The First Amendment to the U.S. Constitution states that the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Courts have read this language to create two separate rules for governments.
The first portion of the statement is called the establishment clause, as it prohibits a government from establishing an official religion. Courts have read the clause to have a broader meaning as well, ruling that it prevents government actions that unduly favor one religion over another. The courts have found establishment clause violations in cases where a government required individuals to engage in public prayer that endorses a particular faith or denomination.
The second part is called the free exercise clause, and it generally protects individuals’ rights to believe and practice any sincerely held religion. While the right to hold any particular religious belief is absolute, the right to engage in conduct based on that belief may be limited by laws that do not discriminate against religion. For example, the government could use a generally applicable law forbidding the use of an illegal drug to prosecute individuals whose sincerely held religious beliefs require or permit them to use the drug.
Tension between the clauses
Sometimes, a government may face a dilemma between the establishment clause and free exercise clause, especially in situations where the government is concerned that allowing a person’s religious expression may be considered an endorsement of that expression. In 2022, the U.S. Supreme Court decided two cases that directly address this dilemma.
Post-game, on-field prayer
In Kennedy v. Bremerton School District, a high school football coach wanted to kneel and pray on the football field after games. Students and spectators often joined the coach for the prayer. The school district sought to prevent the coach from praying on the school’s field immediately after a school event, reasoning that allowing it would violate the establishment clause.
The Supreme Court ruled in favor of the football coach, finding that he had a right under the free exercise clause to engage in voluntary prayer on his own, even on the school’s field. The Court’s decision turned largely on the coach’s argument that his prayer was entirely personal and voluntary, and that no students or spectators were coerced or encouraged to participate. Therefore, reasoned the Court, there was no violation of the establishment clause.
Flying a religious flag
The case Shurtleff v. City of Boston involved a flag display custom of Boston’s city government. Outside of its city hall, the City of Boston had three flagpoles, two of which always flew the flags of the United States and the Commonwealth of Massachusetts. The third flagpole ordinarily flew Boston’s city flag, but was made available on request to third parties to temporarily fly flags related to an event taking place in the city hall plaza. For example, during an event celebrating Irish heritage, the city would allow organizers to fly the flag of Ireland on the pole.
Under this practice, a Christian organization hosted an event and requested to fly a Christian flag. The city, having never before denied a third-party flagpole use request, denied this request. The city reasoned that doing so would violate the establishment clause, in that it could be seen as an endorsement by the city of Christianity over other religions. The organization asserted that denying the right to fly the flag violated the free exercise clause.
Again, the Supreme Court favored the free exercise clause. Reasoning that the only reason the city denied the request was because of its religious purpose, the Court found a violation of the free exercise clause. Addressing the establishment clause argument, the Court held that merely allowing a flag to be flown was not an endorsement of religion, because the city had no policy or practice about which flags would be flown.
Lessons for cities and towns
For cities and towns, the establishment clause comes into play most often in cases with legislative prayer before a council meeting. In South Carolina, the 2016 SC Public Invocation Act, found at SC Code Section 6-1-160, provides clear rules. In general, a city or town that complies with the Act has likely complied with the establishment clause.
Even so, cities and towns should also be aware of other acts that may endorse one religion or denomination over another. Situations in which the question may arise include Christmas displays, posting Bible verses or the Ten Commandments on municipal property, or favoring a particular religious faith in administering government programs or benefits.
Addressing the free exercise clause can be a trickier process. Although few South Carolina cities or towns allow third parties to fly flags, many allow members of the public to post on municipal websites or social media accounts. Deleting or moderating content based on the religious content may constitute a free exercise violation. A city or town may also find itself in a situation involving the free exercise clause if it uses communication channels such as a Public, Educational and Government Access station, or PEG station, on the local cable network.
Also, during the time when cities and towns passed mask requirements as a COVID-19 precaution, they were required to exempt from local mask ordinances a person whose sincere religious beliefs prevented the wearing of masks.
A clear trend for the modern Supreme Court is to expand personal religious liberties under the First Amendment. Cities and towns should be careful in taking actions that abridge these liberties.