Although the words ‘separation of church and state’ do not appear in the First Amendment, the establishment clause was intended to separate church from state. When the First Amendment was adopted in 1791, the establishment clause applied only to the federal government, prohibiting the federal government from any involvement in religion. By 1833, all states had disestablished religion from government, providing protections for religious liberty in state constitutions. In the 20th century, the U.S. Supreme Court applied the establishment clause to the states through the 14th Amendment. Today, the establishment clause prohibits all levels of government from either advancing or inhibiting religion.

The establishment clause separates church from state, but not religion from politics or public life. Individual citizens are free to bring their religious convictions into the public arena. But the government is prohibited from favoring one religious view over another or even favoring religion over non-religion.

Our nation’s founders disagreed about the exact meaning of “no establishment” under the First Amendment; the argument continues to this day. But there was and is widespread agreement that preventing government from interfering with religion is an essential principle of religious liberty. All of the Framers understood that “no establishment” meant no national church and no government involvement in religion. Thomas Jefferson and James Madison believed that without separating church from state, there could be no real religious freedom.

The first use of the “wall of separation” metaphor was by Roger Williams, who founded Rhode Island in 1635. He said an authentic Christian church would be possible only if there was “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.” Any government involvement in the church, he believed, corrupts the church.

Then in 1802, Thomas Jefferson, in a letter to the Danbury Baptist Association, wrote: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

The Supreme Court has cited Jefferson’s letter in key cases, beginning with a polygamy case in the 19th century. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause.

In its 1971 decision Lemon v. Kurtzman, the Supreme Court set forth a three-pronged inquiry commonly known as the Lemon test. To pass this test, thereby allowing the display or motto to remain, the government conduct (1) must have a secular purpose, (2) must have a principal or primary effect that does not advance or inhibit religion, and (3) cannot foster an excessive government entanglement with religion.

No, but multiple pieces of artwork in the Supreme Court building, including the courtroom, show the historical significance of the Ten Commandments in a context that puts it on par with other influential laws from numerous cultural backgrounds. None of those artworks includes the actual text of the Ten Commandments, although four commandments are partly visible in Hebrew letters in one image. It is perhaps notable that those specific commandments, Nos. 6 to 10, are totally secular in nature, unlike the first few commandments, which are explicitly sectarian.

Courtroom friezes portray Moses as one of 18 historic lawgivers. He is given equal prominence with lawgivers from a variety of religious backgrounds, including Islam, Confucianism, sun worship, and both Egyptian and Greco-Roman paganism. While Moses is shown holding the tables of the Ten Commandments, Muhammad is shown holding the Quran, the primary source of Islamic law, and the first pharaoh, Menes, is shown holding the ankh, an Egyptian mythological symbol representing eternal life. Other figures are shown holding secular legal documents. England’s 12th-century King John is shown holding the Magna Carta, which he signed, while the Dutch legal scholar and statesman Hugo Grotius is shown holding his 1625 book, Concerning the Law of War and Peace, one of the first books on international law.

The frieze also includes Greco-Roman-style allegorical figures, including Equity, Philosophy, Right of Man, Liberty and Peace. To see an actual image of this frieze, visit this page on the Supreme Court’s Web site.

A separate frieze at the Supreme Court shows a single tablet containing the Roman numerals 1 to 10, but no text. The Ten Commandments are usually portrayed as being on two tablets of stone; so the single tablet with Roman numerals does not necessarily represent the Ten Commandments, and has been interpreted to represent ancient laws generally. The bottom of one door to the courtroom has a carving of two tablets with the Roman numerals 1 to 10, but no text.

Sculptures above the east entrance to the Supreme Court building again portray Moses (holding blank tablets) as one of three major Eastern lawgivers, the others being Confucius and Solon, portrayed with numerous other allegorical figures and the fable of the Tortoise and the Hare. Moses is at the center of this group, above the words “Justice the Guardian of Liberty,” but according to a description of the East Pediment on the Supreme Court’s Web site, this art pays tribute to great civilizations and their laws, without specific mention of the Ten Commandments.

