Freedom of Religion

By Elwyn A. Smith

Freedom of religion is a political principle that forbids government constraint on people in their choice of beliefs. Religious freedom requires also that one be free to act upon those beliefs. It therefore includes the freedom to worship, to print instructional material, to train teachers, and to organize societies for their employment. Thus, freedom of religion is closely conjoined with other freedoms, such as freedom of speech, freedom of the press, and freedom of assembly. It is recognized (as are the other freedoms) in a provision of the First Amendment to the Constitution of the United States:

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

In Western Europe and North America, freedom of religion is almost universally enjoyed, although its legal and institutional nature may differ from country to country. In some other parts of the world, freedom of religion is either severely circumscribed by state action or limited by social pressure.


For centuries people have been persecuted for their religious beliefs because of the political dangers posed by a new religion, or on the basis of religious principles, or for the sake of expedience. Tolerance for Christians and Jews under the early Roman Empire depended on the attitudes of emperors and local governors; in Christian Europe Jews, Muslims, and heretics were generally persecuted during the Middle Ages. During the Reformation pitched battles occurred between Catholics and Protestants; later, nonconforming Protestant sects were harassed by established Protestant churches. Persecution of Jews, atheists, and agnostics continued into the 20th century, while Protestant-Catholic conflict has persisted to this day in Northern Ireland. Communist countries until the late 1980s were mostly officially atheistic and made religious practice difficult.

Before the 18th century, instances of religious toleration were rare. Proliferating Hindu and Buddhist sects created a form of religious freedom in India, Japan, and China, and limited religious liberty was permitted under the Islamic caliphate. In Europe the Roman emperor Constantine issued (AD 313) the Edict of Milan granting freedom to practice the religion of one's choice; within a few years, however, Christianity had become the only legal religion. In 1598 the promulgation of the Edict of Nantes by Henry IV of France enabled the Huguenots to obtain a certain degree of religious freedom.

Religious freedom has become a matter of principle in the U.S. constitutional system, but it developed in the English-speaking world mainly for pragmatic reasons. In the 16th and 17th centuries efforts were made by the state to regulate totally the Church of England and to stamp out or severely constrain Catholics and Protestant sects that did not conform to the Church of England. Licensing laws, for example, were enacted in order to halt the publication of Puritan books and pamphlets--the Puritan John Milton published (1644) his Areopagitica in protest against such laws. The Puritans came to power after the English Civil War (1642-48). They in turn suppressed Catholics. Oliver Cromwell's New Model army was hostile to Presbyterians, who hoped to dominate both England and Scotland, and his victory favored toleration. The Restoration of Charles II in 1660 led to the reestablishment of the Church of England and the Clarendon Code (1661-65), which persecuted non-Anglicans. There was, however, an increasing realization that religious oppression in a society of sectarians was deleterious not only to domestic tranquillity but to commerce and trade as well. The Act of Toleration (1689), after the Glorious Revolution and the accession of William III and Mary II, opened the way to fuller development of religious freedom.

Escape from religious persecution was one reason for emigration to the New World, but early settlers were themselves generally unwilling to grant religious liberty for differing beliefs. In Virginia colonial authorities favored the Church of England (Anglican) as far as the English law would allow, and by 1758 a conflict had developed with Presbyterians, Baptists, and other denominations that claimed the liberty to preach and establish congregations. In 1779 the Anglican church was disestablished or separated from the state, and by 1786, Thomas Jefferson, James Madison, and George Mason had produced the Virginia Statute of Religious Liberty, which firmly set forth principles that separated state power from church affairs, a position that reflected the one taken almost a century before by John Locke in his Letter Concerning Toleration (1689). Madison drew heavily on this experience in fashioning the Bill of Rights, proposed in 1789.


The concept of separation of church and state is widely used to describe the legal and institutional nature of freedom of religion in the United States. It is not a widespread concept, nor does it necessarily indicate the presence or absence of religious freedom. England, Scotland, and Sweden, for example, have officially established churches but enjoy religious freedom.

It has been difficult literally to separate church and state in the United States. Churches are required to conform to building codes, fire regulations, and sanitation laws. Government is expected to decide whether a group claiming to be religious should be exempt from property taxes or whether the claim is fraudulent. The 1st Amendment pledges the federal government neither to favor nor to be hostile, but to be "neutral." (In the case of Cantwell v. Connecticut, 1940, the amendment's provision for freedom of religion was made binding on the states through the due process clause of the Fourteenth Amendment.) The struggle of the courts to be truly neutral in judging the disputes that come before them has long been the hinge of religious freedom in the United States. Courts have had to weigh the requirements of the "free exercise" and "establishment" clauses of the 1st Amendment against certain legal, social, and religious needs of society. Laws against polygamy, for example, were declared constitutional (Reynolds v. United States, 1878) despite Mormon religious claims based on the "free exercise" clause. The same clause, however, has protected prisoners' freedom of worship (Cruz v. Beto, 1972) and has struck down compulsory salutes to the flag in public school (West Virginia Board of Education v. Barnette, 1943). The Court has upheld a city's right to include a Nativity Scene in a public Christmas display (Lynch v. Donnelly, 1984). The "establishment" clause has been interpreted at various times to mean either that government cannot show preference to any particular religion or that there must be complete separation of church and state.

Large areas of dispute exist, and litigation is constantly in progress over such issues as government assistance to religiously sponsored schools, devotional practices in public schools, and the treatment of sectarians whose religious convictions are not easily accommodated by local law.

In education the Supreme Court has held that state reimbursement to parents for money spent to transport their children to parochial schools on the public bus system does not constitute an establishment of religion (Everson v. Board of Education, 1947). Public school boards may furnish secular textbooks for the use of children in religious schools (Cochran v. Louisiana State Board of Education, 1930). Public schools may cooperate administratively with churches concerned for the religious education of children, but public property may not be used, public funds may not be directly appropriated, and religion itself may not be promoted (McCollum v. Board of Education, 1948, and Zorach v. Clauson, 1952). In public schools a period of silence may be observed in which children may pray if they wish, but the schools may not conduct devotional exercises, compose prayers, read the Bible, or otherwise enter the field of religious instruction (Engel v. Vitale, 1962). In 1980, for example, the Court struck down a Kentucky law requiring the posting of the Ten Commandments in all classrooms (Stone v. Graham). The "equal access" law of 1984, however, gives students the right to hold religious meetings in public high schools outside of class hours.

In 1970 the Supreme Court reaffirmed the traditional exclusion of religious property from taxation (Walz v. Tax Commission, 1970). In other rulings it has held that government may extend the benefit of public loans to religious schools, provided the purpose of the buildings thus financed is secular.


Clark, Henry B., II, Freedom of Religion in America (1982)

Hammann, Louis, and Buck, Harry M., eds., Religious Traditions and the Limits of Tolerance (1987)

Levy, Leonard W., The Establishment Clause: Religion and the First Amendment (1986)

Murphy, Paul L. ed., Religious Freedom, 2 vols. (1990)

Smith, Elwyn A., Religious Liberty in the United States (1972)

Swomley, John M., Religious Liberty and the Secular State (1987).

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