Black-letter propositions
- 01
Neutral, generally applicable laws ordinarily survive incidental religious burdens, while targeting or comparable secular exceptions can trigger strict scrutiny.
- 02
Government religious practices are evaluated with attention to history, tradition, coercion, neutrality, and endorsement concerns in the applicable setting.
- 03
Government may not compel ideological speech or force private speakers to host a message when attribution and expressive autonomy are materially affected.
- 04
Disclosure or membership burdens on expressive association require fit to sufficiently important interests, with exacting or heightened review depending on the burden.
- 05
Public benefits generally cannot exclude otherwise eligible recipients solely because of religious status or protected religious use, subject to narrow historical exceptions.
Use this attack sequence under time
Frame the issue
Identify law, burden, and comparator.
Resolve the next checkpoint
Test neutrality in text, purpose, administration, and exemptions.
Resolve the next checkpoint
For establishment, identify practice, history, coercion, and government attribution.
Resolve the next checkpoint
For compelled speech, determine speaker, message, and perceived attribution.
Finish the conclusion
For association, identify expressive purpose and burden.
Common wrong turns
- A facially neutral label cannot hide religious targeting.
- Religious exercise does not automatically exempt a person from every neutral law.
- Government funding of private choice is not identical to direct government worship.
Worked example
A city allows individualized exemptions from a vaccination rule for secular hardship but categorically refuses to consider religious hardship.
The system may not be generally applicable because comparable secular exemptions undermine the asserted interest while religious requests are excluded. Strict scrutiny may apply.
Practice this topic
The religion clauses
The First Amendment begins with the two religion clauses: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Cornell says the Establishment Clause forbids an official religion and also prohibits government action that unduly favors one religion over another, or religion over non-religion, or non-religion over religion. It adds that some government action implicating religion is permissible and it is not clear how much the clause tolerates.
Cornell describes the Free Exercise Clause as reserving the right to practice any religious belief and protecting some actions taken on behalf of those beliefs so long as the practice does not run afoul of public morals or a compelling governmental interest. It says the Court held in Cantwell v. Connecticut in 1940 that the clause is enforceable against state and local governments.
Association and expression
The text also protects the right of the people peaceably to assemble and to petition the government, and Cornell's freedom of the press summary describes the press right as the protected right to publish freely. Government compulsion of speech is the flip side of the speech right, so ask whether the government is requiring a speaker to say something or restricting what the speaker may say.
Cornell notes scholars and Supreme Court opinions have contended the two religion clauses can conflict, so state which clause your fact pattern implicates before analyzing it.
Frequently asked questions
What is the controlling rule for free exercise, establishment, association, and compelled speech?+
Religious burdens turn on neutrality and general applicability, while establishment, compelled speech, and association require attention to government attribution, coercion, and expressive autonomy.
What does the Establishment Clause prohibit?+
Government laws respecting an establishment of religion, including action that unduly favors one religion over another or religion over non-religion, according to Cornell.
What does the Free Exercise Clause protect?+
The right to practice any religious belief and some actions on behalf of those beliefs, so long as the practice does not run afoul of public morals or a compelling governmental interest.
Do the religion clauses apply to states?+
Yes. Cornell says the Free Exercise Clause is enforceable against state and local governments under Cantwell v. Connecticut, decided in 1940.
What else does the First Amendment protect?+
Freedom of speech and of the press, the right to assemble peaceably and the right to petition the government for redress of grievances.
Can the two religion clauses conflict?+
Cornell notes that scholars and even Supreme Court opinions have contended they can, as in Thomas v. Review Board.
Primary sources
Cornell LII Wex: establishment clause↗Cornell LII Wex: free exercise clause↗Cornell LII Wex: freedom of the press↗Cornell LII: U.S. Constitution, First Amendment↗Governing text for free exercise, establishment, association, and compelled speech
Constitution of the United States, full text (National Archives) ↗