Other prominent art at the main entrance to the Supreme Court building includes no biblical references, and shows only the secular history of law. Images from that entrance and other parts of the Supreme Court building are online here.

Thus, the context of the portrayals of the Ten Commandments in Supreme Court art is arguably consistent with the Court’s treatment of Nativity scenes on public property in Lynch v. Donnelly (1984). Under that precedent, a predominantly religious display on public property violates the First Amendment principle against the state establishing religion, but a display that combines religious and secular elements to present a secular message is often allowable.

The question of whether a religious display on government property is constitutional requires a multi-step analysis. First, one should ask, who is funding and erecting the display? If a private group wants to place a religious monument on public property, then a free-expression analysis should be conducted, looking into such things as the type of forum in question. If, as in this case, a government entity is attempting to post a religious document, then a separate line of questions must be raised.

Religious displays on public property can be legal, but they must pass constitutional muster by not violating the First Amendment’s establishment clause, which requires government “neutrality” towards religion. In deciding whether or not particular religious displays violate the establishment clause, courts look to two Supreme Court tests, the Lemon test and the endorsement test.

The Lemon test poses three questions: 1) Did the state actor have a secular purpose in posting the documents; 2) was the primary effect of the action to advance or promote religion; and 3) was there excessive entanglement between government and religion in the given activity? The government conduct must survive all three of these prongs if the action is to survive constitutional muster.

A more recent test that has gained popularity in the courts is the endorsement test. Justice Sandra Day O’Connor first outlined this test in her concurring opinion in the 1983 decision Lynch v. Donnelly, which involved a city-owned holiday display containing religious elements in a Pawtucket, R.I., park. This approach examines the following questions: Did the state actor subjectively intend to promote religion through its actions, and would the reasonable observer interpret the actions of the state as an endorsement of religion?

The elements of both tests should be examined before a government representative posts any religious documents or engages in other forms of religious expression.

Two cases decided in June 2005 by the U.S. Supreme Court illustrate how even the high court can reach very different conclusions in ruling on seemingly similar religious-display cases. Both McCreary County v. ACLU and Van Orden v. Perry involved displays of the Ten Commandments on public property. In writing for the 5-4 majority in McCreary, Justice David Souter used the Lemon test and determined that the Ten Commandments displays in the two Kentucky courthouses conveyed a religious message to the public, failing to satisfy the first prong of the Lemon test that the display must have a secular purpose. Therefore, the Court majority found the displays in McCreary were unconstitutional.

In Van Orden, which was decided on the same day as McCreary, the high court ruled that a Ten Commandments monument on the Texas State Capitol grounds was constitutional. Chief Justice William Rehnquist, in writing the plurality opinion for the Court, was quick in dismissing the Lemon test as the appropriate way to evaluate the case. (The vote was 4-1-4.) Instead, Rehnquist focused on the nature and setting of the monument. The monument was part of a larger display containing 17 monuments and 21 historical markers celebrating the “people, ideals, and events that compose Texan identity.” In determining that the monument was of a secular purpose, and therefore constitutional, Justice Stephen Breyer in his concurring opinion noted that because the monument had been on display for 40 years before being challenged, it “suggests more strongly than can any set of formulaic tests that few individuals, whatever their system of beliefs, are likely to have understood the monument amounting, in any significantly detrimental way, to a government effort to favor a particular religious sect.”

Later that same year, the 6th U.S. Circuit Court of Appeals held in ACLU v. Mercer County that another Kentucky County courthouse Ten Commandments display was constitutional. In this case, a Mercer County resident had requested permission to hang a display titled “Foundations of American Law and Government” in the courthouse. The display included the Ten Commandments, Mayflower Compact, Declaration of Independence, Magna Carta, Star-Spangled Banner, Bill of Rights and other historical documents. The 6th Circuit affirmed the lower court’s ruling that because the Ten Commandments was part of an exhibit and was not, in any way, more prominently displayed than any of the other documents, the display had a secular purpose in educating the public rather than endorsing religion.

