First Amendment to the United States Constitution

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The First Amendment (Amendment I) to the

United States Constitution prevents the government from making laws that regulate an establishment of religion, or that prohibit the free exercise of religion, or abridge the freedom of speech, the freedom of the press, the freedom of assembly, or the right to petition the government for redress of grievances. It was adopted on December 15, 1791, as one of the ten amendments that constitute the Bill of Rights

The Bill of Rights was proposed to assuage Anti-Federalist opposition to Constitutional ratification. Initially, the First Amendment applied only to laws enacted by the Congress, and many of its provisions were interpreted more narrowly than they are today. Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.


libel suits, most notably in New York Times Co. v. Sullivan
(1964). Commercial speech, however, is less protected by the First Amendment than political speech, and is therefore subject to greater regulation.

The Free Press Clause protects publication of information and opinions, and applies to a wide variety of media. In

New York Times v. United States (1971), the Supreme Court ruled that the First Amendment protected against prior restraint—pre-publication censorship—in almost all cases. The Petition Clause protects the right to petition all branches and agencies of government for action. In addition to the right of assembly guaranteed by this clause, the Court has also ruled that the amendment implicitly protects freedom of association

Although the First Amendment applies only to

state actors,[1] there is a common misconception that it prohibits anyone from limiting free speech, including private, non-governmental entities.[2] Moreover, the Supreme Court has determined that protection of speech is not absolute.[3]


Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[4]


The right to petition for redress of grievances was a principle included in the 1215 Magna Carta, as well as the 1689 English Bill of Rights. In 1776, the second year of the American Revolutionary War, the Virginia colonial legislature passed a Declaration of Rights that included the sentence "The freedom of the press is one of the greatest bulwarks of liberty, and can never be restrained but by despotic Governments." Eight of the other twelve states made similar pledges. However, these declarations were generally considered "mere admonitions to state legislatures", rather than enforceable provisions.[5]

After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring among other changes a stronger chief executive. George Mason, a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that the Constitution include a bill of rights listing and guaranteeing civil liberties. Other delegates—including future Bill of Rights drafter James Madison—disagreed, arguing that existing state guarantees of civil liberties were sufficient and any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.[6]

For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. The U.S. Constitution was eventually ratified by all thirteen states. In the 1st United States Congress, following the state legislatures' request, James Madison proposed twenty constitutional amendments, and his proposed draft of the First Amendment read as follows:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.[7]

This language was greatly condensed by Congress, and passed the House and Senate with almost no recorded debate, complicating future discussion of the Amendment's intent.[8][9] Congress approved and submitted to the states for their ratification twelve articles of amendment on September 25, 1789. The revised text of the third article became the First Amendment, because the last ten articles of the submitted 12 articles were ratified by the requisite number of states on December 15, 1791, and are now known collectively as the Bill of Rights.[10][11]

Freedom of religion

Puritan theocratic rule in the Plymouth and Massachusetts Bay colonies.[12]

Religious liberty, also known as freedom of religion, is "the right of all persons to believe, speak, and act – individually and in community with others, in private and in public – in accord with their understanding of ultimate truth."

military chaplains, then many soldiers and sailors would be kept from the opportunity to exercise their chosen religions.[15] In Murdock v. Pennsylvania (1943) the Supreme Court stated that "Freedom of press, freedom of speech, freedom of religion are in a preferred position.".[17]
The Court added:

Plainly, a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights.[17]

In his dissenting opinion in McGowan v. Maryland (1961), Justice William O. Douglas illustrated the broad protections offered by the First Amendment's religious liberty clauses:

The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish—whether the result is to produce

Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind, government must be neutral. This freedom plainly includes freedom from religion, with the right to believe, speak, write, publish and advocate anti-religious programs. Board of Education v. Barnette, supra, 319 U. S. 641. Certainly the "free exercise" clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment, by its "establishment" clause, prevents, of course, the selection by government of an "official" church. Yet the ban plainly extends farther than that. We said in Everson v. Board of Education, 330 U. S. 1, 330 U. S. 16, that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized.[18]

