of thousands of dollars’ worth of education to get)—though the government couldn’t require a license for people to become journalists or authors. The law lets clients sue professionals for malpractice, arguing that the professionals’ opinions or predictions proved to be “unreasonable” and harmful, though similar lawsuits against newspapers or broadcasters would be unconstitutional.
And the law sometimes forbids or compels particular speech by these professionals. Some states ban psychiatrists from offering counseling aimed at changing young patients’ sexual orientation. Florida has restricted doctors’ questioning their patients about whether the patients own guns. Many states, hoping to persuade women not to get abortions, require doctors to say certain things or show certain things to women who are seeking abortions. The federal government has tried to punish doctors who recommend that their patients use medical marijuana (which is illegal under federal law, but which can be gotten in many states with the doctor’s recommendation).
When are these laws constitutional? Moreover, if there is a First Amendment exception that allows such regulations of professional-client speech, which professions does it cover? What about, for instance, tour guides, fortunetellers, veterinarians, or diet advisors? Courts are only beginning to confront the First Amendment implications of these sorts of restrictions, and the degree to which the government’s interest in protecting clients—and in preventing behavior that the government sees as harmful—can justify restricting professional-client speech.
This essay is part of a discussion about Freedom Of Speech And The Press with Geoffrey R. Stone, Interim Dean and Edward H. Levi Distinguished Service Professor of Law, University of Chicago Law School. Read the full discussion here.
Some speech contains information that helps people commit crimes, or get away with committing crimes. Sometimes this is general information, for instance about how bombs are made, how locks can be picked, how deadly viruses can be created, how technological protections for copyrighted works can be easily evaded, or how a contract killer can get away with his crime.
Sometimes this is specific information, such as the names of crime witnesses that criminals might want to silence, the location of police officers whom criminals might want to avoid, or the names of undercover officers or CIA agents. Indeed, sometimes this can be as familiar as people flashing lights to alert drivers that a police officer is watching; people are occasionally prosecuted for this, because they are helping others get away with speeding.
Sometimes this speech is said specifically with the purpose of promoting crime—but sometimes it is said for other purposes: consider chemistry books that talk about explosives; newspaper articles that mention people’s names so the readers don’t feel anything is being concealed; or novels that accurately describe crimes just for entertainment. And sometimes it is said for political purposes, for instance when someone describes how easy it is to evade copyright law or proposed laws prohibiting 3-D printing of guns, in trying to explain why those laws need to be rejected.
Surprisingly, the Supreme Court has never explained when such speech can be restricted. The narrow incitement exception, which deals with speech that aims to persuade people to commit imminent crimes, is not a good fit for speech that, deliberately or not, informs people about how to commit crimes at some point in the future. This too is a field that the Supreme Court will likely have to address in coming decades.
“Hostile Environment Harassment” Rules
Finally, some government agencies, courts, and universities have reasoned that the government may restrict speech that sufficiently offends employees, students, or business patrons based on race, religion, sex, sexual orientation, and the like. Here’s how the theory goes: Laws ban discrimination based on such identity traits in employment, education, and public accommodations. And when speech is “severe or pervasive” enough to create a “hostile or offensive environment” based on those traits, such speech becomes a form of discrimination. Therefore, the argument goes, a wide range of speech—such as display of Confederate flags, unwanted religious proselytizing, speech sharply criticizing veterans, speech suggesting that Muslims are disloyal, display of sexually suggestive materials, sexually-themed humor, sex-based job titles (such as “foreman” or “draftsman”), and more—can lead to lawsuits.
Private employers are paying attention, and restricting such speech by their employees. Universities are enacting speech codes restricting such speech. Even speech in restaurants and other public places, whether put up by the business owner or said by patrons, can lead to liability for the owner. And this isn’t limited to offensive speech said to a particular person who doesn’t want to hear it. Even speech posted on the wall or overheard in the lunchroom can lead to liability, and would thus be suppressed by “hostile environment” law.