It depends. Determining the constitutionality of religious holiday displays requires an analysis that is heavily “fact-driven,” meaning the slightest change in facts could completely change whether or not a holiday display is constitutional. Three U.S. Supreme Court cases deal specifically with this question. In Lynch v. Donnelly (1984) the Court held that a city-sponsored crèche in a public park did not violate the establishment clause because the display included other “secular” symbols, such as a teddy bear, dancing elephant, Christmas tree, and Santa Claus house. In Allegheny v. ACLU(1989) the Court found that a Nativity scene in a county courthouse accompanied by a banner that read “Gloria in Excelsis Deo” (“Glory to God in the Highest”), was unconstitutional because it was “indisputably religious,” rather than secular, in nature. In 1995 in Capitol Square Review & Advisory Board v. Pinette the Court held that a private group of individuals (in this case the Ku Klux Klan) could erect a cross in the Ohio statehouse plaza during the holiday season. In reaching its decision, the Court heavily relied on the fact that the KKK had requested permission to display the cross in the same manner as any other private group was required to do, that the public park had often times been open to the public for various religious activities, and that the KKK expressly disclaimed any government endorsement of the cross with written language on the cross.

Despite the Supreme Court's providing these baseline principles in religious holiday display cases, courts around the country have a difficult time in their application. For example, the 1st U.S. Circuit Court of Appeals held that a holiday display in a government building violated the establishment clause because the display lacked sufficient secular content. (Amancio v. Town of Somerset, 28 F. Supp. 2d 677 (1st Cir. 1998).) Included in the display was a Nativity scene, Christmas tree and Santa Claus. Contrast that decision with a ruling out of the 8th Circuit in which it was held that a holiday display that contained candy canes, Christmas tree, snowman, wrapped gifts and a crèche was constitutional. (ACLU v. City of Florissant, 186 F.3d 1095 (8th Cir. 1999).) The 1st Circuit and 8th Circuit clearly are split, illustrated by these two decisions, in how to interpret Lynch and Allegheny.

Some circuits, however, have applied the trio of cases with great consistency. For example, the 3rd Circuit has held that a display depicting a Hanukkah menorah, Christmas trees, Kwanzaa candles, a sled and Frosty the Snowman, among other things, was constitutional. (ACLU v. Schundler, 168 F.3d 92 (1999).) This court adhered strictly to the decisions in Lynch and Donnelly in reaching its decision. The 2nd Circuit also reached a similar decision in a holiday display case that included a crèche, Christmas tree, Hanukkah menorah, and a posted sign that stated that the display was privately sponsored. (Elewski v. City of Syracuse, 123 F. 3d 51 (2nd Cir. 1997).)

How can an individual ensure that a religious holiday display that she erects is constitutional? First of all, any holiday display erected on private property is immune from any constitutional challenges. Secondly, if an individual or group of individuals decide to set up a holiday display on public property (i.e. parks, courthouses, town halls, etc) he should petition the appropriate authorities for authorization to erect such a display. If the site has been home to a variety of religious displays in the past, it is likely permission will be granted.

Individuals do not forfeit First Amendment protections when they accept public-sector employment. Public employees also can speak about religious matters in the workplace to a certain degree, particularly if the speech is not communicated to the general public. However, the employer has a right to ensure that the employee’s religious speech does not disrupt office work or otherwise become distracting to other employees to the extent that it hinders productivity. Furthermore, no employee has the right to engage in religious harassment or create a hostile work environment. If the fellow employee tells his religious-minded co-worker to stop proselytizing, the co-worker should desist from further conversations on the subject.

The free-exercise clause of the First Amendment says the government may not prevent individuals from freely practicing their religious faith. Also, Title VII of the Civil Rights Act of 1964, the major federal anti-discrimination law that covers virtually all public and private employers with 15 or more full-time employees, generally prohibits an employer from discriminating against employees on the basis of race, color, sex, national origin or religion. Under Title VII, an employer must “reasonably accommodate” an employee’s religious practice unless doing so would create an “undue hardship on the conduct of the employer’s business.”

Congress didn’t define “reasonably accommodate” and “undue hardship,” so that was left to the courts. In the 1977 ruling Trans World Airlines v. Hardison, the Supreme Court said requiring an employer “to bear more than a de minimis (minimal) cost” to accommodate an employee’s religious practice is an undue hardship. In 1986, the Court ruled that an employer meets its obligation to reasonably accommodate an employee’s religious practice when it demonstrates that it has offered a reasonable alternative to work requirements interfering with faith. See Ansonia Board of Education v. Philbrook.

