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12.2 The First Amendment: Freedom of Religion

The First Amendment laid a milestone of progress in individual freedom, by its inclusion of the clause, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Indeed, freedom of religion, is specially an American civil liberty by origin. From the terms of the First Amendment it is clear that the government is forbidden to establish or help religion. Secondly, the government is forbidden to interfere with or regulate religion. Thus, government can neither help nor hinder. Indeed, the right to hold any or no religious belief is an absolute right, and no government in the U.S. can compel the acceptance of or censor any creed.

Besides this, the First Amendment lists the basic civil liberties of Americans: freedom of religion, speech, the right to peaceful assembly and to petition the government for redress of problems.


12.2a "Wall of separation" versus Government accommodation

The prohibition against the establishment of a state religion can be interpreted by the "wall of separation" doctrine, and by government accommodation or the no preference doctrine. The Constitution, as advocated by Thomas Jefferson, created a "wall of separation" between church and state. Governments were forbidden to aid, encourage or support any or all churches, any or all religious activities. Thus the Supreme Court upheld the wall of separation doctrine when it declared unconstitutional the Champaign, Illinois, Board of Education’s program of allowing privately chosen instructors to teach religion during school hours in public schools. However in the face of criticism against this stand, the Supreme Court sustained New York City’s released-time program permitting religious classes to be held outside the public school buildings.

In spite of its insistence on separation of church and state, the government accommodation doctrine, permits nationals and state government to aid and encourage religious activities, if no preference is shown among different creeds. States may provide textbooks, hot lunches and use tax money to pay bus fare for children attending both church operated as well as public schools. In the case of ’Board of Education versus Allen’ (1968), the Supreme Court ruled that these practices are aids to education and to the welfare of children, rather than aids to religion. In 1971, the Lemon test was created by the court, based on the case of ’Lemon versus Kurtzman.’ It was investigating if public money could be used for a parochial purpose. It was ruled that in order to be constitutional any law had to have a secular purpose. Further, the law could not confuse government with religion. It has been observed that the court has displayed a favor towards the government accommodation.

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Index

12.0 Introduction
12.1 Perspective on Civil Liberties
12.2 The First Amendment:Freedom of Religion
12.3 The First Amendment:Freedom of Speech
12.4 The First Amendment:Freedom of Press
12.5 The Rights of Defendants
12.6 Implied Rights

Chapter 13





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