freedom of religion in america essay

Berkley Center

Religious freedom in america: constitutional roots and contemporary challenges.

By: Allen Hertzke

May 27, 2015

Essay: The Constitution, the First Amendment, and Religious Liberty

The Constitution, the First Amendment, and Religious Liberty

Directions: Read the essay and answer the critical thinking questions.

Throughout world history, religious conflicts have been widespread and bloody. In contrast, Americans of various faiths have been able, with some exceptions, to live side by side in relative harmony. What has made the difference? Religious liberty is one important answer. To support religious liberty, the Founders worked to ensure that government was properly limited in its purpose, as well as in its power.

Virginia’s Religious Revolution

At the time the Constitution was ratified, many of the original 13 states still supported established churches. Many Americans believed that government should support religion because religion promoted virtuous lives and nurtured the social order needed for self-government.

The Anglican Church was the established denomination in Virginia, though citizens could belong to any Christian church. Baptists were a fast-growing minority in Virginia. They did not believe that the government should have so much control over religion, and did not follow Virginia’s law that required a license to preach. As a result, Baptists were arrested, fined, and sometimes physically assaulted. Baptist preachers were whipped and dunked into mud to the point of near drowning. Baptists petitioned the Virginia government to disestablish the Anglican Church, and give all churches equal rights and benefits.

In 1776, the Virginia legislature adopted a Declaration of Rights, which included a provision dealing with religion. George Mason, the Declaration’s chief draftsman, first wrote: “All Men shou’d enjoy the fullest Toleration in the Exercise of Religion, according to the Dictates of Conscience.” But a young James Madison thought Mason’s draft did not go far enough. Madison believed that the language of “toleration” meant that a government could grant—or deny—citizens the privilege of exercising religion. Madison recommended new wording affirming that free religious belief and exercise were a natural right and duty of all. The final Declaration declared “That Religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience.…”

Religious dissenters, who were not members of the established church, thought the logic of the provision would place all churches on an equal footing before the law and lead to disestablishment. However, Virginians would continue to debate the implications of this provision for the next decade.

Religious Assessments

By the mid-1780s, taxes to support the Anglican Church had been suspended. In 1784, Patrick Henry proposed a general tax called the Bill Establishing a Provision for Teachers [Ministers] of the Christian Religion. Similar to some New England state laws, citizens would choose which Christian church received their support, or the money could go to a general fund to be distributed by the state legislature.

One notable supporter of the bill was George Washington. He wrote to James Madison: “No man’s sentiments are more opposed to any kind of restraint upon religious principles than mine are; yet I must confess, that I am not amongst the number of those who are so much alarmed at the thoughts of making people pay towards the support of that which they profess, if of the denominations of Christians; or declare themselves Jews, Mahomitans or otherwise, & thereby obtain proper relief.”

Opponents of the bill included James Madison. Madison wrote the Memorial and Remonstrance (1785) opposing the proposed tax. He asserted that religion could not be forced on people, and that state support actually corrupted religion. Government properly limited, rather, would promote a civil society in which people of different faiths could maintain their beliefs according to their own consciences. Madison’s side won the debate and Henry’s religious assessments bill did not pass.

The next year, the Virginia legislature passed The Virginia Statute for Establishing Religious Freedom, written by Thomas Jefferson. This 1786 law (still on the books in Virginia) banned government interference in religion and individual beliefs. Some, but not all, other states gradually followed the example of Virginia.

The Constitution and the First Amendment

At the Constitutional Convention in 1787, the delegates did not discuss basing the government on a religion. The only mention of religion in the body of the U.S. Constitution is to ban religious tests for national office in Article 6, Section 3. Federal employees and elected officials did not have to belong to a specific church or even be religious. This provision passed without debate.

The Constitution likely would not have been ratified without the promise of a Bill of Rights. Many states sent Congress proposed amendments that would add protections from the national government. Included in the proposals was protection for freedom of religion. Congress spent weeks debating different wordings. Finally, amendments were sent to the states for ratification. The religion clauses of the First Amendment read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The first part, known as the Establishment Clause, prohibited the national government from having anything to do with a national religion. Second, the Free Exercise Clause denied the national government the power to pass laws that stopped individuals from practicing their religions.

States did not have to disestablish their churches because the Constitution and Bill of Rights only applied to the national government. Some of the states maintained established churches and many maintained religious tests for office for many years.

CRITICAL THINKING QUESTIONS

• What was the Bill Establishing a Provision for Teachers of the Christian Religion? What arguments were put forth for and against it?
• George Washington supported religious liberty, but did not oppose the proposed Bill Establishing a Provision for Teachers of the Christian Religion. How did he reconcile these positions?
• Why could states establish religions and require religious tests even after the ratification of the Constitution and Bill of Rights?
• Today, there are over 55 countries with established religions. However, a similar number of countries have moved toward religious freedom over the last 150 years. Why do you think the trend over the last 150 years has been to disestablish religions?

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First Amendment

By: History.com Editors

Updated: July 27, 2023 | Original: December 4, 2017

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights—a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

Bill of Rights

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton , gathered in Philadelphia to draft a new U.S. Constitution .

Antifederalists, led by the first governor of Virginia , Patrick Henry , opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for people’s individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists , promised a concession to the antifederalists—a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 – the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

First Amendment Text

The First Amendment text reads:

“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.”

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

Freedom of Speech

The First Amendment guarantees freedom of speech . Freedom of speech gives Americans the right to express themselves without having to worry about government interference. It’s the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm others—true incitement and/or threats—is also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

Freedom of the Press

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press . False or defamatory statements—called libel—aren’t protected under the First Amendment.

Freedom of Religion

The First Amendment, in guaranteeing freedom of religion , prohibits the government from establishing a “state” religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

Right to Assemble, Right to Petition

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

First Amendment Court Cases

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech &  Freedom of the Press :

Schenck v. United States , 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I .

The Schenck decision helped define limits of freedom of speech, creating the “clear and present danger” standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States , 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman , Dwight D. Eisenhower , John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson , 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan .

The Supreme Court reversed a Texas court’s decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the “Lemon Test” for determining when a state or federal law violates the Establishment Clause—that’s the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry , the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU , the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: “This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.”

Edwards v. South Carolina (1962): On March 2, 1961, 187 Black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly and freedom to petition of the students.

The Bill of Rights; White House . History of the First Amendment; The University of Tennessee, Knoxville. Schenck v. United States ; C-Span .

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Pluralism Project Archive

Native american religious and cultural freedom: an introductory essay (2005).