Yes. According to the White House, faith-based organizations that receive federal funds may discriminate in employment based on religion.

Charitable-choice provisions found in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWOR) contain no prohibitions against religious discrimination in employment by religious service providers. Though the Civil Rights Act of 1964, otherwise known as Title VII, prohibits employment discrimination based on religion, it contains an exception for religious institutions. Writing for the Center for Public Justice, Carl Esbeck of the Christian Legal Society explained that such exemptions are necessary if faith-based organizations (FBOs) are to successfully participate in social service programs. According to Esbeck, “[p]rotecting the autonomy of FBOs was done to enable them to succeed at what they do so well, namely help the poor and needy, and to get FBOs to participate in government programs, something FBOs are far less likely to do if they face compromising regulation.”

Yet disagreement continues over both the constitutionality of such exemptions and the civic wisdom of such policies. This is easily seen in recent legislative battles between House and Senate bills over the CARE legislation, a bill broadening access to government funding of FBOs. The House passed the original version, supported by the White House, with an exemption allowing FBOs to discriminate in employment based on religion. The Senate version contained no such exemptions, or even any expansion of access, but instead provided greater tax breaks for charitable donations. Several lawsuits have also been filed over charitable choice and the employment-discrimination exemptions.

While most agree that FBOs currently may discriminate on the basis of religion, the White House Web site provides the following caveat:

“[C]ertain Federal laws and regulations, as well as State and local laws, may place conditions on the receipt of government funds. For example, some employment laws may prohibit discrimination on the basis of religion. Or a State or local law may prohibit discrimination on the basis of sexual orientation or require certain organizations to provide benefits to employees' unmarried domestic partners. Some of these laws may exempt religious organizations, while others may not. Organizations with further questions about this issue may wish to consult a lawyer to find out about the specific requirements that apply to your organization and any rights you may have under the Constitution or Federal laws.”

Yes. The Internal Revenue Service requires that 501(c)(3) nonprofit organizations (a category that includes tax-exempt religious organizations) refrain from partisan politicking if they are to receive tax-exempt status. The U.S. Circuit Court of Appeals for the District of Columbia held in Branch Ministries v. Rossotti (2000) that a religious institution had no affirmative right to a tax exemption and that the IRS was justified in conditioning a church’s tax-exempt status on its willingness to abstain from political advocacy. In 1992, the church took out a newspaper ad to ask Christians to vote against then-governor Bill Clinton because of his political stances, also including a request for donations to the ministry. The court determined that this sort of political advocacy was not central to the church’s religious practice, and therefore restraining from such speech was not a burden on its free-exercise rights.

The government may also condition tax exemptions on compliance with government policies. In the Supreme Court's 1983 decision in Bob Jones University v. United States, the university's tax-exempt status was revoked because the school enforced racially discriminatory policies. Questions remain as to whether legislatures or administrative agencies can condition exemptions on an organization’s promise not to discriminate on the basis of religion or sexual orientation, aspects of which might legitimately relate to the organization’s religious beliefs.

They may engage in lobbying activities as long as the lobbying does not form a “substantial part” of their activities. According to the IRS, lobbying is “attempting to influence legislation” and “an organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.” The IRS says it “considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.” According to the courts, devoting 5% of an organization’s time and effort to political activity is not considered substantial within the meaning of the IRS Code. See Seasongood v. Commissioner.

Not as part of their federally funded programs. According to Title 45, Part 87, Section 2, Subsection C of the Code of Federal Regulations, “organizations that receive direct financial assistance from the [federal government] may not engage in inherently religious activities, such as worship, religious instruction, or proselytization, as part of the programs or services funded with direct financial assistance from the [government].”

Title 45, Part 87, Section 2, Subsection C of the Code of Federal Regulations states that “if an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded with direct financial assistance from the [government], and participation must be voluntary for beneficiaries of the programs or services funded with such assistance.”