To be sure, private employers and business owners aren’t bound by the First Amendment, and are thus generally free to restrict such speech on their property. And even government employers and enterprises generally have broad latitude to control what is said on their property (setting aside public universities, which generally have much less such latitude). But here the government is pressuring all employers, universities, and businesses to impose speech codes, by threatening liability on those who don’t impose such codes. And that government pressure is subject to First Amendment scrutiny.
Some courts have rejected some applications of this “hostile environment” theory on First Amendment grounds; others have upheld other applications. This too is something the Supreme Court will have to consider.Eugene Volokh Gary T. Schwartz Professor of Law, UCLA School of Law
Right to Assemble and PetitionBy John Inazu and Burt Neuborne
The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights. For example, debates in the House of Representatives during the adoption of the Bill of Rights linked “assembly” to the arrest and trial of William Penn for participating in collective religious worship that had nothing to do with petitioning the government.
While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.” Many scholars believe that focusing singularly on an expansive idea of speech undervalues the importance of providing independent protection to the remaining textual First Amendment rights, including assembly and petition, which are designed to serve distinctive ends.
Assembly is the only right in the First Amendment that requires more than a lone individual for its exercise. One can speak alone; one cannot assemble alone. Moreover, while some assemblies occur spontaneously, most do not. For this reason, the assembly right extends to preparatory activity leading up to the physical act of assembling, protections later recognized by the Supreme Court as a distinct “right of association,” which does not appear in the text of the First Amendment.
The right of assembly often involves non-verbal communication (including the message conveyed by the very existence of the group). A demonstration, picket-line, or parade conveys more than the words on a placard or the chants of the crowd. Assembly is, moreover, truly “free,” since it allows individuals to engage in mass communication powered solely by “sweat equity.”
The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision, De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
The right of assembly gained particular prominence in tributes to the Bill of Rights as the United States entered the Second World War. Eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt, all emphasized the significance of the assembly right. At a time when civil liberties were at the forefront of public consciousness, assembly figured prominently as one of the original “Four Freedoms” (along with speech, press, and religion). When, however, President Franklin Delano Roosevelt switched to a different grouping of “four freedoms” in an effort to rally support for American entry into WWII, assembly (and press) dropped out. Neglect of assembly as a freestanding right has continued ever since. In fact, the Supreme Court has not decided a case explicitly on free assembly grounds in over thirty years. But despite its recent state of hibernation, the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called “the right to differ.”
The right to “petition the Government for redress of grievances” is among the oldest in our legal heritage, dating back 800 years to the Magna Carta, and receiving explicit protection in the English Bill of Rights of 1689, long before the American Revolution. Ironically, the modern Supreme Court has all but read the venerable right to petition out of the Bill of Rights, effectively holding that it has been rendered obsolete by an expanding Free Speech Clause. As with assembly, however, the right to petition is not simply an afterthought to the Free Speech Clause.
The right to petition plays an important role in American history. The Declaration of Independence justified the American Revolution by noting that King George III had repeatedly ignored petitions for redress of the colonists’ grievances. Legislatures in the Revolutionary period and long into the nineteenth century deemed themselves duty-bound to consider and respond to petitions, which could be filed not only by eligible voters but also by women, slaves, and aliens. John Quincy Adams, after being defeated for a second term as President, was elected to the House of Representatives where he provoked a near riot on the House floor by presenting petitions from slaves seeking their freedom. The House leadership responded by imposing a “gag rule” limiting petitions, which was repudiated as unconstitutional by the House in 1844.
One of the risks of representative democracy is that elected officials may favor the narrow partisan interests of their most powerful supporters, or choose to advance their own personal interests instead of viewing themselves as faithful agents of their constituents. A robust right to petition is designed to minimize such risks. By being forced to acknowledge and respond to petitions from ordinary persons, officials become better informed and must openly defend their positions, enabling voters to pass a more informed judgment.
