First Amendment

First Amendment to the U.S. Constitution


The United States Constitution is the supreme law of the land. It has been amended ten times; the ten amendments constitute the Bill of Rights. All laws of the land must conform and comply with the Constitution or they will be declared invalid. The 1st Amendment to the Constitution provides:

“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.”

The 1st  Amendment protects not only ideas that we agree with, but those that we disagree with as well. Proteection has been held to apply to state action under the 14th Amendment’s ‘Due Process” clause. This article will review the implications of the 1st Amendment as it relates to separation of Church and State, free exercise of religion and freedom of expression.


Pursuant to the language and intent of our Founding Fathers as set forth in the 1st Amendment, whenever a government program benefits or prefers one religion over another, the Courts will carefully scrutinize and analyze it to assure that constitutional guarantees are met- if not, the law will be struck down. If no preference is expressed in the legislation or program, the Court will nevertheless apply a 3-part test to determine constitutionality: the statute must serve a secular purpose; religion must neither be inhibited nor promoted; and the statute must not over-involve the government in religious matters. While the Supreme Court has clearly banned prayer in schools, from time to time, some lower courts have permitted them if they were not officially required and not mandatory.

Sample Laws and Programs

Below are some examples of how the Supreme Court has dealt with programs or legislation that directly or indirectly affect religious groups or parochial schools.

Health Services

Public health services can be provided to all students, including those attending parochial schools, since the intent and effect of the law is not religious in nature. Likewise, federal grants to church-affiliated hospitals for the care of indigents has been found not to violate constitutional guidelines. Government programs providing parochial schools with remedial, health and therapeutic services are constitutionally permitted so long as they are conducted outside of the parochial school and not at a parochial location.


States can constitutionally provide textbooks to all elementary and secondary school students, including those attending parochial schools, as the intent of the law is secular and requires little government involvement in religious matters. Direct aid to parochial schools has, however, been found to be unconstitutional. Interestingly, aid to church-related colleges has been permitted.

Special Purpose School Districts

Creation of a special school district to educate disabled Jewish children was held to be unconstitutional, as were grants to parochial schools to subsidize salary of teachers of secular subjects.

Tax Deductions

Awarding tax deductions or tuition grants to parents of children attending parochial schools is unconstitutional. While property tax exemptions for religious and charitable institutions has been upheld, exemption from sales and use taxes for religious articles has been struck down.

Religious Activity in Public Schools

The Supreme Court has ruled that religious activities in public school violate the Establishment Clause of the 1st Amendment as they tend to promote religion. The following activities have been declared to be unconstitutional: prayer and bible reading; posting the Ten Commandments; prohibition of teaching evolution; a period of silence for meditation or voluntary prayer.

Religious Displays

While a display that celebrates the holiday season, such as a crhche or a nativity scene accompanied by a ‘season’s greetings’ sign and other symbols nearby (e.g., Chanukah menorah) is not prohibited, the court will examine the surrounding circumstances. If it appears that the display constitutes and endorsement of a religion, the activity is unconstitutional.


Unless there is an overriding state interest, the government can take no action to impose impediments to the free practice of religion nor take any action that compels an individual to acknowledge a religious belief.

Compelling State Interest

Since the state has a compelling and important interest in marriage and family, laws outlawing polygamy (multiple wives) are constitutional. Nevertheless, the court has upheld Sunday closing laws, despite the fact that they place other religious groups who observe Saturday as a day of rest at a disadvantage. The court reasoned that a national day of rest was in the public interest. Members of the military can validly be denied the right to wear a skull cap (yarmulkah) despite their religious beliefs that require a head covering, because of an apparent overriding government interest in uniformity in military dress. Where the government directly and purposefully interferes with the practice of religion, such as prohibiting animal sacrifice, such interference is carefully scrutinized, and in the case of animal sacrifice, the prohibition was determined to be unconstitutional. A generally enacted law, such as prohibiting use of the hallucinogen peyote, has been upheld, despite the fact that use was associated with Indian religious rituals.


The Supreme Court has often gone to extremes to protect freedom of speech and prevent any prior restraints on the content of speech. Unless there is a compelling government interest, such as protecting public safety, laws limiting freedom of expression will be held invalid. Speech that incites or produces criminal conduct or violence (clear and present danger) is not protected. Thus, the message of a Ku Klux Klan leader who preached white supremacy was constitutionally protected as his message was determined to advocate, as opposed to incite, violence.

Prior restraints, that is suppression of speech in advance of its publication, is presumptively unconstitutional unless a national security interest requires protection, or the material is obscene.

The protections extend to symbolic speech- where the conduct is the message, e.g., wearing an armband to protest a war. On the other hand, the Supreme Court has ruled that statutes prohibiting the burning of a draft card or of the flag were not protected under the 1st Amendment, as the government has a sufficient overriding interest to regulate the use of draft cards and to preserve the flag as a national symbol.

Government workers are permitted to speak out on issues of public concern; Judges should not consider a parent’s religious preferences in making child custody decisions.

The government may place reasonable restraints on the time and place of the expression, e.g., prohibiting picketing at a private residence, so long as the restraints do not attempt to regulate the expression itself. Such restraints will be carefully scrutinized to determine whether they are narrowly tailored and whether alternative methods of expression are available. Restraints on free speech must not be overly broad or they will be held invalid.

Libel and Slander

In order to preserve the rights of citizens to express their views freely, the courts have ruled that defamatory statements (false statements that affect reputation) concerning public figures or regarding matters of public concern are not actionable (will not give rise to a lawsuit for damages) unless the statements were made with actual malice. However, the Supreme Court did not extend 1st Amendment freedom to newsmen who refused to reveal their sources.

Freedom of Press

Unless there is an overriding interest in denying access, such as to defend the rights of the accused, access to trials cannot be denied to the press. Likewise, gag orders directing the press not to publish material are almost always unconstitutional. Broadcasting on TV and radio can be more regulated since children have ready access to these methods of communication.


Some restrictions on expression are valid and constitutional. If the material or expression is patently offensive and appeals to prurient interest in sex by contemporary community standards and has no redeeming social, artistic or scientific value, the material or expression is considered ‘obscene” and may be restricted.

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