No. Title 45, Part 87, Section 2, Subsection E of the Code of Federal Regulations says that “an organization that participates in programs funded by direct financial assistance from the [government] shall not, in providing services, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.”

Not necessarily. The Court’s holding was based on the fact that Nebraska’s practice did not seem likely to lead to an “establishment of religion.” Given a different set of facts, a majority of the justices might well have discerned such an unconstitutional establishment. For instance, courts are stricter in their application of the establishment clause when it comes to public schools, or other arenas where the government has the opportunity to influence a captive audience of impressionable youngsters. What seems clear from Marsh is that the Court is willing to defer to traditional practices that bear a religious element as long as they do not appear to coerce the unwilling or the highly impressionable into some form of religious participation or belief. The Marsh reliance on tradition and a failure to prove any establishing tendency could make a huge difference if the Supreme Court decides to hear a challenge to the constitutionality of the national motto (“In God We Trust”), or the wording of the Pledge of Allegiance.

In 2002 the Supreme Court ruled in the case of Zelman v. Simmons-Harris that, under certain conditions, communities may create a voucher program for use at a variety of schools without violating the U.S. Constitution, even if some of the vouchers are redeemed at religious schools.

Citing precedent, Chief Justice William Rehnquist’s plurality opinion looked first at the purpose of a voucher program: It must exist for a valid secular purpose and not to promote any particular religion, he wrote.

The Court's analysis then focused on whether a voucher program advances religion. The justices agreed that a neutral benefit program could be constitutional, even if religious institutions received some of the funds. Arguments occurred over the specifics of what constitutes a neutral program, and whether the funds could go directly to a religious group or if they must pass first through a private individual who would decide how to allocate the resources.

In both the plurality and concurring opinions, a majority of the Court focused primarily on whether or not a government benefit program was neutral on its face in matters of religion. In his plurality opinion in Zelman, Rehnquist said:

"[Previous cases] make clear that where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause."

What does all of this mean? The Court indicates that communities must consider several factors when creating a voucher program:

1. Is the proposed voucher program neutral with respect to religion? If the plan favors one religion over another, or non-religion over religion, then it will violate the establishment clause of the First Amendment.
2. Will the vouchers be made available to students based on religiously neutral criteria? That would mean deciding who gets a voucher must be based on such non-religious bases as financial need or attendance at poorly performing school, etc. Also, the schools that are allowed or not allowed to receive vouchers must similarly be appraised on the basis of secular criteria, such as academic performance and ability to adhere to safety codes.
3. The voucher must be awarded to an individual, not the religious institution, and the individual must, through private choice, make the decision as to where the voucher is to go. The government cannot influence this decision. This is necessary to demonstrate the government voucher is going to benefit the individual — as opposed to benefiting religion. This last element was by far the most contentious issue for the justices in the Zelman decision.

While all of the above material focuses on whether a voucher program is legal under the federal establishment clause, states must also look at their state constitutions. Most states have their own constitutional prohibitions against providing public funds to religious entities. These restrictions are often more restrictive than the U.S. Constitution.

This issue has come to the forefront in Colorado, where, in May 2003, a group of taxpayers sued the state over a newly implemented voucher program. Many of the arguments are based on Colorado’s constitutional prohibitions against allowing public money to go to religious entities.

Other issues are also involved, many revolving around policy questions and political realities.

The U.S. Supreme Court, in Elk Grove Unified School District v. Newdow, stated that “in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.” Consequently, the question at hand has not been dealt with by the Supreme Court or the federal district courts.

The state courts that have handled this issue, for the most part, have not restricted the non-custodial parents from exposing their children to a different religion. The courts will generally steer clear of this issue “except where there is a clear and affirmative showing that the conflicting religious beliefs affect the general welfare of the child” (Munoz v. Munoz, 489 P.2d 1133, 1135 (WA., 1971)).

The ambiguous language from this Washington state case, one of the first to address this issue, has caused other states to interpret what “affects the general welfare of the child” in many different ways. When determining custody, the courts look at and weigh many different factors to determine what is in the child’s best interest. Examples of these factors can include the emotional ties between the parent and the child, the physical and mental health of the parents and/or the ability of the parents to provide for the child's material needs. Religion may be one of the factors considered, but is generally only considered if it has, or will have, a clear and substantial bearing on the welfare of the child. As various courts have stated, a showing of substantial harm must be demonstrated before a non-custodial parent's right to expose the child to his or her religion will be restricted.

