B.2(aa). Religious Freedom

The Government shall not establish any religion, nor prohibit any free exercise of religion that does not infringe the rights of others. Public officials may express personal faith, provided it does not reasonably imply official endorsement by the Government.

The very first words of the Bill of Rights are, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[1] In 234 years since that became law, there has been endless parsing, debating, and proclamation about what that clause means. Individual rights can and do fall on both sides of the debate, depending on the individual in question.

The history of Europe is replete with wars between Protestants and Catholics. The Middle East had the Crusades and still struggles with sectarian religious conflict between Sunni and Shi’a, among others. South Asia has battles between Muslims, Hindus, and Sikhs. As Americans, we face our own pressures related to religious conflict. If we want to preserve our peace, it’s past time for us to clean up this vague language.

The first sentence of this sub-clause is pretty straightforward. The government can’t establish a religion. Pastafarianism, Baptist Christianity, Judaism, Wicca… All of these (and more) are equally restricted from government endorsement. Along with that, the government can’t ban anyone from exercising their religion. This is a subset of the idea of Freedom of Belief.[2] And the same rule applies. As long as the exercise of religion doesn’t infringe on someone else’s rights, it must be respected. If you accepted my arguments on Freedom of Belief, this should be easy to swallow, too.

The rub comes in with individuals who happen to be in government exercising their religion. Some argue that the right to free exercise means that no government employee or official can be restricted from engaging in religious exercise under any circumstances. Others say that no government employee or official may publicly exercise their faith under any circumstances. Both extremes are wrong.

The next sentence imposes the test. The test is simple enough in concept, but tricky in application. If an official’s exercise of personal faith could cause a reasonable person to conclude that the official is trying to make or imply an endorsement of religion in general or their faith in particular, that’s not allowable. On the other hand, merely publicly exercising or expressing their faith while carrying out their duties doesn’t necessarily meet that bar. As long as their actions don’t appear to promote or endorse religion (or its absence), then those actions are fine. As with all rights, the balance is to try to preserve all rights. Only when that isn’t possible are restrictions allowable, and then only by the least restrictive means.

That is a lot of theorizing on a messy principle. Let’s look at some examples. Religious exercise in the classroom is a favorite subject of both sides of the debate, so let’s use that. If a teacher marched into class and told their students that the only way to pass was to declare the Flying Spaghetti Monster to be their Lord and Savior, that would be an action that seeks to establish Pastafarianism as a required religion. It would be blatantly in violation of this subclause. On the other hand, if that same teacher, without making any reference at all to their religion other than to wear a charm that depicts the FSM, no reasonable person could realistically say the teacher is imposing Pastafarianism on their class. It would be an allowable exercise of religion, even in the classroom. What if the teacher started each day by taking a minute to sit at their desk and pray to the FSM? Their prayer isn’t loud, maybe not even audible, but it is obviously a prayer. That alone is still not something that implies an establishment of religion. The teacher is simply praying (anyone who thinks prayer ever left the schoolhouse hasn’t been around on testing day). What if one or two students, on their own, joined the teacher? Still not an establishment of religion. On the other hand, if the teacher is very showy about their prayer, or even if they try to invite students to join, that crosses into the appearance of establishment.

It's vital that individuals are free to exercise their religion. It’s equally important that government not impose religion. This sub-clause strikes that balance.

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[1] U.S. Const. amend. I.

[2] See Article I, Section 2.B.2(z).