The Meaning of Religious Freedom

Students in my U.S. Constitutional Law course were recently introduced to the confusing and sometimes contradicting Supreme Court jurisprudence related to religious liberty. This confusion is primarily the result of a struggle that has been taking place among the Justices on the Supreme Court for several decades over the meaning of these words:

Congress shall make law respecting the establishment of religion or free exercise thereof.

Some see the words "respecting the establishment of religion" as a command for strict church/state separation, while others see it simply as a bar on the federal government from creating a national church or religion. The gulf between these two positions is enormous and multiple views landing somewhere in between these two poles have been expressed by Justices, making this perhaps the most confusing area of American constitutional law.

Justice Antonin Scalia is perhaps the most outspoken advocate on the court of a very limited reading of the so-called establishment clause. Speaking at an event in Louisiana recently, the Justice said:

the idea that government must be neutral between religion and unbelief is not grounded in the country’s constitutional traditions and that God has been good to the United States because Americans honor him.

Scalia went on to note that the government should not favor one religion over another, but there is nothing in the American constitutional tradition that demands equal treatment between religion and non-religion.