One of the central purposes of the First Amendment, the Supreme Court wrote in Gillette v. United States (1970), consists "of ensuring governmental neutrality in matters of religion."[20] The history of the Establishment Clause and the Free Exercise Clause and the Supreme Court's own constitutional jurisprudence with respect to these clauses was explained in the 1985 case Wallace v. Jaffree.[21] The Supreme Court noted at the outset that the First Amendment limits equally the power of Congress and of the states to abridge the individual freedoms it protects. The First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience. The Due Process Clause of the Fourteenth Amendment imposes on the states the same limitations the First Amendment had always imposed on the Congress.[22] This "elementary proposition of law" was confirmed and endorsed time and time again in cases like Cantwell v. Connecticut, 310 U. S. 296, 303 (1940)[a] and Wooley v. Maynard (1977).[b][25] The central liberty that unifies the various clauses in the First Amendment is the individual's freedom of conscience:[26]

Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time, it was thought that this right merely proscribed the preference of one Christian

adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among "religions" – to encompass intolerance of the disbeliever and the uncertain.[27]

Establishment of religion

Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia

The precise meaning of the Establishment Clause can be traced back to the beginning of 19th century. Thomas Jefferson wrote about the First Amendment and its restriction on Congress in an 1802 reply to the Danbury Baptists,[28] a religious minority that was concerned about the dominant position of the Congregational church in Connecticut, who had written to the newly elected president about their concerns. Jefferson wrote back:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.[29]

In Reynolds v. United States (1878) the Supreme Court used these words to declare that "it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere [religious] opinion, but was left free to reach [only those religious] actions which were in violation of social duties or subversive of good order." Quoting from Jefferson's Virginia Statute for Religious Freedom the court stated further in Reynolds:

In the preamble of this act ... religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere [only] when [religious] principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.

Reynolds was the first Supreme Court decision to use the metaphor "a wall of separation between Church and State." American historian George Bancroft was consulted by Chief Justice Morrison Waite in Reynolds regarding the views on establishment by the Founding Fathers. Bancroft advised Waite to consult Jefferson and Waite then discovered the above quoted letter in a library after skimming through the index to Jefferson's collected works according to historian Don Drakeman.[30]

The Establishment Clause[31] forbids federal, state, and local laws which purpose is "an establishment of religion." The term "establishment" denoted in general direct aid to the church by the government.[32] In Larkin v. Grendel's Den, Inc. (1982) the Supreme Court stated that "the core rationale underlying the Establishment Clause is preventing "a fusion of governmental and religious functions," Abington School District v. Schempp, 374 U. S. 203, 374 U. S. 222 (1963)."[33] The Establishment Clause acts as a double security, for its aim is as well the prevention of religious control over government as the prevention of political control over religion.[14] The First Amendment's framers knew that intertwining government with religion could lead to bloodshed or oppression, because this happened too often historically. To prevent this dangerous development they set up the Establishment Clause as a line of demarcation between the functions and operations of the institutions of religion and government in society.[34] The Federal government of the United States as well as the state governments are prohibited from establishing or sponsoring religion,[14] because, as observed by the Supreme Court in Walz v. Tax Commission of the City of New York (1970), the 'establishment' of a religion historically implied sponsorship, financial support, and active involvement of the sovereign in religious activity.[35] The Establishment Clause thus serves to ensure laws, as said by Supreme Court in Gillette v. United States (1970), which are "secular in purpose, evenhanded in operation, and neutral in primary impact".[20]

The First Amendment's prohibition on an establishment of religion includes many things from prayer in widely varying government settings over financial aid for religious individuals and institutions to comment on religious questions.[15] The Supreme Court stated in this context: "In these varied settings, issues of about interpreting inexact Establishment Clause language, like difficult interpretative issues generally, arise from the tension of competing values, each constitutionally respectable, but none open to realization to the logical limit."[15] The National Constitution Center observes that, absent some common interpretations by jurists, the precise meaning of the Establishment Clause is unclear and that decisions by the United Supreme Court relating to the Establishment Clause often are by 5–4 votes.[36] The Establishment Clause, however, reflects a widely held consensus that there should be no nationally established church after the American Revolutionary War.[36] Against this background the National Constitution Center states:

Virtually all jurists agree that it would violate the Establishment Clause for the government to compel attendance or financial support of a religious institution as such, for the government to interfere with a religious organization's selection of clergy or religious doctrine; for religious organizations or figures acting in a religious capacity to exercise governmental power; or for the government to extend benefits to some religious entities and not others without adequate secular justification.[36]

Originally, the First Amendment applied only to the federal government, and some states continued official state religions after ratification. Massachusetts, for example, was officially Congregational until the 1830s.[37] In Everson v. Board of Education (1947), the Supreme Court incorporated the Establishment Clause (i.e., made it apply against the states):

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another ... in the words of Jefferson, the [First Amendment] clause against establishment of religion by law was intended to erect 'a wall of separation between church and State'. ... That wall must be kept high and impregnable. We could not approve the slightest breach.[38]

Father Andrew White, a Jesuit missionary in the left and colonists meeting the people of the Yaocomico branch of the Piscatawy Indian Nation in St. Mary's City, Maryland, the site of Maryland's first colonial settlement.[39]

At the core of the Establishment Clause lays the core principle of denominational neutrality.[40] In Epperson v. Arkansas (1968) the Supreme Court outlined the broad principle of denominational neutrality mandated by the First Amendment: "Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of no-religion, and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion."[41] The clearest command of the Establishment Clause is, according to the Supreme Court in Larson v. Valente, 456 U.S. 228 (1982), that one religious denomination cannot be officially preferred over another.[42] In Zorach v. Clauson (1952) the Supreme Court further observed: "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction."[43] In McCreary County v. American Civil Liberties Union (2005) the Court explained that when the government acts with the ostensible and predominant purpose of advancing religion, then it violates that central Establishment Clause value of official religious neutrality, because there being no neutrality when the government's ostensible object is to take sides.[44]


McCreary County v. ACLU (2005),[48] and Salazar v. Buono (2010)[49]
—the Court considered the issue of religious monuments on federal lands without reaching a majority reasoning on the subject.


President Thomas Jefferson wrote in 1802 of "a wall of separation".[50]

Everson used the metaphor of a wall of

separation between church and state, derived from the correspondence of President Thomas Jefferson. It had been long established in the decisions of the Supreme Court, beginning with Reynolds v. United States (1878), when the Court reviewed the history of the early Republic in deciding the extent of the liberties of Mormons. Chief Justice Morrison Waite, who consulted the historian George Bancroft, also discussed at some length the Memorial and Remonstrance against Religious Assessments by James Madison,[51] who drafted the First Amendment; Madison used the metaphor of a "great barrier".[52]

In Everson, the Court adopted Jefferson's words.[50] The Court has affirmed it often, with majority, but not unanimous, support. Warren Nord, in Does God Make a Difference?, characterized the general tendency of the dissents as a weaker reading of the First Amendment; the dissents tend to be "less concerned about the dangers of establishment and less concerned to protect free exercise rights, particularly of religious minorities".[53]

Beginning with Everson, which permitted New Jersey school boards to pay for transportation to parochial schools, the Court has used various tests to determine when the wall of separation has been breached. Everson laid down the test that establishment existed when aid was given to religion, but that the transportation was justifiable because the benefit to the children was more important.

Felix Frankfurter called in his concurrence opinion in McCollum v. Board of Education (1948) for a strict separation between state and church: "Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation', not of a fine line easily overstepped. ... 'The great American principle of eternal separation'—Elihu Root's phrase bears repetition—is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity."[54]

In the school prayer cases of the early 1960s Engel v. Vitale and Abington School District v. Schempp, aid seemed irrelevant. The Court ruled on the basis that a legitimate action both served a secular purpose and did not primarily assist religion.