I. No Word for Religion: The Distinctive Contours of Native American Religions

A. Fundamental Diversity We often refer to Native American religion or spirituality in the singular, but there is a fundamental diversity concerning Native American religious traditions. In the United States, there are more than five hundred recognized different tribes , speaking more than two hundred different indigenous languages, party to nearly four hundred different treaties , and courted by missionaries of each branch of Christianity. With traditional ways of life lived on a variety of landscapes, riverscapes, and seascapes, stereotypical images of buffalo-chasing nomads of the Plains cannot suffice to represent the people of Acoma, still raising corn and still occupying their mesa-top pueblo in what only relatively recently has come to be called New Mexico, for more than a thousand years; or the Tlingit people of what is now Southeast Alaska whose world was transformed by Raven, and whose lives revolve around the sea and the salmon. Perhaps it is ironic that it is their shared history of dispossession, colonization, and Christian missions that is most obviously common among different Native peoples. If “Indian” was a misnomer owing to European explorers’ geographical wishful thinking, so too in a sense is “Native American,”a term that elides the differences among peoples of “North America” into an identity apparently shared by none at the time the continents they shared were named for a European explorer. But the labels deployed by explorers and colonizers became an organizing tool for the resistance of the colonized. As distinctive Native people came to see their stock rise and fall together under “Indian Policy,” they resourcefully added that Native or Indian identity, including many of its symbolic and religious emblems, to their own tribal identities. A number of prophets arose with compelling visions through which the sacred called peoples practicing different religions and speaking different languages into new identities at once religious and civil. Prophetic new religious movements, adoption and adaptation of Christian affiliation, and revitalized commitments to tribal specific ceremonial complexes and belief systems alike marked religious responses to colonialism and Christian missions. And religion was at the heart of negotiating these changes. “More than colonialism pushed,” Joel Martin has memorably written, “the sacred pulled Native people into new religious worlds.”(Martin) Despite centuries of hostile and assimilative policies often designed to dismantle the structures of indigenous communities, language, and belief systems, the late twentieth century marked a period of remarkable revitalization and renewal of Native traditions. Built on centuries of resistance as well as strategic accommodations, Native communities from the 1960s on have vigorously pressed their claims to religious self-determination.

B. "Way of Life, not Religion" In all their diversity, people from different Native nations hasten to point out that their respective languages include no word for “religion”, and maintain an emphatic distinction between ways of life in which economy, politics, medicine, art, agriculture, etc., are ideally integrated into a spiritually-informed whole. As Native communities try to continue their traditions in the context of a modern American society that conceives of these as discrete segments of human thought and activity, it has not been easy for Native communities to accomplish this kind of integration. Nor has it been easy to to persuade others of, for example, the spiritual importance of what could be construed as an economic activity, such as fishing or whaling.

C. Oral Tradition and Indigenous Languages Traversing the diversity of Native North American peoples, too, is the primacy of oral tradition. Although a range of writing systems obtained existed prior to contact with Europeans, and although a variety of writing systems emerged from the crucible of that contact, notably the Cherokee syllabary created by Sequoyah and, later, the phonetic transcription of indigenous languages by linguists, Native communities have maintained living traditions with remarkable care through orality. At first glance, from the point of view of a profoundly literate tradition, this might seem little to brag about, but the structure of orality enables a kind of fluidity of continuity and change that has clearly enabled Native traditions to sustain, and even enlarge, themselves in spite of European American efforts to eradicate their languages, cultures, and traditions. In this colonizing context, because oral traditions can function to ensure that knowledge is shared with those deemed worthy of it, orality has proved to be a particular resource to Native elders and their communities, especially with regard to maintaining proper protocols around sacred knowledge. So a commitment to orality can be said to have underwritten artful survival amid the pressures of colonization. It has also rendered Native traditions particularly vulnerable to exploitation. Although Native communities continue to privilege the kinds of knowledge kept in lineages of oral tradition, courts have only haltingly recognized the evidentiary value of oral traditions. Because the communal knowledge of oral traditions is not well served by the protections of intellectual property in western law, corporations and their shareholders have profited from indigenous knowledge, especially ethnobotanical and pharmacological knowledge with few encumbrances or legal contracts. Orality has also rendered Native traditions vulnerable to erosion. Today, in a trend that linguists point out is global, Native American languages in particular are to an alarming degree endangered languages. In danger of being lost are entire ways of perceiving the world, from which we can learn to live more sustainable, balanced, lives in an ecocidal age.

D. "Religious" Regard for the Land In this latter respect of being not only economically land-based but culturally land-oriented, Native religious traditions also demonstrate a consistency across their fundamental diversity. In God is Red ,Vine Deloria, Jr. famously argued that Native religious traditions are oriented fundamentally in space, and thus difficult to understand in religious terms belonging properly tothe time-oriented traditions of Christianity and Judaism. Such a worldview is ensconced in the idioms, if not structures, of many spoken Native languages, but living well on particular landscapes has not come naturally to Native peoples, as romanticized images of noble savages born to move silently through the woods would suggest. For Native peoples, living in balance with particular landscapes has been the fruit of hard work as well as a product of worldview, a matter of ethical living in worlds where non human life has moral standing and disciplined attention to ritual protocol. Still, even though certain places on landscapes have been sacred in the customary sense of being wholly distinct from the profane and its activity, many places sacred to Native peoples have been sources of material as well as spiritual sustenance. As with sacred places, so too with many sacred practices of living on landscapes. In the reckoning of Native peoples, pursuits like harvesting wild rice, spearing fish or hunting certain animals can be at once religious and economic in ways that have been difficult for Western courts to acknowledge. Places and practices have often had both sacred and instrumental value. Thus, certain cultural freedoms are to be seen in the same manner as religious freedoms. And thus, it has not been easy for Native peoples who have no word for “religion” to find comparable protections for religious freedom, and it is to that troubled history we now turn.

II. History of Native American Religious and Cultural Freedom

A. Overview That sacred Native lifeways have only partly corresponded to the modern Western language of “religion,” the free exercise of which is ostensibly protected by the First Amendment of the U.S. Constitution , has not stopped Native communities from seeking protection of their freedom to exercise and benefit from those lifeways. In the days of treaty making, formally closed by Congress in 1871, and in subsequent years of negotiated agreements, Native communities often stipulated protections of certain places and practices, as did Lakota leaders in the Fort Laramie Treaty when they specifically exempted the Paha Sapa, subsequently called the Black Hills from land cessions, or by Ojibwe leaders in the 1837  treaty, when they expressly retained “usufruct” rights to hunt, fish, and gather on lands otherwise ceded to the U.S. in the treaty. But these and other treaty agreements have been honored neither by American citizens nor the United States government. Native communities have struggled to secure their rights and interests within the legal and political system of the United States despite working in an English language and in a legal language that does not easily give voice to Native regard for sacred places, practices, and lifeways. Although certain Native people have appealed to international courts and communities for recourse, much of the material considered in this website concerns Native communities’ efforts in the twentieth and twenty-first century to protect such interests and freedoms within the legal and political universe of the United States.