The right to petition should be contrasted with the right to instruct. A right of instruction permits a majority of constituents to direct a legislator to vote a particular way, while a right of petition assures merely that government officials must receive arguments from members of the public. The drafters of the Bill of Rights decided not to include a right of instruction in order to encourage legislators to exercise their best judgment about how to vote.
Today, in Congress and in virtually all 50 state legislatures, the right to petition has been reduced to a formality, with petitions routinely entered on the public record absent any obligation to debate the matters raised, or to respond to the petitioners. In a political system where incumbent legislators can make it all but impossible to mount a credible re-election challenge, an energized right to petition might link modern legislators more closely to the entire electorate they are pledged to serve. Some scholars have even argued that the Petition Clause includes an implied duty to acknowledge, debate, or even vote on issues raised by a petition. The precise role of a robust Petition Clause in our twenty-first century democracy cannot be explored, however, until the Supreme Court frees the Clause from its current subservience to the Free Speech Clause.
Matters of Debate
John Inazu Associate Professor of Law and Professor of Political Science, Washington University in St. Louis [photo credit Joe Angeles]
Beyond Speech and Association by John Inazu
One of the most troubling developments in modern First Amendment doctrine is the judicial focus on the free speech right to the exclusion of other rights and the values and purposes that underlie them. This neglect has significant consequences for two aspects of the right of assembly: 1) the right to protest; and 2) the right to associate.Full Text
Burt Neuborne Norman Dorsen Professor of Civil Liberties and founding Legal Director of the Brennan Center for Justice, New York University School of Law
Reading the First Amendment as a Whole by Burt Neuborne
The forty-five words of the First Amendment list six necessary ingredients for democratic self-government . . . .Full Text
Beyond Speech and AssociationBy John Inazu
One of the most troubling developments in modern First Amendment doctrine is the judicial focus on the free speech right to the exclusion of other rights and the values and purposes that underlie them. This neglect has significant consequences for two aspects of the right of assembly: (1) the right to protest; and (2) the right to associate.
Most protests are governed what is known as the public forum doctrine, which allows government to regulate expressive activity in public spaces through time, place, and manner restrictions. Today’s public forum doctrine is linked entirely to the free speech right—the right of assembly is seldom even mentioned in judicial analysis of protest restrictions. And current speech-based public forum analysis upholds restrictions on political protesters, anti-abortion demonstrators, labor picketers, churches, and religious groups.
The focus on speech to the exclusion of assembly is odd, since a protest is often more obviously an assembly than it is speech, and some protests don’t include any verbal expression at all.
The origins of the public forum doctrine are closely linked to the right of assembly. As the Court noted in one of its earliest cases that recognized the public forum: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” The public forum is a First Amendment doctrine, not a free speech doctrine.
The First Amendment refers to the right of the people “to assemble.” That wording suggests a momentary gathering, like a protest or parade. But the verb “assemble” presupposes a noun—an assembly. And while some assemblies occur spontaneously, most do not. People usually need to form a group or association of some kind before they assemble in public. Those formative experiences include building relationships, developing ideas, and forming social bonds—activities that ought to be protected from unwarranted government interference. Just as government can effectively eliminate the free speech right by imposing a prior restraint before speech manifests, it can effectively eliminate the assembly right by restricting a group or association before it assembles in public.
The Supreme Court has attempted to address these other interests by recognizing a “right of association” that does not appear in the text of the Constitution. The Court initially linked this right to the First Amendment rights of speech and assembly. Over time, however, courts and scholars neglected the assembly roots of the right of association and focused increasingly on speech and expression.
This essay is part of a discussion about the Right To Assemble And Petition with Burt Neuborne, Norman Dorsen Professor of Civil Liberties and founding Legal Director of the Brennan Center for Justice, New York University School of Law. Read the full discussion here.