State courts have struggled to define what constitutes substantial harm. Very few have found demonstrated substantial harm in the cases they have heard. What courts have said, as in Khalsa v. Khalsa, 107 N.M. 31, 36 (Ct. App. 1988), is that “a custodial parent's general testimony that the child is upset or confused because of the non-custodial parent's religious practice is insufficient to demonstrate harm [See Felton v. Felton, 383 Mass. 232 (1981); Munoz v. Munoz]. Further, general testimony that the child is upset because the parents practice conflicting religious beliefs is likewise insufficient.” Thus a very strong showing of harm must be presented.

An example of this is the case of LeDoux v. LeDoux, 234 Neb. 479 (Neb. 1990) in which the Nebraska Supreme Court upheld a trial court’s decree ordering the father, a Jehovah’s Witness, “to refrain from exposing or permitting any other person to expose his minor children to any religious practices or teachings inconsistent with the Catholic religion.” When they married and had their children, the LeDouxs were both Catholics. At the time of the divorce Edward Ledoux was a Jehovah’s Witness and insisted that the children be involved in his religious activities. The mother, Diane LeDoux, presented testimony from a clinical psychologist who testified that one of the children was under serious stress and was having a maladjustment problem. The psychologist indicated “that conflicts in the Catholic and Jehovah's Witnesses religions were an obvious contributing factor to the stress felt” by the child.

After weighing all the evidence, “the trial court concluded that exposing the minor children to more than one religious practice would have a deleterious effect upon the minor children,” and the Nebraska Supreme Court agreed. (Other examples: Funk v. Ossman, 150 Ariz. 578 (Ct. App. 1986), Kendall v. Kendall, 426 Mass. 238 (1997).)

Because a parent’s constitutional right to practice his or her religion freely could potentially be restricted, a showing of substantial harm to the minor children is required. Substantial harm is a high standard and “requires a clear showing that a parent's religious practices have been or are likely to be harmful to the child” (Kirchner v. Caughey, 326 Md. 567, 576 (Ct. App. 1992)).

The Supreme Court has been clear that the simple act of taxation is not in and of itself a violation of either the First Amendment's free-exercise or establishment clauses. This does not mean, however, that it is impossible for a tax to violate either or both of the First Amendment’s religion clauses. If a tax were targeted in discriminatory ways or became so oppressive that it substantially constrained a religious group's ability to function, then it could possibly violate the free-exercise clause. Likewise, the administrative details of enforcing a taxation scheme could become so intricate and require so much interaction between the state and a religious organization that a court would find sufficient entanglement to violate the establishment clause, as interpreted through the Lemon test.

No, it is likely that prison officials could refuse this request, even if motivated by sincere religious belief, because of legitimate safety concerns. The courts grant a good deal of discretion to prison officials when it comes to safety considerations. Safety is a paramount concern in prisons and is termed a legitimate penological interest.

Congress has different constitutional sources for its authority. If the Supreme Court denies it the power to create a law under one source, Congress may still be able to accomplish its goal using a different source. Congress justified its passage of RFRA under a section of the 14th Amendment that gives it the power to pass laws deemed necessary to protect the liberties ensured by that amendment, which would include the First Amendment’s guarantee of “free exercise of religion.” The Court held that under that section Congress was only permitted to develop laws that would enforce the standard of protection deemed necessary by the Court itself, as opposed to the stricter general standard embodied in RFRA.

RLUIPA’s justification was rooted in Congress’ power to regulate matters touching on interstate commerce. The Supreme Court has only rarely overturned congressional acts based on the interstate-commerce clause, so it is possible (though far from a certainty) that the Court would find a sufficient tie to interstate commerce to justify Congress in creating RLUIPA. It is important to note that even if the Court finds that Congress acted from the proper source of authority, the act might still be found to violate the establishment clause and therefore be unconstitutional.

