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In addition to the speech, press, assembly, and petition clauses, the First Amendment to the U.S. Constitution contains two provisions dealing with the subject of religion: the Establishment Clause and the Free Exercise Clause. They read as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Clearly, the religion clauses are intended to severely restrain Congress's power to legislate in the area of religion; but are the restrictions on Congress in this area absolute, or limited? More specifically, what restrictions are placed on Congress? When is it that a law can be said to touch on religion; is it only when the law mentions religion, or are there other laws that might fall within the limitations imposed by the religion clauses? And how are the sometimes seemingly contradictory commands of the Establishment and Free Exercise clauses to be reconciled? Finally, and most importantly, how does a structural approach to constitutional interpretation contribute to our understanding of these issues? These are the questions explored in this chapter.

Litigants' religion is central to some cases, such as those making a free exercise claim; a substantial factor in others, such as clergy charged with sexual abuse, defendants who introduce their religious conversion to mitigate sentencing, or those who use religion as a defense (e.g., a parent who refused to seek medical treatment for a child on religious grounds); and a peripheral factor in most routine cases. Although a litigant's religion is not relevant in these routine cases, it might nonetheless come up if the person has a religious occupation, and it could also be inferred from a person's surname or dress. This chapter addresses the role of litigants' religion.

This chapter describes the recent Supreme Court cases dealing with the Establishment Clause and Free Exercise Clause of the First Amendment, while also previewing the issues likely to arise in the future. It identifies how for both of these provisions there are two competing philosophies, which are titled “accommodation” and “separation.” “Accommodationists” see little as violating the Establishment Clause but want the Free Exercise Clause to be aggressively used to create an exception to general laws based on religious beliefs. “Separationists” see the Establishment Clause as creating a secular government and reject special exceptions for religion. At this point in American history, there is a political divide: conservatives tend to favor the accommodation approach, while liberals favor the separationist view.

Over the last few decades, there have been three competing views of the meaning of the Establishment Clause held by members of the Supreme Court. One, favored by the liberal justices, is that the Establishment Clause should be understood as creating a wall separating church and state. An alternative view, favored by the conservative justices, is that there should be “accommodation” between religion and government. Under this view, the government violates the Establishment Clause only if it creates a church, coerces religious participation, or discriminates among religions in giving financial benefits. A third position is that the government acts unconstitutionally if it endorses religion or a specific religion. The chapter argues that separation is the best view of the Establishment Clause and applies this to prayers at government activities, religious symbols on government property, and government aid to religious institutions.

This chapter reviews social scientific research on the relationship between judges' religion and their decisions. It begins with a historical perspective on the role of religion in judicial selection (e.g., Catholic and Jewish seats on the U.S. Supreme Court). Next it reviews research on the relationship between judges' religious beliefs and their decisions, in both trial and appellate courts, and describes cases in which judges have explicitly invoked religion in sentencing. Judges have done this, for example, in sentencing defendants to attend religious services or in quoting religious texts to justify a particular sentence.

This chapter surveys some of the major eras and events involving law and religion in American history. The history of law and religion in the United States has been used to argue both for and against the separation of church and state. Numerous decisions by the U.S. Supreme Court reflect this use of history. In 1940, the Supreme Court decided Cantwell v Connecticut, which incorporated the Free Exercise Clause through the Fourteenth Amendment. Seven years later, the Court decided Everson v Board of Education (1947), which incorporated the Establishment Clause. Incorporation was key to the current era of law and religion. This chapter begins with an overview of law and religion in the colonies and the United States during the period 1750–1870 before turning to the years 1870–1940 and the post-incorporation era from 1940/1947 to the present.

This chapter discusses the struggles of the US Congress in locating Indian religious practices within and without protection of the Free Exercise Clause of the First Amendment of the Constitution. It takes on the issue of whether there are any notable free exercise issues involving Indians in the context of potential infringement by tribal government restrictions. The chapter also investigates the rationale behind the decision in Talton v. Mayes regarding the issue, and analyzes past procedures on how free exercise of religion were “regulated” in the eighteenth and nineteenth centuries. Additionally, it focuses on the possibility of government discrimination against traditional Indian religious practices.

A common critique of a “separationist” position on matters of government and religion is that it represents inappropriate hostility toward religious people and practices. This chapter reviews and rebuts this critique. Most of the time, this critique is premised on the assumption that the government should be allowed to align itself with Christian or Judeo-Christian practices and symbols because they are part of our “heritage” and “traditions.” This chapter rejects this assumption as inconsistent with the Constitution’s expectation that government not formally align itself with particular religions. The separationist position ends the inherent hostility that such practices demonstrated toward historically excluded or disfavored religious traditions and consequently is more supportive of the great diversity of religious traditions and practices that characterizes 21st-century America. It also ensures that the government will not be embroiled in impossible decisions about which religious individuals deserve special accommodation from laws that bind everyone else.

Sherman was elected to the House of Representatives for the first federal Congress, and in 1791 he was appointed to the U.S. Senate. He made important contributions in debates over representation, executive power, revenue, the assumption of state debt, the proper scope of the national government, and, especially, the Bill of Rights. His views are particularly relevant for helping jurists and scholars properly interpret the First Amendment. The chapter concludes by considering his final days.

This chapter traces the actions on religion and religious freedom in the Continental Congress (1774-1789), the United States Constitutional Convention and ratification debates (1787-1789), the First Congress (1789), and the ratification debates over the Bill of Rights that followed. The chapter parses in detail what each of these national bodies said about religious freedom in the surviving records, analyzes each of the 25 drafts of the religion clauses crafted between 1787 and 1789 and the surviving debates about them, and then analyzes what is clear and not so clear in the final words of the First Amendment that were ratified in 1791: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”