Religion Supreme Court Cases

Most Supreme Court cases involving religion interpret the Free Exercise Clause or the Establishment Clause of the First Amendment to the U.S. Constitution. First, the Free Exercise Clause prevents the government from prohibiting the free exercise of religion. This means that an individual can practice their religion as they choose. However, the Supreme Court has held that neutral and generally applicable laws that burden religious practices are constitutional in most cases. Countering this Smith rule, the federal Religious Freedom Restoration Act and parallel laws in some states require courts to apply strict scrutiny to laws that substantially burden religious practices. The Smith rule controls when no RFRA applies.

Meanwhile, the Establishment Clause prohibits the government from making laws “respecting an establishment of religion.” The Founders thus intended to ensure the separation of church and state. Traditionally, courts often analyzed these cases under the Lemon test, which required a law to meet all three of the following requirements:

  • The law has a secular legislative purpose
  • The principal or primary effect neither advances nor inhibits religion
  • The law does not foster an excessive government entanglement with religion

However, Establishment Clause doctrine recently has shifted away from the Lemon test toward an emphasis on historical practices and understandings. Many of the most notable Establishment Clause cases have involved schools and public monuments or displays.

Below is a selection of Supreme Court cases involving religion, arranged from newest to oldest.

Kennedy v. Bremerton School District (2022)

Author: Neil Gorsuch

The Free Exercise and Free Speech Clauses protect an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression.

Carson v. Makin (2022)

Author: John Roberts

A state's non-sectarian requirement for otherwise generally available tuition assistance payments violated the Free Exercise Clause.

Fulton v. Philadelphia (2021)

Author: John Roberts

A law is not generally applicable under the Free Exercise Clause if it invites the government to consider the particular reasons for a person's conduct by creating a mechanism for individualized exemptions. When such a system of individual exemptions exists, the government may not refuse to extend that system to cases of religious hardship without a compelling reason.

American Legion v. American Humanist Ass'n (2019)

Author: Samuel A. Alito, Jr.

When time's passage imbues a religiously expressive monument, symbol, or practice with familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

Espinoza v. Montana Department of Revenue (2018)

Author: John Roberts

A state need not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools solely because they are religious.

Trinity Lutheran Church of Columbia, Inc. v. Comer (2017)

Author: John Roberts

Denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion. Thus, laws imposing special disabilities on the basis of religious status trigger the strictest scrutiny.

Town of Greece v. Galloway (2014)

Author: Anthony Kennedy

Legislative prayer, while religious in nature, is compatible with the Establishment Clause.

Burwell v. Hobby Lobby Stores, Inc. (2014)

Author: Samuel A. Alito, Jr.

The Religious Freedom Restoration Act (RFRA) permits a closely held for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by the federal Patient Protection and Affordable Care Act, based on the religious objections of the corporation's owners. More generally, protecting the free exercise rights of closely held corporations protects the religious liberty of the people who own and control them.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012)

Author: John Roberts

The Establishment and Free Exercise Clauses bar lawsuits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006)

Author: John Roberts

The Religious Freedom Restoration Act prohibits the federal government from substantially burdening a person's exercise of religion, unless the government demonstrates that the application of the burden to the person represents the least restrictive means of advancing a compelling interest.

McCreary County v. ACLU of Kentucky (2005)

Author: David Souter

When the text of the Ten Commandments is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message that goes beyond an excuse to promote the religious point of view.

Van Orden v. Perry (2005)

Author: William Rehnquist

While the Ten Commandments are religious, they also have a historical meaning. Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.

Locke v. Davey (2004)

Author: William Rehnquist

A state's exclusion of the pursuit of a devotional theology degree from its otherwise inclusive scholarship aid program did not violate the Free Exercise Clause.

Zelman v. Simmons-Harris (2002)

Author: William Rehnquist

A government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their genuine and independent private choice.

Santa Fe Independent School District v. Doe (2000)

Author: John Paul Stevens

A policy permitting student-led, student-initiated prayer at football games violated the Establishment Clause.

City of Boerne v. Flores (1997)

Author: Anthony Kennedy

Although Congress can enact legislation enforcing the constitutional right to the free exercise of religion, its power to enforce under Section 5 of the Fourteenth Amendment is only preventive or remedial.

Rosenberger v. Rector and Visitors of the University of Virginia (1995)

Author: Anthony Kennedy

In determining whether the government is acting to preserve the limits of the forum that it has created so that the exclusion of a class of speech is legitimate, there is a distinction between content discrimination and viewpoint discrimination. Content discrimination may be permissible if it preserves the purposes of the limited forum. Viewpoint discrimination is presumed impermissible when directed against speech that is otherwise within the forum's limitations. Also, the guarantee of neutrality toward religion is respected when the government, following neutral criteria and even-handed policies, extends benefits to recipients whose ideologies and viewpoints, including some that are religious, are broad and diverse.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)

Author: Anthony Kennedy

If the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral. It is invalid unless it is justified by a compelling interest and narrowly tailored to advance that interest.

Zobrest v. Catalina Foothills School District (1993)

Author: William Rehnquist

Government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit.

Lee v. Weisman (1992)

Author: Anthony Kennedy

Including clergy who offer prayers as part of an official public school graduation ceremony is forbidden by the Establishment Clause.

Employment Division v. Smith (1990)

Author: Antonin Scalia

A law prohibiting certain drug use is constitutional under the Free Exercise Clause if it is facially neutral and generally applied. More generally, the Free Exercise Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that their religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for non-religious reasons.

Allegheny County v. ACLU (1989)

Author: Harry Blackmun

A creche display violated the Establishment Clause when the creche angel's words endorsed a patently Christian message, and nothing in the creche's setting detracted from that message.

