The Religion Guarantees: A Reference Guide to the United States Constitution

By Peter K. Rofes | Go to book overview

3
The Free Exercise Guarantee

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


INTRODUCTION

As we have seen, the typical set of circumstances raising the specter of the First Amendment’s anti-establishment guarantee finds government (be it national, state, or local) undertaking an activity that, in the view of some complaining party, places government too far on the side of religion (be it a particular religious faith, on the one hand, or religious institutions generally, on the other). Moment-of-silence practices at the beginning of the elementary or secondary public school day at which school officials encourage students to pray, a holiday crèche supported by municipal funds or located on municipal property, state tax dollars being directed to families to help defray the costs of participation in voucher programs that include religiously affiliated schools—such circumstances represent the stuff of typical contemporary anti-establishment scenarios. This is emphatically not to say, of course, that scenarios such as those set forth in the trio of examples invariably will be found to clash with the anti-establishment prohibition. It is to say, however, that such scenarios often prompt courts to confront core issues as to the meaning of the anti-establishment guarantee.

The typical set of circumstances implicating the free exercise guarantee differs considerably from that of the anti-establishment paradigm. In the free exercise arena, the most common complaint is that government has stepped over the constitutional line by placing its authority against religion and religious practices—almost invariably those religions and practices belonging to a minority of the citizenry. More specifically, the typical free exercise challenge seeks to take government to task for refusing to carve out an exception to a generally applicable law, for failing to accommodate the special, distinctive practices of a particular individual’s religious faith.

-123-

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The Religion Guarantees: A Reference Guide to the United States Constitution
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Series Foreword xi
  • Acknowledgments xv
  • 1 - The Origins of the Religion Guarantees 1
  • 2 - The Anti-Establishment Guarantee 29
  • 3 - The Free Exercise Guarantee 123
  • Bibliographic Essay 183
  • Table of Cases 201
  • Index 205
  • About the Author 213
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