The clearest example of the Court’s focus on outward expression at the cost of other important values underlying assembly is its recognition of the category of “expressive association” in a 1984 decision, Roberts v. United States Jaycees. (The Jaycees decision also recognized a separate category of “intimate association,” but courts have narrowed eligibility for that constitutional category to the point that it offers few practical protections.)
The basic idea of expressive association is that a group is eligible for constitutional protection only to the extent that its purposes and activities further some other First Amendment interest, like speech, press, or religion. The Supreme Court has put it this way: “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”
In other words, the legal doctrine of expressive association instrumentalizes the associational right—it must be enlisted toward some purportedly more significant end. But as political theorist George Kateb has observed, in the real world, “people find in association a value in itself.” Instrumentalizing association toward outwardly expressive ends neglects these other goods.
Expressive association also comes with a troubling corollary: some associations are “non-expressive.” This category of non-expressive association obscures the fact that all associative acts have expressive potential: joining, gathering, speaking, and not speaking can all be expressive. It becomes very difficult, if not impossible, to police this line apart from the expressive intent of the members of the group.
Finally, the right of expressive association seems to marginalize the significance of a group’s composition, membership, and leadership to its other expressive purposes. As the Supreme Court has asserted on multiple occasions:
There can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire. Such a regulation may impair the ability of the original members to express only those views that brought them together. Freedom of association therefore plainly presupposes a freedom not to associate.
Roberts v. United States Jaycees (1984).
Yet, in practice, the Court has often failed to honor the implications of this claim. In one of the most disturbing decisions in this area of the law, a 5-4 majority concluded in a 2010 decision, Christian Legal Society v. Martinez, that claims of speech and expressive association simply “merge” into free speech analysis. That conclusion implies that the right of association raises no important First Amendment values left unaddressed by the free speech right. So, too, it seems with the Court’s treatment of the rights of assembly and petition.John Inazu Associate Professor of Law and Professor of Political Science, Washington University in St. Louis [photo credit Joe Angeles]
Reading the First Amendment as a WholeBy Burt Neuborne
The forty-five words of the First Amendment list six necessary ingredients for democratic self-government: the Establishment Clause (freedom from religion); the Free Exercise Clause (freedom of religion); the Free Speech Clause (freedom to speak your mind); the Free Press Clause (freedom to use technology to transmit speech to a larger audience); Freedom of Assembly (freedom to join with others to advance an idea); and the right to Petition Government for Redress of Grievances (freedom to present arguments to the government).
The careful order of the six ideas replicates the life-cycle of a democratic idea: born in a free mind protected by the two Religion Clauses (which are viewed today by the Supreme Court as protecting secular as well as religious conscience); communicated to the public by a free speaker; disseminated to a mass audience by a free press; collectively advanced by freely assembled persons; and presented to the government for adoption pursuant to petition. No other rights-bearing document in our history lists the foundational ideas of conscience, speech, press, assembly and petition in one place, much less in the careful order imposed by the Founders.
Instead of treating each of the First Amendment’s six clauses as protecting an essential ingredient of democratic life worthy of independent elaboration, the modern Supreme Court often concentrates solely on the ten words of the Free Speech Clause, demoting the Press, Assembly, and Petition Clauses to specialized forms of speech. The result is an underdeveloped Free Press Clause, an anemic Free Assembly Clause, and a Petition Clause on life-support.
If the Free Press Clause were viewed, not merely as a colony of the Free Speech Clause, but as a freestanding grant of protection to the process of using technology to disseminate speech to a mass audience, the Supreme Court would be obliged to consider and define the role of a free press in a functioning democracy. At least three things might change. First, the Court might reconsider its refusal to grant members of the press increased access to places – like prisons – that are hidden from public view. Second, the Court might insulate the press from liability for merely transmitting someone else’s speech, just like the immunity enjoyed by the telephone company. Finally, the Court might re-consider its decision to treat huge corporate media empires as fully protected speakers, instead it might view them as technological conduits with a duty to provide access to weak voices as well as strong ones.