Lyng v. Northwest Indian Cemetery Protective Ass'n (1988)

Author: Sandra Day O’Connor

Incidental effects of government programs, which may interfere with the practice of certain religions, but which have no tendency to coerce individuals into acting contrary to their religious beliefs, do not require the government to bring forward a compelling justification for its otherwise lawful actions.

Edwards v. Aguillard (1987)

Author: William Brennan

A state cannot forbid teaching the theory of evolution in public schools unless accompanied by instruction in creation science, even if the law does not require teaching either theory unless the other is taught.

Goldman v. Weinberger (1986)

Author: William Rehnquist

Review of military regulations challenged on First Amendment grounds is far more deferential than constitutional review of similar laws or regulations designed for civilian society.

Bowen v. Roy (1986)

Author: Warren Burger

While the Free Exercise Clause affords an individual protection from certain forms of governmental compulsion, it does not afford an individual a right to dictate the conduct of the government's internal procedures.

Wallace v. Jaffree (1985)

Author: John Paul Stevens

A state law authorizing a one-minute period of silence in public schools for meditation or voluntary prayer violated the Establishment Clause.

Estate of Thornton v. Caldor, Inc. (1985)

Author: Warren Burger

A state law providing Sabbath observers with an absolute and unqualified right not to work on their chosen Sabbath violated the Establishment Clause.

Lynch v. Donnelly (1984)

Author: Warren Burger

A city's inclusion of a creche in its annual Christmas display in a private park, which also included secular symbols, did not violate the Establishment Clause.

Mueller v. Allen (1983)

Author: William Rehnquist

A statute does not violate the Establishment Clause when it allows state taxpayers to deduct expenses incurred in providing tuition, textbooks, and transportation for their children attending an elementary or secondary school, even if parents take the tax deduction for expenses incurred in sending their children to parochial schools.

Marsh v. Chambers (1983)

Author: Warren Burger

A state legislature did not violate the Establishment Clause by beginning each of its sessions with a prayer by a chaplain paid by the state with the legislature's approval.

Widmar v. Vincent (1981)

Author: Lewis Powell

A state's interest in achieving greater separation of church and state than is already ensured under the Establishment Clause is not sufficiently compelling to justify content-based discrimination against religious speech.

Thomas v. Review Board of the Indiana Employment Security Division (1981)

Author: Warren Burger

The guarantee of free exercise is not limited to beliefs that are shared by all the members of a religious sect.

Stone v. Graham (1980)

Author: Per Curiam

A state law requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the state had no secular legislative purpose and thus was unconstitutional.

Wisconsin v. Yoder (1972)

Author: Warren Burger

The state interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause and the traditional interest of parents with respect to the religious upbringing of their children.

Lemon v. Kurtzman (1971)

Author: Warren Burger

To comply with the Establishment Clause, a law must have a secular legislative purpose, its principal or primary effect must neither advance nor inhibit religion, and it must not foster an excessive government entanglement with religion.

Walz v. Tax Commission of City of New York (1970)

Author: Warren Burger

Granting property tax exemptions to religious organizations for properties used solely for religious worship did not violate the Establishment Clause of the First Amendment.

Epperson v. Arkansas (1968)

Author: Abe Fortas

A state could not prohibit teachers in state-supported schools and universities from teaching or using a textbook that teaches the theory of evolution.

Sherbert v. Verner (1963)

Author: William Brennan

A substantial infringement of an individual's right to religious freedom must be justified by a compelling state interest.

Abington School District v. Schempp (1963)

Author: Tom C. Clark

No state law or school board may require that passages from the Bible be read or that the Lord's Prayer be recited in public schools, even if students may be excused from attending or participating upon written request of their parents.

Engel v. Vitale (1962)

Author: Hugo Black

State officials may not compose an official state prayer and require that it be recited in public schools, even if the prayer is denominationally neutral, and even if students may remain silent or be excused.

Torcaso v. Watkins (1961)

Author: Hugo Black

A religious test for public office unconstitutionally invaded freedom of belief and religion.

McGowan v. Maryland (1961)

Author: Earl Warren

In light of the evolution of Sunday closing laws and their recent emphasis on secular considerations, most of these laws are of a secular rather than religious character.

Braunfeld v. Brown (1961)

Author: Earl Warren

A state law prohibiting the Sunday retail sale of certain enumerated commodities did not violate the Free Exercise Clause.

Zorach v. Clauson (1952)

Author: William O. Douglas

A program did not violate the First Amendment when it permitted public schools to release students during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises.

McCollum v. Board of Education (1948)

Author: Hugo Black

The utilization of a state's tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violated the First Amendment.

Everson v. Board of Education (1947)

Author: Hugo Black

The First Amendment does not prohibit a state from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools.

Girouard v. U.S. (1946)

Author: William O. Douglas

A foreign national who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, due to religious scruples, is unwilling to bear arms in defense of the U.S. may be admitted to citizenship.

West Virginia State Board of Education v. Barnette (1943)

Author: Robert H. Jackson

The action of a state in making it compulsory for children in public schools to salute the flag and pledge allegiance violates the First Amendment. The issue does not turn on the possession of particular religious views or the sincerity with which they are held. (This decision overturned Gobitis.)

Minersville School District v. Gobitis (1940)

Author: Felix Frankfurter

A regulation requiring that pupils in public schools salute the flag and recite the pledge of allegiance was constitutional as applied to children entertaining a conscientious religious belief that such obeisance to the flag is forbidden by the Bible. (This decision was overruled by West Virginia State Board of Education v. Barnette.)

Reynolds v. U.S. (1878)

Author: Morrison R. Waite

A party's religious belief cannot be accepted as a justification for committing an overt act made criminal by the law of the land.

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