B. Timeline 1871 End of Treaty Making Congress legislates that no more treaties are to be made with tribes and claims “plenary power” over Indians as wards of U.S. government. 1887-1934 Formal U.S. Indian policy of assimilation dissolves communal property, promotes English only boarding school education, and includes informal and formalized regulation and prohibition of Native American ceremonies. At the same time, concern with “vanishing Indians” and their cultures drives a large scale effort to collect Native material culture for museum preservation and display. 1906 American Antiquities Act Ostensibly protects “national” treasures on public lands from pilfering, but construes Native American artifacts and human remains on federal land as “archeological resources,” federal property useful for science. 1921 Bureau of Indian Affairs Continuing an administrative trajectory begun in the 1880's, the Indian Bureau authorized its field agents to use force and imprisonment to halt religious practices deemed inimical to assimilation. 1923 Bureau of Indian Affairs The federal government tries to promote assimilation by instructing superintendents and Indian agents to supress Native dances, prohibiting some and limiting others to specified times. 1924 Pueblos make appeal for religious freedom protection The Council of All the New Mexico Pueblos appeals to the public for First Amendment protection from Indian policies suppressing ceremonial dances. 1924 Indian Citizenship Act Although uneven policies had recognized certain Indian individuals as citizens, all Native Americans are declared citizens by Congressional legislation. 1928 Meriam Report Declares federal assimilation policy a failure 1934 Indian Reorganization Act Officially reaffirms legality and importance of Native communities’ religious, cultural, and linguistic traditions. 1946 Indian Claims Commission Federal Commission created to put to rest the host of Native treaty land claims against the United States with monetary settlements. 1970 Return of Blue Lake to Taos Pueblo After a long struggle to win support by President Nixon and Congress, New Mexico’s Taos Pueblo secures the return of a sacred lake, and sets a precedent that threatened many federal lands with similar claims, though regulations are tightened. Taos Pueblo still struggles to safeguard airspace over the lake. 1972 Portions of Mount Adams returned to Yakama Nation Portions of Washington State’s Mount Adams, sacred to the Yakama people, was returned to that tribe by congressional legislation and executive decision. 1978 American Indian Religious Freedom Act Specifies Native American Church, and other native American religious practices as fitting within religious freedom. Government agencies to take into account adverse impacts on native religious freedom resulting from decisions made, but with no enforcement mechanism, tribes were left with little recourse. 1988 Lyng v. Northwest Indian Cemetery Protective Association Three Calif. Tribes try to block logging road in federal lands near sacred Mt. Shasta Supreme Court sides w/Lyng, against tribes. Court also finds that AIRFA contains no legal teeth for enforcement. 1990 Employment Division, Department of Human Resources v. Smith Oregon fires two native chemical dependency counselors for Peyote use. They are denied unemployment compensation. They sue. Supreme Court 6-3 sides w/Oregon in a major shift in approach to religious freedom. Scalia, for majority: Laws made that are neutral to religion, even if they result in a burden on religious exercise, are not unconstitutional. Dissent identifies this more precisely as a violation of specific congressional intent to clarify and protect Native American religious freedoms 1990 Native American Graves and Repatriation Act (NAGPRA) Mandates return of human remains, associated burial items, ceremonial objects, and "cultural patrimony” from museum collections receiving federal money to identifiable source tribes. Requires archeologists to secure approval from tribes before digging. 1990 “Traditional Cultural Properties” Designation created under Historic Preservation Act enables Native communities to seek protection of significant places and landscapes under the National Historic Preservation Act. 1993 Religious Freedom Restoration Act Concerning Free Exercise Claims, the burden should be upon the government to prove “compelling state interest” in laws 1994 Amendments to A.I.R.F.A Identifies Peyote use as sacramental and protected by U.S., despite state issues (all regs must be made in consultation with reps of traditional Indian religions. 1996 President Clinton's Executive Order (13006/7) on Native American Sacred Sites Clarifies Native American Sacred Sites to be taken seriously by government officials. 1997 City of Bourne v. Flores Supreme Court declares Religious Freedom Restoration Act unconstitutional 2000 Religious Land Use and Institutionalized Persons Act (RLUIPA) Protects religious institutions' rights to make full use of their lands and properties "to fulfill their missions." Also designed to protect the rights of inmates to practice religious traditions. RLUIPA has notably been used in a number of hair-length and free-practice cases for Native inmates, a number of which are ongoing (see: Greybuffalo v. Frank).

III. Contemporary Attempts to Seek Protection Against the backdrop, Native concerns of religious and cultural freedoms can be distinguished in at least the following ways.

• Issues of access to, control over, and integrity of sacred lands
• Free exercise of religion in public correctional and educational institutions
• Free Exercise of “religious” and cultural practices prohibited by other realms of law: Controlled Substance Law, Endangered Species Law, Fish and Wildlife Law
• Repatriation of Human Remains held in museums and scientific institutions
• Repatriation of Sacred Objects/Cultural Patrimony in museums and scientific institutions
• Protection of Sacred and Other Cultural Knowledge from exploitation and unilateral appropriation (see Lakota Elder’s declaration).

In their attempts to press claims for religious and cultural self-determination and for the integrity of sacred lands and species, Native communities have identified a number of arenas for seeking protection in the courts, in legislatures, in administrative and regulatory decision-making, and through private market transactions and negotiated agreements. And, although appeals to international law and human rights protocols have had few results, Native communities bring their cases to the court of world opinion as well. It should be noted that Native communities frequently pursue their religious and cultural interests on a number of fronts simultaneously. Because Native traditions do not fit neatly into the category of “religion” as it has come to be demarcated in legal and political languages, their attempts have been various to promote those interests in those languages of power, and sometimes involve difficult strategic decisions that often involve as many costs as benefits. For example, seeking protection of a sacred site through historic preservation regulations does not mean to establish Native American rights over access to and control of sacred places, but it can be appealing in light of the courts’ recently narrowing interpretation of constitutional claims to the free exercise of religion. Even in the relative heyday of constitutional protection of the religious freedom of minority traditions, many Native elders and others were understandably hesitant to relinquish sacred knowledge to the public record in an effort to protect religious and cultural freedoms, much less reduce Native lifeways to the modern Western terms of religion. Vine Deloria, Jr. has argued that given the courts’ decisions in the 1980s and 1990s, especially in the Lyng and Smith cases, efforts by Native people to protect religious and cultural interests under the First Amendment did as much harm as good to those interests by fixing them in written documents and subjecting them to public, often hostile, scrutiny.

