Religious Regulation in the United States

Abstract

Although the United States Constitution presumably was designed to avoid “regulation” of religion, there is an interplay between religious individuals and private organizations, on the one hand, and the state, on the other hand, which has a regulatory effect on religion in some areas of public life. The First Amendment’s “Religious Clauses” prohibit an establishment of religion and preserve the right to free exercise of religion. An important area of contention and development in legislation and Supreme Court jurisprudence involves free exercise accommodations or exemptions to laws and rules that generally apply to everyone. These are particularly at issue in the workplace, in correctional institutions, and in the military. The latter two give rise to establishment issues, which have been resolved in favor of free exercise, as government support of religion has been held to be necessary to preserve the free exercise rights of inmates and service personnel. The enactment of the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) have led to a much greater deference to religious rights, resulting in accommodations that would not have been required under preexisting legislation and judicial interpretation. Another such area involves religious organizations themselves, in particular issues regarding tax-exempt status, land use, and faith-based initiatives. A provision in the tax code known as the Johnson Amendment, which restrains religious (and other tax-exempt organizations) from certain political activities, has been challenged recently as a limitation on free speech, however without success so far. Issues involving local government limitations on religious organizations’ land use through zoning restrictions are now being addressed more favorably for religious organizations through the land-use provisions of RLUIPA, although not without controversy. Faith-based initiatives have promoted religious organizations, or faith-based organizations (FBOs), as important government partners, which are eligible to receive public funds for the delivery of social services. Since the late 20th century, there has been a gradual, but significant shift toward greater respect for individuals’ and groups’ religious rights, especially reflected in recent legislation and Supreme Court decisions. Such trends suggest that, although religion has come into conflict with legal-policy developments in other areas, such as those involving gay marriage and contraception coverage, the right to practice one’s religion and participate in public endeavors alongside nonreligious individuals and groups, is likely to continue to expand for the foreseeable future.