Whatever legal standard is used to resolve inmate freedom-of-religion lawsuits, some in society ask: “Who cares?” Many people believe that inmates forfeited their rights when they committed their crimes. But others believe society should try to encourage inmates to practice their religious faith.

“Let’s face it. Most inmates do get out of prison at some point,” says David Fahti, a prison expert. “And the single best predictor of whether an inmate will do OK when they reenter society is whether they maintain community ties when they are in prison.

“There are many reasons why we should recognize the religious rights of inmates,” Fahti says. “Our country was founded on principles of religious freedom. Many people came to this country to flee religious persecution in other countries. As long as a prisoner’s practice of religion does not interfere with prison security, there is simply no reason to deny an inmate’s religious rights.

Adds Keith Defasio, a prisoners'-rights advocate, “Even though inmates are incarcerated for crimes, they should still be entitled to their constitutional dignities. Where are we as a democracy if we can give and take away constitutional rights?”

Yes. So far, two federal district courts have considered the act’s land-use provisions. (Additional courts have considered RLUIPA’s institutionalized-persons provisions.) Both in Freedom Baptist Church v. Township of Middletown and Charles v. Verhagen, the courts found RLUIPA to be a constitutional exercise of congressional power. A number of other cases are currently pending, and it is likely that several will produce rulings from the various federal appellate courts. Once a case with convenient facts reaches the appropriate stage, the Supreme Court will almost certainly take the opportunity to rule definitively on RLUIPA’s constitutionality.

Cities have the right to zone specific areas for religious purposes, but they do not have the right to restrict the number of churches or religious institutions within their boundaries. Under RLUIPA, religious institutions are given some protection against zoning laws. Though the act does not completely exempt churches from zoning laws, officials must have a compelling interest in restricting a church or other religious institution from being built in a specific area.

Some fear that allowing an overabundance of religious institutions in a city will damage the economy because religious organizations are exempt from property taxes. Chris Hoene, a research manager for the National League of Cities, said some cities had become inventive in devising ways to collect money from churches. For example, some cities have begun to tax religious organizations’ profit-generating enterprises, including publishing and gift-shop sales.

No Supreme Court ruling explicitly establishes a position on religious exemptions to state-compelled vaccination. However, it is clear from the Court’s establishment-clause rulings that it is unlikely for all such exemptions to be found in violation of the First Amendment. What is less clear is whether or not the Court would find the free-exercise clause to mandate the inclusion of religious exemptions. For this reason, the status of religious exemptions to state-compelled vaccinations is still very much unclear. What the Court has found, however, is that a state has the authority to require its citizens to receive certain inoculations. This authority was established in 1905 in Jacobson v. Massachusetts, where the Court ruled that Massachusetts had the authority to require its citizens to be inoculated against smallpox.

All states currently require children to follow at least some form of standardized immunization schedule in order to be enrolled in public school. Vaccinations often required by this schedule include those against diphtheria, whooping cough, and the measles. Of the 50 states, all offer some exemptions for religious opposition to vaccination except Mississippi and West Virginia.

States generally apply one of three standards for evaluating religious-exemption requests.

1. Parents requesting the exemption must be a member of a recognized religious organization that is opposed to vaccination.
2. Parents must demonstrate a sincere and genuinely held religious belief that opposes one or all vaccinations.
3. Parents must simply sign a statement confirming that they are religiously opposed to vaccination and would like an exemption.

No, all states include a medical exemption in their vaccination policy, and almost half of the states offer philosophical exemptions in addition to their medical and religious accommodations.

Under current constitutional law, the government can impose restrictions on a religious belief or practice as long as the law in question applies to everyone and does not target a specific religion or religious practice.

No. In Braunfeld v. Brown (1961) the Supreme Court held that observance of a Sabbath was an individual’s choice, and that a person was not discriminated against or disadvantaged by the state for its decision to require the closing of businesses on a day other than that individual's Sabbath. States may choose to allow exemptions for certain individuals, but they may not be required to do so.