A. First Amendment Since the 1790s, the First Amendment to the Constitution has held that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The former of the amendment’s two clauses, referred to as the “establishment clause” guards against government sponsorship of particular religious positions. The latter, known as the “free exercise” clause, protects the rights of religious minorites from government interference. But just what these clauses have been understood to mean, and how much they are to be weighed against other rights and protections, such as that of private property, has been the subject of considerable debate in constitutional law over the years. Ironically, apart from matters of church property disposition, it was not until the 1940s that the Supreme Court began to offer its clarification of these constitutional protections. As concerns free exercise jurisprudence, under Chief Justices Warren and Burger in the 1960s and 1970s, the Supreme Court had expanded free exercise protection and its accommodations considerably, though in retrospect too few Native communities were sufficiently organized or capitalized, or perhaps even motivated, given their chastened experience of the narrow possibilities of protection under U.S. law, to press their claims before the courts. Those communities who did pursue such interests experienced first hand the difficulty of trying to squeeze communal Native traditions, construals of sacred land, and practices at once economic and sacred into the conceptual box of religion and an individual’s right to its free exercise. By the time more Native communities pursued their claims under the free exercise clause in the 1980s and 1990s, however, the political and judicial climate around such matters had changed considerably. One can argue it has been no coincidence that the two, arguably three, landmark Supreme Court cases restricting the scope of free exercise protection under the Rehnquist Court were cases involving Native American traditions. This may be because the Court agrees to hear only a fraction of the cases referred to it. In Bowen v. Roy 476 U.S. 693 (1986) , the High Court held against a Native person refusing on religious grounds to a social security number necessary for food stamp eligibility. With even greater consequence for subsequent protections of sacred lands under the constitution, in Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) , the High Court reversed lower court rulings which had blocked the construction of a timber road through high country sacred to California’s Yurok, Karok and Tolowa communities. In a scathing dissent, Harry Blackmun argued that the majority had fundamentally misunderstood the idioms of Native religions and the centrality of sacred lands. Writing for the majority, though, Sandra Day O’Connor’s opinion recognized the sincerity of Native religious claims to sacred lands while devaluing those claims vis a vis other competing goods, especially in this case, the state’s rights to administer “what is, after all, its land.” The decision also codified an interpretation of Congress’s legislative protections in the 1978 American Indian Religious Freedom Act as only advisory in nature. As of course happens in the U.S. judical system, such decisions of the High Court set new precedents that not only shape the decisions of lower courts, but that have a chilling effect on the number of costly suits brought into the system by Native communities. What the Lyng decision began to do with respect to sacred land protection, was finished off with respect to restricting free exercise more broadly in the Rehnquist Court’s 1990 decision in Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) . Despite nearly a century of specific protections of Peyotism, in an unemployment compensation case involving two Oregon substance abuse counselors who had been fired because they had been found to be Peyote ingesting members of the Native American Church , a religious organization founded to secure first amendment protection in the first place, the court found that the state’s right to enforce its controlled substance laws outweighed the free exercise rights of Peyotists. Writing for the majority, Justice Scalia’s opinion reframed the entire structure of free exercise jurisprudence, holding as constitutional laws that do not intentionally and expressly deny free exercise rights even if they have the effect of the same. A host of minority religious communities, civil liberties organizations, and liberal Christian groups were alarmed at the precedent set in Smith. A subsequent legislative attempt to override the Supreme Court, the Religious Freedom Restoration Act , passed by Congress and signed into law in 1993 by President Clinton was found unconstitutional in City of Bourne v. Flores (1997) , as the High Court claimed its constitutional primacy as interpreter of the constitution.

i. Sacred Lands In light of the ruling in Lyng v. Northwest Cemetery Protective Association (1988) discussed immediately above, there have been few subsequent attempts to seek comparable protection of sacred lands, whether that be access to, control of, or integrity of sacred places. That said, three cases leading up to the 1988 Supreme Court decision were heard at the level of federal circuit courts of appeal, and are worthy of note for the judicial history of appeals to First Amendment protection for sacred lands. In Sequoyah v. Tennessee Valley Authority , 19800 620 F.2d 1159 (6th Cir. 1980) , the court remained unconvinced by claims that a proposed dam's flooding of non-reservation lands sacred to the Cherokee violate the free excersice clause. That same year, in Badoni v. Higginson , 638 F. 2d 172 (10th Cir. 1980) , a different Circuit Court held against Navajo claims about unconstitutional federal management of water levels at a am desecrating Rainbow Arch in Utah. Three years later, in Fools Crow v. Gullet , 760 F. 2d 856 (8th Cir. 1983), cert. Denied, 464 U.S.977 (1983) , the Eighth Circuit found unconvincing Lakota claims to constitutional protections to a vision quest site against measures involving a South Dakota state park on the site.

ii. Free Exercise Because few policies and laws that have the effect of infringing on Native American religious and cultural freedoms are expressly intended to undermine those freedoms, the High Court’s Smith decision discouraged the number of suits brought forward by Native communities under constitutional free exercise protection since 1990, but a number of noteworthy cases predated the 1990 Smith decision, and a number of subsequent free exercise claims have plied the terrain of free exercise in correctional institutions. Employment Division, State of Oregon v. Smith (1990)

• Prison:Sweatlodge Case Study
• Eagle Feathers: U.S. v. Dion
• Hunting for Ceremonial Purposes: Frank v. Alaska

iii. No Establishment As the history of First Amendment jurisprudence generaly shows (Flowers), free exercise protections bump up against establishment clause jurisprudence that protects the public from government endorsement of particular traditions. Still, it is perhaps ironic that modest protections of religious freedoms of tiny minorities of Native communities have undergone constitutional challenges as violating the establishment clause. At issue is the arguable line between what has been understood in jurisprudence as governmental accommodations enabling the free exercise of minority religions and government endorsement of those traditions. The issue has emerged in a number of challenges to federal administrative policies by the National Park Service and National Forest Service such as the voluntary ban on climbing during the ceremonially significant month of June on what the Lakota and others consider Bear Lodge at Devil’s Tower National Monument . It should be noted that the Mountain States Legal Foundation is funded in part by mining, timbering, and recreational industries with significant money interests in the disposition of federal lands in the west. In light of courts' findings on these Native claims to constitutional protection under the First Amendment, Native communities have taken steps in a number of other strategic directions to secure their religious and cultural freedoms.

B. Treaty Rights In addition to constitutional protections of religious free exercise, 370 distinct treaty agreements signed prior to 1871, and a number of subsequent “agreements” are in play as possible umbrellas of protection of Native American religious and cultural freedoms. In light of the narrowing of free exercise protections in Lyng and Smith , and in light of the Court’s general broadening of treaty right protections in the mid to late twentieth century, treaty rights have been identified as preferable, if not wholly reliable, protections of religious and cultural freedoms. Makah Whaling Mille Lacs Case

C. Intellectual Property Law Native communities have occasionally sought protection of and control over indigenous medicinal, botanical, ceremonial and other kinds of cultural knowledge under legal structures designed to protect intellectual property and trademark. Although some scholars as committed to guarding the public commons of ideas against privatizing corporate interests as they are to working against the exploitation of indigenous knowledge have warned about the consequences of litigation under Western intellectual property standards (Brown), the challenges of such exploitation are many and varied, from concerns about corporate patenting claims to medicinal and agricultural knowledge obtained from Native elders and teachers to protecting sacred species like wild rice from anticipated devastation by genetically modified related plants (see White Earth Land Recovery Project for an example of this protection of wild rice to logos ( Washington Redskins controversy ) and images involving the sacred Zia pueblo sun symbol and Southwest Airlines to challenges to corporate profit-making from derogatory representations of Indians ( Crazy Horse Liquor case ).

