Freedom of Religion and the First Amendment: Where to Learn More

On my lunch break recently, I was walking past Lincoln Park (the small park between Civic Center Park and the State Capitol grounds) when I noticed something I had never seen before: a Ten Commandments monument. It's not very big, and I had walked past it dozens of times without noticing it. But it's a religious monument on government property, and things like that can generate controversy far out of proportion to their size. I wondered if it had been the subject of any lawsuits, so when I got back to the Central Library, I did what reference librarians do: I looked it up. 

Sure enough, the monument was the subject of a lawsuit that went to the Colorado Supreme Court in 1995. After the Freedom From Religion Foundation sued to have the monument removed, a lower court ruled that it was in fact an unconstitutional endorsement of religion by the state. But in a closely divided decision, the Colorado Supreme Court overturned that ruling, allowing the monument to stand. The decision was based in part on the fact that there are other, secular monuments in Lincoln Park. 

Just across Civic Center Park from the Ten Commandments monument you can see another display that has generated similar controversies: the nativity scene that goes up every year in front of the City and Country Building. In 1986, the Colorado Supreme Court ruled that the nativity scene did not violate the Colorado or U.S. Constitution, because it was part of a larger holiday display featuring secular figures like elves and reindeer. Nativity scenes can be displayed on government property, as long as the display also has secular elements. This is sometimes called the "plastic reindeer rule". 

These controversies were relatively small and local, but they show how constitutional clashes over the relationship between church and state can happen right in our back yard. More recently, Colorado became the focus of a nationwide First Amendment controversy: the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case. Currently, that case has been considered, but not decided, by the U.S. Supreme Court.

And that's just one of many current national conflicts over religion and the First Amendment. Roy Moore, the former Alabama chief justice who recently lost a bid for election as a senator from Alabama, first gained national attention when he installed a Ten Commandments monument in his courtroom. The Trump administration policies that have been widely challenged on First Amendment grounds include vouchers for religious schools, the promise to repeal the Johnson Amendment (which prevents churches from endorsing political candidates), and the travel bans that target certain Muslim-majority countries. Nearly 230 years after the First Amendment became law, arguments still rage about what it means. 

So...what does it mean? That's certainly not for me to say, but as a reference librarian, I can point you to some good sources for understanding the history and controversies. Before getting into those, though, it helps to take a look at what the First Amendment actually says about religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

That's it. Sixteen words. The part about "establishment of religion" is known as the Establishment Clause, and the part about "prohibiting the free exercise thereof" is known as the Free Exercise Clause. These two clauses often come into conflict. For example, does it violate the First Amendment for students at a public school to lead prayers at graduations? Many would argue that they are engaging in the Free Exercise of their religion, but others argue that the prayers are occurring as a part of an official function at a public school, and thus violate the Establishment Clause.

In 1995, the US Supreme Court ruled that prayers cannot be a part of official public-school functions, even when led by students. (Students and groups of students may pray in public schools, however, as long as they aren't coercing other students into doing so, or disrupting school activities.) Balancing the Establishment and Free Exercise clauses is no easy task, and there's no indication that the resulting controversies will subside any time soon.

One more basic thing to understand about the First Amendment is that you can't understand how it's applied in courts just by reading its plain text. As I noted in an earlier post about freedom of speech and the First Amendment, it doesn't just apply to Congress--it applies to all branches of the federal government. At one time, it didn't apply to state and local governments, but in the 1940s the Supreme Court decided that the Fourteenth Amendment makes the Establishment Clause and Free Exercise Clause binding on lower levels of government. It also doesn't mean exactly what it says. For example, Congress has made laws prohibiting certain religious practices, such as polygamy, and those laws have been upheld by the courts.

With that basic background in mind, let's look at some good sources for learning more about religion and the First Amendment. One of the best resources I know for questions like this is the Interactive Constitution at the National Constitution Center. It features the full text of the Constitution, along with brief, easy-to-understand articles by legal scholars. It has an article on the Establishment Clause and another on the Free Exercise Clause. To ensure a balanced treatment, each article is co-written by two legal scholars with different opinions of the issue, and then each scholar writes another essay in defense of their position. When Supreme Court cases are mentioned, there are links to concise case descriptions at another excellent website, Oyez.org

If you want to dig deeper, DPL has two databases with tons of information on religion and the First Amendment. One is Gale Virtual Reference Library, which is an online collection of electronic reference books. Here are some good articles you can find there:

Gale Encyclopedia of American Law

Encyclopedia of the Supreme Court of the United States

Another great database for balanced coverage of contentious issues is CQ Researcher. It features in-depth, non-partisan overviews of current controversies, and includes pro/con discussions by people on opposed sides of the issue:

Sources like the ones above are great for getting short, non-partisan overviews of this very complex subject. If you want to dig deeper, there are many books on religion and the First Amendment, but be warned: most of them are written from a partisan perspective. As a public library, we have all perspectives! Just click the subject headings below to marvel at the diversity of opinions on religion and government in the United States, and our freedom to read, write, and express those opinions.

Church and state -- United States

Freedom of religion -- United States

Got questions? Ask Us or call Reference Services at 720.865.1363.

This post is part of a series the reference department is doing about civic literacy, so stay tuned for more. We also have an display on civic literacy at the Central Library, so if you're in the neighborhood, stop by and take a look!

Written by Ross on January 23, 2018

Comments

Joy Hakim on February 3, 2018

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I've published an ebook Free to Believe (Or Not). I'm a Colorado author.

SuzanneK on February 4, 2018

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Excellent discussion!

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