A Writer's Guide to the First Amendment: Religious Speech under the Free Exercise Clause

The Establishment Clause, which I discussed in last month's post, protects Americans against having to practice someone else’s religion. The Free Exercise Clause, on the other hand, gives Americans the right to affirmatively practice their own religion.

This is an unconditional protection where beliefs are involved. Religiously-motivated conduct is a different matter. If one person’s religious conduct has no direct effect on others or merely inconveniences them, the government cannot prohibit the religious conduct. If the conduct places someone in jeopardy, that conduct must give way. The Constitution protects the right to own a Bible, but it does not protect human sacrifice. Most people agree with this principal but disagree on where to draw the line between inconvenience and jeopardy.

In most cases, however, religious conduct falls within the “inconvenience” category. If you want to pass out religious pamphlets on the streets, it may not make pedestrians happy. But as long as you take precautions against littering, there isn’t a lot the government can do to stop you.

Let’s move to the school context. A teacher can’t assign an essay on the topic, “why Christianity (or Islam, or Buddhism, or atheism) is the only truth.” That’s forcing those with different beliefs to practice someone else’s religion. But the school also can’t discriminate against students who bring their own beliefs into an assignment as long as the student follows the assignment guidelines. Assume a Kindergarten teacher tells the members of her class to draw a picture of that child’s best friend so the teacher can post the drawings around the room for an open house. If one student decides his best friend is Jesus and draws a picture of a man hanging on a cross, the Free Exercise Clause requires the teacher to post it with the others. If a 9^th grade history teacher asks his class to write a 500-word essay about George Washington, free exercise doesn’t give students a pass to write about Jesus instead. But they can write about George Washington’s relationship with Christ.

In 1943 the Supreme Court said public schools cannot lock God out of the classroom,* and in 1962 it said they cannot invite him in.** So what is a school’s job as an attendance monitor? To watch the door when God enters and see if He comes in with a student or a teacher. Because that makes all the difference.

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* West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), struck down a law that required students to salute the flag. The Jehovah’s Witnesses believed that saluting anything other than God violated the second commandment. By striking down the law, the Supreme Court said, in essence, that students could bring their religious beliefs into the classroom with them.

** Engel v. Vitale, 370 U.S. 421 (1962), is the first case to strike down school-sponsored prayers.

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.