D. Other Statutory Law A variety of legislative efforts have had either the express purpose or general effect of providing protections of Native American religious and cultural freedoms. Some, like the Taos Pueblo Blue Lake legislation, initiated protection of sacred lands and practices of particular communities through very specific legislative recourse. Others, like the 1990 Native American Graves Protection and Repatriation Act , enacted broad protections of Native American religious and cultural freedom [link to Troost case]. Culminating many years of activism, if not without controversy even in Native communities, Congress passed the American Indian Religious Freedom Act , signed into law in 1978 and amended in 1993, in order to recognize the often difficult fit between Native traditions and constitutional protections of the freedom of “religion” and ostensibly to safeguard such interests from state interference. Though much heralded for its symbolic value, the act was determined by the courts (most notably in the Lyng decision upon review of the congressional record to be only advisory in nature, lacking a specific “cause for action” that would give it legal teeth. To answer the Supreme Court's narrowing of the scope of free exercise protections in Lyng and in the 1990 Smith decision, Congress passed in 2000 the  Religious Land Use and Institutionalized Persons Act (RLUIPA)  restoring to governments the substantial burden of showing a "compelling interest" in land use decisions or administrative policies that exacted a burden on the free exercise of religion and requiring them to show that they had exhausted other possibilities that would be less burdensome on the free exercise of religion. Two other notable legislative initiatives that have created statutory protections for a range of Native community religious and cultural interests are the 1966 National Historic Preservation Act and the Native American Language Act legislation beginning to recognize the significance and urgency of the protection and promotion of indigenous languages, if not supporting such initiatives with significant appropriations. AIRFA 1978 NAGPRA 1990 [see item h. below] Native American Language Act Religious Land Use and Institutionalized Persons Act (RLUIPA)  2000 National Historic Preservation Act  [see item g below]

E. Administrative and Regulatory Policy and Law As implied in a number of instances above, many governmental decisions affecting Native American religious and cultural freedom occur at the level of regulation and the administrative policy of local, state, and federal governments, and as a consequence are less visible to those not locally or immediately affected.

F. Federal Recognition The United States officially recognizes over 500 distinct Native communities, but there remain numerous Native communities who know clearly who they are but who remain formally unrecognized by the United States, even when they receive recognition by states or localities. In the 1930s, when Congress created the structure of tribal governments under the Indian Reorganization Act, many Native communities, including treaty signatories, chose not to enroll themselves in the recognition process, often because their experience with the United States was characterized more by unwanted intervention than by clear benefits. But the capacity and charge of officially recognized tribal governments grew with the Great Society programs in the 1960s and in particular with an official U.S. policy of Indian self-determination enacted through such laws as the 1975 Indian Self Determination and Education Act , which enabled tribal governments to act as contractors for government educational and social service programs. Decades later, the Indian Gaming Regulatory Act formally recognized the authority of recognized tribal governments to engage in casino gaming in cooperation with the states. Currently, Native communities that remain unrecognized are not authorized to benefit from such programs and policies, and as a consequence numerous Native communities have stepped forward to apply for federal recognition in a lengthy, laborious, and highly-charged political process overseen by the  Bureau of Indian Affairs, Office of Federal Acknowledgment . Some communities, like Michigan’s Little Traverse Band of Odawa have pursued recognition directly through congressional legislation. As it relates to concerns of Native American religious and cultural freedom, more is at stake than the possibility to negotiate with states for the opening of casinos. Federal recognition gives Native communities a kind of legal standing to pursue other interests with more legal and political resources at their disposal. Communities lacking this standing, for example, are not formally included in the considerations of the Native American Graves Protection and Repatriation Act (item H. below).

G. Historic Preservation Because protections under the National Historic Preservation Act have begun to serve as a remedy for protection of lands of religious and cultural significance to Native communities, in light of first amendment jurisprudence since Lyng , it bears further mention here. Native communities seeking protections through Historic Preservation determinations are not expressly protecting Native religious freedom, nor recognizing exclusive access to, or control of sacred places, since the legislation rests on the importance to the American public at large of sites of historic and cultural value, but in light of free exercise jurisprudence since Lyng , historic preservation has offered relatively generous, if not exclusive, protection. The National Historic Preservation Act as such offered protection on the National Register of Historic Places, for the scholarly, especially archeological, value of certain Native sites, but in 1990, a new designation of “traditional cultural properties” enabled Native communities and others to seek historic preservation protections for properties associated “wit cultural practices or beliefs of a living community that (a) are rooted in that community’s history, and (b) are important in maintaining the continuing cultural identity of the community.” The designation could include most communities, but were implicitly geared to enable communities outside the American mainstream, perhaps especially Native American communities, to seek protection of culturally important and sacred sites without expressly making overt appeals to religious freedom. (King 6) This enabled those seeking recognition on the National Register to skirt a previous regulatory “religious exclusion” that discouraged inclusion of “properties owned by religious institutions or used for religious purposes” by expressly recognizing that Native communities don’t distinguish rigidly between “religion and the rest of culture” (King 260). As a consequence, this venue of cultural resource management has served Native interests in sacred lands better than others, but it remains subject to review and change. Further it does not guarantee protection; it only creates a designation within the arduous process of making application to the National Register of Historic Places. Pilot Knob Nine Mile Canyon

H. Repatriation/Protection of Human Remains, Burial Items, and Sacred Objects Culminating centuries of struggle to protect the integrity of the dead and material items of religious and cultural significance, Native communities witnessed the creation of an important process for protection under the 1990 Native American Graves and Repatriation Act . The act required museums and other institutions in the United States receiving federal monies to share with relevant Native tribes inventories of their collections of Native human remains, funerary objects, sacred objects, and objects of “cultural patrimony” (that is objects that were acquired from individuals, but which had belonged not to individuals, but entire communities), and to return them on request to lineal descendants or federally recognized tribes (or Native Hawaiian organizations) in those cases where museums can determine cultural affiliation, or as often happens, in the absence of sufficiently detailed museum data, to a tribe that can prove its cultural affiliation. The law also specifies that affiliated tribes own these items if they are discovered in the future on federal or tribal lands. Finally, the law also prohibits almost every sort of trafficking in Native American human remains, burial objects, sacred objects, and items of cultural patrimony. Thus established, the process has given rise to a number of ambiguities. For example, the law’s definition of terms gives rise to some difficulties. For example, “sacred objects” pertain to objects “needed for traditional Native American religions by their present day adherents.” Even if they are needed for the renewal of old ceremonies, there must be present day adherents. (Trope and Echo Hawk, 143). What constitutes “Cultural affiliation” has also given rise to ambiguity and conflict, especially given conflicting worldviews. As has been seen in the case of Kennewick Man the “relationship of shared group identity” determined scientifically by an archeologist may or may not correspond to a Native community’s understanding of its relation to the dead on its land. Even what constitutes a “real” can be at issue, as was seen in the case of Zuni Pueblo’s concern for the return of “replicas” of sacred Ahayu:da figures made by boy scouts. To the Zuni, these contained sacred information that was itself proprietary (Ferguson, Anyon, and Lad, 253). Disputes have arisen, even between different Native communities claiming cultural affiliation, and they are adjudicated through a NAGPRA Review Committee , convened of three representatives from Native communities, three from museum and scientific organizations, and one person appointed from a list jointly submitted by the other six.