In Walz v. Tax Commission of the City of New York (1970), the Court ruled that a legitimate action could not entangle government with religion. In Lemon v. Kurtzman (1971), these points were combined into the Lemon test, declaring that an action was an establishment if:[55]

  1. the statute (or practice) lacked a secular purpose;
  2. its principal or primary effect advanced or inhibited religion; or
  3. it fostered an excessive government entanglement with religion.

The Lemon test has been criticized by justices and legal scholars, but it has remained the predominant means by which the Court enforced the Establishment Clause.

coercion test, have been developed to determine whether a government action violated the Establishment Clause.[57][58]

In Lemon, the Court stated that the separation of church and state could never be absolute: "Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable", the court wrote. "Judicial caveats against entanglement must recognize that the line of separation, far from being a 'wall', is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."[59]

After the Supreme Court ruling in the coach praying case of Kennedy v. Bremerton School District (2022), the Lemon Test may have been replaced or complemented with a reference to historical practices and understandings.[60][61][62]


Accommodationists,[63] in contrast, argue along with Justice William O. Douglas that "[w]e are a religious people whose institutions presuppose a Supreme Being."[64][c] Furthermore, as observed by Chief Justice Warren E. Burger in Walz v. Tax Commission of the City of New York (1970) with respect to the separation of church and state: "No perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sorts—one that seeks to mark boundaries to avoid excessive entanglement."[35] He also coined the term "benevolent neutrality" as a combination of neutrality and accommodationism in Walz to characterize a way to ensure that there is no conflict between the Establishment Clause and the Free Exercise Clause.[65][d] Burger's successor, William Rehnquist, called for the abandonment of the "wall of separation between church and State" metaphor in Wallace v. Jaffree (1985), because he believed this metaphor was based on bad history and proved itself useless as a guide to judging.[67]

David Shultz has said that accommodationists claim the Lemon test should be applied selectively.

state church, not public acknowledgements of God nor 'developing policies that encourage general religious beliefs that do not favor a particular sect and are consistent with the secular government's goals'.[68][69] In Lynch v. Donnelly (1984), the Supreme Court observed that the "concept of a "wall" of separation between church and state is a useful metaphor, but is not an accurate description of the practical aspects of the relationship that in fact exists. The Constitution does not require complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of all religions, and forbids hostility toward any."[70]

Free exercise of religion

The acknowledgement of religious freedom as the first right protected in the Bill of Rights points toward the American founders' understanding of the importance of religion to human, social, and political flourishing. The First Amendment makes clear that it sought to protect "the free exercise" of religion, or what might be called "free exercise equality."[13] Free exercise is the liberty of persons to reach, hold, practice and change beliefs freely according to the dictates of conscience. The Free Exercise Clause prohibits governmental interference with religious belief and, within limits, religious practice.[14] "Freedom of religion means freedom to hold an opinion or belief, but not to take action in violation of social duties or subversive to good order."[71] The clause withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions thereof by civil authority.[72] "The door of the Free Exercise Clause stands tightly closed against any governmental regulation of religious beliefs as such, Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 303. Government may neither compel affirmation of a repugnant belief, Torcaso v. Watkins, 367 U. S. 488; nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities, Fowler v. Rhode Island, 345 U. S. 67; nor employ the taxing power to inhibit the dissemination of particular religious views, Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573; cf. Grosjean v. American Press Co., 297 U. S. 233."[73]

The Free Exercise Clause offers a double protection, for it is a shield not only against outright prohibitions with respect to the free exercise of religion, but also against penalties on the free exercise of religion and against indirect governmental coercion.[74] Relying on Employment Division v. Smith (1990)[75] and quoting from Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993)[76] the Supreme Court stated in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) that religious observers are protected against unequal treatment by virtue of the Free Exercise Clause and laws which target the religious for "special disabilities" based on their "religious status" must be covered by the application of strict scrutiny.[77]


suttee. The Court stated that to rule otherwise, "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect permit every citizen to become a law unto himself. Government would exist only in name under such circumstances."[78] If the purpose or effect of a law is to impede the observance of one or all religions, or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect. But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden.[79]

Plains tribes