Yes. Where the state determines that a day of rest would be desirable in some kinds of businesses and not in others, they are permitted to restrict only those that they deem to be necessary. Likewise, the state may decide to forbid or limit the sale of certain items (such as alcohol) on any given day, so long as the decision is justified by some secular purpose instead of a religious one. In a 1999 decision, Harris County, Texas v. CarMax Auto Superstores, Inc., the 5th U.S. Circuit Court of Appeals upheld a Texas law that forbade car dealerships from being open on consecutive Saturdays and Sundays. Effectively this forced the business owners to choose one day or the other as a day of rest for their employees, though it did not dictate any particular preference as to which one should be adopted. The court denied that the law unfairly discriminated against car dealers or established any sort of preference for religion as opposed to no religion.

The Supreme Court has declined to address this issue, though the lower courts strongly favor the constitutionality of such holidays. The 9th Circuit in 1991 upheld legislation making Good Friday a state holiday in Cammack v. Waihee, reasoning that the absence of a major traditional holiday in the spring created a state interest in decreeing one, and that it made sense for the legislature to select a day that would already be used by the majority of citizens as a holiday. This decision set the stage for the 4th and 6th Circuits to issue similar rulings. The 7th Circuit disagreed in Metzl v. Leininger (1994), holding that because Good Friday is an exclusively Christian holiday that has in no way been secularized, as have Christmas and Easter, its elevation to the status of a state holiday was unconstitutional because it sent a message of endorsement to the public, even if the practical result was neither to advance nor inhibit religion. The holding in Metzl did allow for a finding of constitutionality, however, if the legislature would merely make the effort to advance a secular reasoning for the case.

Although it has attempted to create standards to differentiate religious beliefs and actions from similar nonreligious beliefs, the Supreme Court has never articulated a formal definition for religion. Given the diversity of Americans' religious experience since the Constitution was created, a single comprehensive definition has proved elusive.

In 1890, the Supreme Court in Davis v. Beason expressed religion in traditional theistic terms: “[T]he term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.”

In the 1960s, the Court expanded its view of religion. In its 1961 decision Torcaso v. Watkins, the Court stated that the establishment clause prevents government from aiding “those religions based on a belief in the existence of God as against those religions founded on different beliefs.” In a footnote the Court clarified that this principle extended to “religions in this country which do not teach what would generally be considered a belief in the existence of God … Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”

In its 1965 ruling United States v. Seeger, the Court sought to resolve disagreement between federal circuit courts over interpretation of the Universal Military Training and Service Act of 1948. The case involved denial of conscientious objector status to individuals who based their objections to war on sources other than a supreme being, as specifically required by the statute. The Court interpreted the statute as questioning “[w]hether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption. Where such beliefs have parallel positions in the lives of their respective holders we cannot say that one is ‘in relation to a Supreme Being’ and the other is not.”

Welsh v. United States represented another conscientious-objector case under the same statute. The Court in this 1970 decision went one step further and essentially merged religion with deeply and sincerely held moral and ethical beliefs. The Court suggested individuals could be denied exemption only if “those beliefs are not deeply held and those whose objection to war does not rest at all upon moral, ethical, or religious principle but instead rests solely upon consideration of policy, pragmatism, or expediency.”

Following the expansive view of religion expressed in Seeger and Welsh, the Court in its 1972 ruling involving the Amish and compulsory school attendance suggested a shift back, to a more exclusive definition. The majority opinion in Wisconsin v. Yoder indicated that the free-exercise clause applied only to “a ‘religious’ belief or practice,” and “the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.”

The Court in its 1981 decision Thomas v. Review Board further expressed its reluctance to protect philosophical values. The Indiana Supreme Court had ruled that a decision by a Jehovah's Witness to quit his job after he was transferred to a weapons-making facility was a “personal philosophical choice rather than a religious choice” and did not “rise to the level of a first amendment claim.” In overturning the Indiana decision, Chief Justice Warren Burger cautiously stated, “[o]nly beliefs rooted in religion are given special protection to the exercise of religion.” The Court found the worker's actions to be motivated by his religious beliefs.

Few have been satisfied by the Court’s attempts to define religion. Many of the Court’s definitions use the word “religion” to describe religion itself. In other cases, the Court’s explanations seem to provide little useful guidance.