I. International Law and Human Rights Agreements At least since 1923, when Haudenosaunee Iroqois leader Deskaneh made an appeal to the League of Nations in Geneva, Native communities and organizations have registered claims and concerns about religious and cultural freedoms with the international community and institutions representing it in a variety of ways. Making reference to their status as sovereign nations whose treaties with the U.S. have not been honored, frustrated with previous efforts to seek remedies under U.S. law, concerned with the capacity for constitutional protection of what are typically “group” and not individual rights, and sometimes spurned by questions about the rightful jurisdiction of the U.S., Native organizations have sought consideration of their claims before the United Nations and engaged in its consultations on indigenous rights. After years of such appeals and efforts, a nearly unanimous  United Nations General Assembly passed the United Nations Declarations on the Rights of Indigenous Peoples The 1996  Declaration of the Rights of Indigenous Peoples includes reference [article 12] to the “right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of ceremonial objects,; and the right to the repatriation of human remains.” Importantly, the Declaration does not exclude those communities whose traditions have been interrupted by colonization. Indigenous peoples are recognized as having “the right to maintain, protect and develop the past, present and future manifestations of their cultures as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.” Also specified are their rights to their languages. An offshoot of the American Indian Movement, the International Indian Treaty Council is one such organization that has shifted its attention to the international arena for protections of indigenous rights, including those of religious and cultural freedom.]]

J. Negotiated Agreements and Private Transactions Many if not most Native claims and concerns related to religious and cultural freedoms have been and will continue to be raised and negotiated outside the formal legal and regulatory structures outlined above, and thus will seldom register in public view. In light of the career of Native religious and cultural freedoms in legislative and legal arenas, Vine Deloria, Jr., has suggested the possibilities of such agreements to reach Native goals without subjecting Native communities to the difficulties of governmental interference or public scrutiny of discreet traditions (Deloria 1992a). Still, the possibilities for Native communities to reach acceptable negotiated agreements often owe to the legal and political structures to which they have recourse if negotiations fail. The possibilities of such negotiated agreements also can be shaped by the pressures of public opinion on corporate or governmental interests. Kituwah Mound Valley of the Shields/Weatherman’s Draw

IV. Selected Past Native American Religious and Cultural Freedom Court Cases

A. Land Sequoyah v. Tennessee Valley Authority 620 F. 2d 1159 (6th Cir. 1980) . Dam’s Destruction of Sacred River/Land Badoni v. Higginson 638 F 2d 172 (10th Cir. 1980) . Desecration of Rainbow Arch, Navajo Sacred Spot in Utah Fools Crow v. Gullet 706 F. 2d. 856 (8th Cir. 1983), cert. Denied, 464 U.S. 977 (1983) . State Park on top of Vision Quest site in S. Dakota Wilson v. Block 708F. 2d 735 (D.C. Cir. 1983) ; Hopi Indian Tribe v. Block; Navajo Medicine Men Assn’ v. Block Expansion of Ski Area in San Francisco Peaks, sacred to Navaho and Hopi Lyng v. Northwest Cemetery Protective Association 485 U.S. 439 (1988) Logging Road in lands sacred to Yurok, Karok, and Tolowa

B. Free Exercise Bowen v. Roy 476 U.S. 693 (1986) Native refusal of Social Security Number U.S. v. Dion 476 U.S. 734 Sacramental Eagle Hunt contra Endangered Species Act Frank v. State 604 P. 2d 1068 (Alaska 1979) Taking moose out of season for potlatch *Native American Church v. Navajo Tribal Council 272 F 2d 131 (10th Cir. 1959) Peyotists vs. Tribal Gov’t Prohibiting Peyotism People v. Woody 61 Cal.2d 716, 394 P.2d 813, 40 Cal. Rptr. 69 (1964) Groundbreaking recognition of Free Exercise exemption from State Ban. Employment Division, State of Oregon v. Smith 484 U.S. 872 (1990) Denial of Peyotist’s unemployment compensation held constitutional

C. Prison cases involving hair *Standing Deer v. Carlson 831 F. 2d 1525 (9th Cir. 1987). *Teterud v. Gilman 385 F. Supp. 153 (S. D. Iowa 1974) & New Rider v. Board of Education 480 F. 2d 693 (10th Cir. 1973) , cert. denied 414 U.S. 1097, reh. Denied 415 U.S. 939 *Indian Inmates of Nebraska Penitentiary v. Grammar 649 F. Supp. 1374 (D. Neb. 1986)

D. Human Remains/Repatriation *Wana the Bear v. Community Construction, Inc. 180 Cal Rptr. 423 (Ct. App. 1982). Historic Indian cemetery not a “cemetery.” *State v. Glass 273 N.E. 2d 893 (Ohio Ct. App. 1971). Ancient human remains not “human” for purposes of Ohio grave robbing statute

E. Treaty Rights Pertaining to Traditional/Sacred Practices *U.S. v. Washington 384 F. Supp. 312 (W.D. Wash. 1974) aff’d 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976). Boldt Decision on Salmon Fishing *Lac Court Oreilles Band of Lake Superior Chippewa Indians v. Voight, 700 F. 2d 341 (7th Cir.) Cert. denied, 464 U.S. 805 (1983) 653 F. Supp. 1420; Fishing/Ricing/Gathering on Ceded Lands Minnesota v. Mille Lacs Band of Chippewa Indians 124 F 3d 904 affirmed. (1999) Fishing/Ricing/Gathering on Ceded Lands

V. References & Resources

Brown, Michael, Who Owns Native Culture (Cambridge, Mass: Harvard University Press, 2003). Burton, Lloyd Worship and Wilderness: Culture, Religion, and Law in the Management of Public Lands and Resources (Madison: University of Wisconsin Press, 2002).

Deloria, Vine, Jr., “Secularism, Civil Religion, and the Religious Freedom of American Indians,” American Indian Culture and Research Journal 16:9-20 (1992).

[a] Deloria, Vine, Jr., “Trouble in High Places: Erosion of American Indian Rights to Religious Freedom in the United States,”in The State of Native America: Genocide, Colonization, and Resistance , ed. M. Annette Jaimes (Boston: South End Press, 1992).

[b] Echo Hawk, Walter,  In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided ( Fulcrum Publications , 2010) . Fine-Dare, Kathleen, Grave Injustice: The American Indian Repatriation Movement and NAGPRA (Lincoln: University of Nebraska Press, 2002).

Ferguson, T.J., Roger Anyon, and Edmund J. Ladd, “Repatriation at the Pueblo of Zuni: Diverse Solutions to Complex Problems,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000) pp. 239-265.

Gordon-McCutchan, R.C., The Taos Indians and the Battle for Blue Lake (Santa Fe, New Mexico: Red Crane Books, 1991).

Gulliford, Andrew, Sacred Objets and Sacred Places: Preserving Tribal Traditions (Boulder: University Press of Colorado, 2000).

Johnson, Greg, Sacred Claims: Repatriation and Living Tradition (Charlottesville: University of Virginia Press, 2007).

King, Thomas F., Places that Count: Traditional Cultural Properties in Cultural Resource Management (Walnut Creek, Calif: Altamira Press, 2003).

Long, Carolyn, Religious Freedom and Indian Rights: The Case of Oregon v. Smith (Lawrence: University of Kansas Press, 2001).

Maroukis, Thomas A., Peyote Road: Religious Freedom and the Native American Church (Norman: University of Oklahoma Press, 2010)

Martin, Joel, The Land Looks After Us: A History of Native American Religion (New York: Oxford University Press, 2001).

McLeod, Christopher (Producer/Director), In Light of Reverence , Sacred Lands Film Project, (Earth Image Films, La Honda Calif. 2000).

McNally, Michael D., "Native American Religious Freedom Beyond the First Amendment," in After Pluralism ed. Courtney Bender and Pamela Klassen (New York: Columbia University Press, 2010).