Under current law, the Supreme Court treats exercises of freedom of assembly, like picketing and demonstrating, as free speech that is “brigaded” with action. Thus, while the Supreme Court recognizes the abstract First Amendment right of people to gather together on streets and in parks for meetings, speeches, parades, protest marches, picketing, and demonstrations, it also grants the police broad discretion to regulate public assemblies in the name of preserving public order. Sometimes, the regulations require groups to obtain a permit in advance. Supporters of permit laws argue that they are needed to give the authorities notice of the possible need for a police presence, or to assure that competing groups do not seek to occupy the same space at the same time, risking violence. Opponents fear that local authorities will abuse the permit process to prevent unpopular persons from acting collectively to support their point of view.
This essay is part of a discussion about the Right To Assemble And Petition with John Inazu, Associate Professor of Law and Professor of Political Science, Washington University in St. Louis. Read the full discussion here.
In an effort to minimize possible abuse, the Supreme Court bans permit laws that give local authorities too much discretion about whether to permit an assembly, and requires that valid permit laws be enforced with strict equality. Even if a permit is granted – or is not required – public assemblies remain subject to discretionary regulation by the police in order to minimize the risk of disorder, or interference with the rights of others. The Supreme Court has ruled that it is the job of the police to protect an assembly from a “heckler’s veto.” Where, however, hostile response threatens to spill over into violence, inevitable pressure exists to shut down the assembly. Pressure also exists to prevent assemblies from inconveniencing non-participants through noise and interference with free passage. Not surprisingly, despite the Court’s effort to limit police discretion by requiring equal enforcement of precise regulations, under existing law, free assembly often exists at the mercy of the police. Witness the fate of Occupy Wall Street—an anarchic exercise in Free Assembly that was initially tolerated, but rapidly suppressed when it threatened to inconvenience too many non-participants.
While the tension between free assembly and public order can never be eliminated, recognition that the First Amendment treats free assembly as a fundamental building block for a well-functioning democracy—and not merely as a disfavored form of free speech—might place greater restraints on the power of the police to regulate free assembly. Preserving a vigorous right to assemble freely is particularly important, since marches, picketing and demonstrations provide poor, less well-educated segments of the society with a potent and inexpensive method of expression that does not require verbal sophistication.
Under existing law, the Petition for Redress of Grievances Clause is a dead letter. While the Supreme Court has ruled that the Petition Clause adds nothing to a free speech claim, the Founders must have believed that the right to Petition was not the same thing as the right to speak. That’s why they put the two ideas in separate clauses.
How might we resuscitate the Petition Clause in the 21st century United States? We might re-invent the Petition Clause as an anti-gridlock device to force the legislature to consider issues that, according to the petitioner, are being swept under the rug. We might require an answer to a formal petition. We might even require a formal vote. In a political system where legislators risk being insulated from their constituents, petitions might trigger the dialogue that knits them closer together. Finally, the Petition Clause may have untapped potential. In 1958, the Supreme Court expanded the literal text of the Free Assembly Clause to protect an analogous but extra-textual Freedom of Association. Most observers applaud this expansion of the Assembly Clause to cover more modern forms of democratic collective action. A similar potential for expansion by analogy exists in the Petition Clause. As we have seen, the six clauses of the First Amendment track the operation of democracy, culminating in the citizen’s formal interaction with the government under the Petition Clause. Until now, the idea of Petition has been limited to presenting written arguments to the government. What if petition were expanded to include the ultimate petition to redress grievance – voting – as assembly was expanded to include association? Maybe that’s where the elusive constitutional right to vote is hiding in plain sight, just waiting to be discovered?Burt Neuborne Norman Dorsen Professor of Civil Liberties and founding Legal Director of the Brennan Center for Justice, New York University School of Law