The Law of Religious Freedom

What is the Truth About American Muslims?
The Law of Religious Freedom

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

Religion clauses of the First Amendment to the U.S. Constitution

1. Are all religious individuals and groups protected by the First Amendment to the U.S. Constitution? 

Yes. The Religion Clauses of the First Amendment guarantee religious liberty, or freedom of conscience, for all Americans — people of all faiths and none.

The Establishment Clause bars the government from advancing or inhibiting religion and ensures that government remains neutral.

The Free Exercise Clause and supporting laws, like the federal Religious Freedom Restoration Act, protect the right of religious individuals and institutions to follow their conscience in matters of faith.

Under the Free Exercise Clause as currently interpreted by the U.S. Supreme Court, government may not enact laws or regulations that target religious practice without demonstrating a compelling state interest and no less restrictive means of accomplishing that interest. When laws or policies apply to everyone and don’t target religious practices, but nonetheless burden those practices, the government is not required to justify such burdens with a compelling interest. The high court has also established that government may choose to afford religious liberty greater protection — an authority that is frequently exercised.

The twin constitutional guarantees of religious freedom for all citizens are good for religion and good for government.

The United States is today the most religiously diverse society in the world. The civic framework of religious freedom defined by the First Amendment enables people of all faiths and none to live together as equal citizens of one nation. Like other First Amendment freedoms, the rights to exercise one’s faith and to be free from governmental establishments of religion are fundamental rights that cannot be denied by majority vote or elections.

A majority may not impose its religious values on others, nor limit minority religious rights. The fact that a majority of Americans do not share the beliefs of a minority faith does not make those beliefs and practices any less protected. Unless all Americans are assured of religious freedom, the freedom of all Americans is in question.

2. What are the rights and civic responsibilities of religious citizens?

As a general rule, the government protects the rights of religious people and institutions to practice their faiths openly and freely without governmental interference unless the practice harms others or undermines other compelling societal interests. The government may not, however, compel adherence to, or participation in, the practices of any faith.

Good citizenship includes the civic duty to uphold religious freedom for all. Religious liberty rights are best guarded when each person and group takes responsibility to guard not only their own rights but the rights of others, including those with whom they deeply disagree. This respect for the rights of others is not indifference to theological or moral disagreement, but rather a civic virtue necessary to maintain peace in a religiously diverse society. All faiths are free to proclaim their vision of the truth, but they cannot look to government for help in doing so by either endorsing their religious truth or suppressing someone else’s.

All faiths are a religious minority somewhere in the United States: An attack on the religious freedom of one group today could easily become an attack on another group tomorrow.

3. What is the relationship of American law to religious laws?

Neither federal nor state governments may enforce or interpret religious law. This rule applies to courts, legislatures and administrative agencies — and it is a rule uniformly understood and respected. Courts may not, and do not, apply religious law in deciding contracts disputes, divorce or child custody cases or even in refereeing disputes over control of houses of worship. Even when deciding whether a particular governmental rule violates the free exercise of religion, courts refrain from deciding whether a party before them correctly understands his or her faith. They inquire only whether the claim is advanced sincerely.

4. Can American courts ever substitute religious law for civil law?

No. The Establishment and Free Exercise Clauses of the First Amendment to the U.S. Constitution prohibit American courts or other government agencies from substituting religious law for civil law. This prohibition applies to all religions equally. For example, a court may not say that since the parties belong to a faith that prohibits divorce (or provides for different post–divorce property arrangements than civil law) that religious law will govern the divorce.

5. Can American courts enforce the decisions of religious tribunals?

Yes, as long as the parties voluntarily and knowingly submit the matter to the jurisdiction of a religious tribunal, the tribunal follows certain minimum procedural safeguards, and doing so will not conflict with important public policies (e.g., the policy against awarding custody to a parent guilty of child abuse). Such an agreement — in effect an agreement to arbitrate — cannot require a secular court to decide theological questions (i.e., an agreement cannot require reference to a tribunal appropriately applying Islamic, Jewish, canon law or other religious law because that would require the secular court to decide whether a religious tribunal properly applied religious law).

This is hardly novel law. For decades, American courts have confirmed many of the decisions religious and other nongovernmental tribunals (such as a Jewish Beit Din) make regarding the parties that willingly come before them, always subject to review for violations of important public policies.

Secular courts have, in effect, encouraged religious bodies to refer internal disputes about governance, hiring of clergy and disputes over theology to religious tribunals precisely because courts cannot interpret the religious rules which are frequently at the heart of such disputes.

Jewish and Christian as well as Muslim communities have long had such tribunals in the United States, and individuals and organizations have the freedom to choose to submit their disputes to these religious bodies for resolution. Government courts often, but not always, confirm decisions of these tribunals so long as they adequately respect constitutional boundaries and protect the rights of all parties.

Editor's note: This publication, jointly produced by the Religious Freedom Education Project of the First Amendment Center and the Interfaith Alliance Islamic Understanding, is republished here with permission.

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