Mihesuah, Devon A., ed., Repatriation Reader: Who Owns American Indian Remains (Lincoln: University of Nebraska Press, 2000).

Nabokov, Peter, A Forest of Time: American Indian Ways of History (New York: Cambridge University Press, 2002).

Sullivan, Robert, A Whale Hunt (New York: Scribner, 2000).

Trope, Jack F., and Walter Echo-Hawk, “The Native American Graves Protection and Repatriation Act: Background and Legislative History,” in Repatriation Reader , ed. Devon Mihesuah (Lincoln: University of Nebraska Press, 2000), pp. 123-168.

Wenger, Tisa, We Have a Religion : The 1920s Pueblo Indian Dance Controversy and American Religious Freedom (Chapel Hill: University of North Carolina Press, 2009).

United States Institute of Peace

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Promoting Peace and Stability in the Americas through Religious Freedom

As authoritarians crack down on religious freedom, Western Hemisphere nations need to increase protection of human rights.

Thursday, March 28, 2024 / By: Knox Thames

Publication Type: Analysis

The Western Hemisphere is generally known for protecting freedom of religion or belief. With a few notable exceptions, the countries of the region all enshrine religious freedom at the constitutional level and protect it through laws and policies. But in recent years, authoritarian governments in South America have increasingly viewed religious actors as threats to their regime’s survival and tried to control or crush independent religious activity.

The stakes are high, as failing to protect religious freedom could produce dire outcomes for peace and stability. Western Hemisphere nations must redouble their efforts to protect this foundational right, which can prevent conflict and help protect all human rights.  

The Crackdown on Religious Freedom

Of the Western Hemisphere nations under authoritarian rule, Nicaragua has arguably become the worst country for religious freedom. The Ortega-Murillo  government  has closed hundreds of churches, expelled dozens of priests, and jailed many clergy and laity.

Meanwhile, concerns are increasing about a new body in Venezuela  that was ostensibly created to promote religious freedom but is likely to exert greater control over spiritual life in the country.

And, of course, Cuba continues to  violate  religious freedom standards through its draconian monitoring, onerous registration process, police raids on “illegal” churches, and the  forced migration  of pastors unwilling to remain silent. The repression has resulted in migration, both forced and voluntary, as persecuted believers flee to find security elsewhere. 

In addition, many Latin American countries have shifted from majority Catholic to more pluralistic and secular societies. In 1910, the Pew Research Center estimates that roughly 94 percent of Latin Americans were Catholic. A little more than a century later, Pew found that Catholics only accounted for 69 percent of Latin Americans, with 19 percent now belonging to Protestant churches and 8 percent religiously unaffiliated.

This influx of new beliefs and new ways of living has created societal tensions that impact religious freedom — particularly for Indigenous communities and religious minorities. Indigenous communities, with their unique religious and belief traditions dating back centuries, have long faced geographic and cultural encroachment. But more recently, religious minorities, Indigenous religions and Indigenous communities have suffered discrimination and attacks on their members and sacred sites. While most governments reject such attacks and promote measures to address them, problems persist with access to justice, education, housing, employment and the building of worship sites.

The Existing Human Rights Framework for the Region

Despite these challenges, the region does have a robust human rights framework that is meant to protect religious freedom. The Organization of American States (OAS) was the first international organization to  recognize human rights , with the American Declaration of the Rights and Duties of Man passed a few months before the U.N. General Assembly approved the Universal Declaration of Human Rights in 1948.

Later, the American Convention on Human Rights was signed in 1969 and explicitly  protected  religious freedom in treaty law in a way that mirrors U.N. standards. The convention also proscribes discrimination based on religion or belief, including limitations on assembly or movement. 

More recently, the OAS, as an international entity, has become increasingly vocal on freedom of religion or belief. It has created  partnerships  and issued  statements  noting the importance of religious freedom, highlighted particular situations, such as in  Nicaragua , and convened  special meetings . Earlier this year, the OAS Secretary General Louis Almagro met with the U.N. Special Rapporteur on Freedom of Religion or Belief Nazila Ghanea to highlight the increasing importance of this right in the OAS region. 

OAS member states have also collectively spoken about these issues, most recently as part of the “Resolution for the Promotion and Protection of Human Rights” that was passed at the 52nd OAS General Assembly in Lima, Peru.

A Lack of Enforcement Mechanisms

That OAS General Assembly resolution also tasked the Inter-American Commission on Human Rights (IACHR) to review religious freedom issues in the region. Previously, few cases on religious freedom have come before the commission, thus leaving few opportunities for it or the Inter-American Court for Human Rights to examine and rule on foundational freedom of religion or belief challenges.

As a result, the Inter-American system, despite being first out of the gate to enunciate human rights and religious freedom standards 75 years ago, has little jurisprudence or process to rely upon when reviewing core religious freedom violations. In fact, until recently, few OAS bodies have spoken at length about freedom of religion or belief at all.

And even when they do, as the IACHR report  released in February 2024 shows, the issue still feels novel. The IACHR report summarized the parameters of the right to religious freedom in the context of Inter-American and U.N. standards but spent little time speaking about core violations relating to freedom of religion or belief. The authors instead devoted more attention to how religious freedom issues intersect with other human rights concerns — which, though not necessarily problematic, took attention away from the freedom of religion and belief itself and missed an opportunity to speak about challenges straightforwardly. As the commission’s press release  stated : “In preparing the study, gender and ethnic-racial approaches were applied, as well as the perspective of intersectionality, in order to account for the different realities that groups face in the exercise of this human right in the region.”

Unfortunately, this approach appeared to pit religious freedom in opposition to other human rights concerns. It is a false dichotomy, as religious freedom  is  a human right. Certainly, tensions exist between religious actors and rights of conscience regarding issues of marriage, life, bodily autonomy, LGBTQ+ discrimination and other issues. These tensions were outlined in the report and its dissents. However, the surprising procedural decision not to publish the “explanation of vote” by dissenting commissioners appears to run counter to the commission’s  rules of procedure . The decision lacked transparency and limited access to the arguments among commissioners, a regrettable occurrence, as, ironically, freedom of thought, conscience, religion or belief should create space for these debates.

Improving Policies on Religious Freedom

Regardless, the report elevated how Inter-American standards protect religious freedom. With the many challenges across the region, there is a need for increased engagement on religious freedom by the OAS as an organization, by its member states, and by the various components of the Inter-American system.

To assist, USIP, in collaboration with Pepperdine University and Brigham Young University,  convened  OAS delegations and OAS experts earlier in the year to explore areas of agreement. Subsequent  discussions  with civil society recently took place as well. And while promoting religious freedom reflects a commitment to human rights, it is also in the security interest of the United States to work through the OAS to ensure the nations of the Western Hemisphere continue to protect this right, as it ensures stability, positively manages diversity, and prevents the growth of extremism, which USIP has highlighted before.

From these conversations, participants agreed on the need for all actors working to advance human rights in the hemisphere — governments, multinational organizations, civil societies and faith-based organizations — to find ways to foster consensus approaches that promote religious freedom in the region and defend religious minorities.

USIP and its partners are planning follow-up conversations focusing on the OAS General Assembly's human rights resolution. The resolution identified practical, needed and consensus areas of activity, such as minority rights and Indigenous beliefs, access to worship and protection of meeting places, and combatting discrimination based on religion or belief. In addition, education about living together in diversity was a key takeaway from USIP’s conversations, and USIP’s Global Campus provides resources for peacemakers to engage in  religiously diverse societies , in addition to reports about  educating youth  in schools.

With changing dynamics and increasing pluralism across the OAS region, these practical approaches will be vital to address the threat of the politicization of religion. Consequently, the OAS must continue to expand its efforts to protect religious freedom by promoting more rights for more people and recognizing human dignity, which is the basis for peace in pluralistic societies. Work remains to ensure everyone in the Americas enjoys freedom of religion or belief in an unhindered way, without fear of discrimination or violence.

Related Publications

War and the Church in Ukraine

Thursday, March 14, 2024

By: Peter Mandaville, Ph.D.

Vladimir Putin’s war to reverse Ukraine’s independence includes religion. For centuries, the Russian Orthodox Church bolstered Moscow’s rule by wielding ecclesiastical authority over Ukrainian churches. Since early 2019, Ukraine has had a self-governing Orthodox Church of Ukraine. Russia’s invasion has sharpened tensions between it and the rival branch historically linked to Moscow. Any conciliation between them could shrink areas for conflict — and the Kremlin’s ability to stir chaos — in a postwar Ukraine. It would bolster Ukraine’s future stability and reinforce a decline in Russia’s historically massive influence across the Orthodox Christian world. But can Ukrainians make that happen?

Type: Analysis

USIP Explains: How Religious Freedom Promotes Peace and Security

Monday, January 29, 2024

By: Knox Thames

In almost every society, religious belief can guide the actions of people in both positive and negative ways. For peacebuilders, it’s important to understand the religious landscape in communities affected by conflicts and violence. USIP’s Knox Thames discusses how promoting openness to freedom of thought, conscience, religion and belief can help de-escalate violence and lead to better stability and security.

Conflict Analysis & Prevention ;  Religion

In Religious Conflicts, Bolstering the Role of Military Chaplains

Wednesday, January 24, 2024

By: Melissa Nozell ;   Knox Thames

In the 2020s, how urgently should the U.S. military prepare to address religious facets of armed conflicts? Violence from Beirut to the Red Sea this month threatens to spread the Israel-Hamas war regionwide. Violence fueled through religious identities and extremisms also afflicts Asia and Africa. Russia manipulates religion to justify its invasion of Ukraine. However, simultaneously, religious ideas can help resolve conflicts. The United States should seize a current opportunity to improve its ability to navigate the religious terrain of conflicts with enhanced training and roles for an often under-appreciated resource: military chaplains.

What Comes Next for the International Religious Freedom Movement?

Friday, December 8, 2023

The historic city of Prague recently hosted diplomats, civil society activists and religious leaders from 60 countries around the shared goal of global religious freedom. Convened by the Czech government, it was the fifth gathering since the United States launched the ministerial process in 2018. As persecution continues worldwide, victimizing individuals from all faiths and none, the timing was right to gather those committed to promoting freedom of thought, conscience, religion or belief for all.

Human Rights ;  Religion

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Free Religious Freedom In America Essay Example

Type of paper: Essay

Topic: Religion , United States , Law , Constitution , States , Danbury , Declaration , Jefferson

Published: 05/23/2023

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The Documents

The Declaration of Independence Among the founding documents of the American republic the Declaration of Independence and the Constitution of the United States share primacy. First in time was the Declaration of Independence. Prepared by the Continental Congress over a year after the American Revolution had started with the battles at Lexington and Concord in April, 1775, the Declaration was silent on the question of religious freedom. In Jefferson’s words, which still ring down across almost two and a half centuries, the Declaration is firmly based on the “Laws of Nature and of Nature’s God” and, of course, “We hold these truths to be self evident, that all men are created equal” created, presumably, by God. In the list of grievances which comprise the bulk of the Declaration though, religion is unmentioned.

The Constitution of the United States

The Constitution of the United States was, as drafted and signed in 1787, almost silent on religion. The only reference is found in Article 6 where it stipulates “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States” (Davis). It remained for the fight over ratification, something not a certainty during 1787-89, for the demand for a specific guarantee of individual liberties to result in a Bill of Rights, the first of which, by design, starts “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;” Finally, freedom of religion was guaranteed when the Bill of Rights was adopted.

The Danbury Baptists Letters

The subject of this paper involves an exchange on the subject of religion between the Danbury Baptists Association and Thomas Jefferson. In this exchange, the Danbury Baptists state their position that they fear a government encroaching on religious liberty and petition the newly elected president to assure them that would not happen. Jefferson responded by agreeing that religious freedom is important. He points out, though, that the First Amendment addresses this quite clearly. He emphasizes this by saying this has the effect of “building a wall of separation between Church & State” (Letters Between Thomas Jefferson and the Danbury Baptists).

Freedom of Religion

History Religion played a central role in America from the time of the first colonies. The Pilgrims, Puritans, Huegonauts, Catholics, Protestants (in all of their denominations) and Quakers are all there in the colonies. Often, though, religious tolerance was distinctly not a part of the New World philosophy (Davis). Indeed, intolerance was more the norm, with, for example, the religious clashes between Catholics and Protestants spilling into the Americas from Europe. Beyond intolerance, active discrimination and even violence were common. Catholics were banned from some of the English colonies as were “non-Puritan” Protestants (Davis). In one report “Four Quakers were hanged in Boston between 1659 and 1661 for persistently returning to the city to stand up for their beliefs” (Davis).

At the Constitutional Convention religion was little mentioned beyond an agreement that no state religion would be included. The fight for ratification resulted in the Bill of Rights and, relevant to this discussion, the First Amendment. That this was considered insufficient by at least some is seen in the Danbury letters.

As Mount points out, in the 21st Century it seems that religion has become a “big deal” in American society. Lawsuits surround the posting of the Ten Commandments or the words “In God We Trust” on currency. Compared to the colonial period though, it is a minor issue. By the time of the American Revolution, there was enough diversity to make settling on any single religion impossible. The Constitution though, even when the Bill of Rights was included, could be interpreted as not prohibiting the states from establishing a church. For that matter, a tithe to the church and required attendance were theoretically possible as well. This interpretation seems absurd in the face of Article 6 which clearly states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby” (Constitution of the United States). Nevertheless, religion was of sufficient concern that the Danbury Baptists felt compelled to contact the new President about them. Jefferson laid down the precedent in the clearest possible language that the First Amendment created a “wall of separation between Church & State” (Letters Between Thomas Jefferson and the Danbury Baptists). This language remains the core of the American approach to church and state relationships today.

“Bill of Rights.” (15 December 1791). National Archives. Retrieved from https://www.archives.gov/founding-docs/bill-of-rights-transcript “Constitution of the United States.” (17 September 1789). National Archives. Retrieved from https://www.archives.gov/founding-docs/constitution-transcript Davis, K. (October 2010). “America’s True History of Religious Tolerance.” Smithsonian Magazine. Retrieved from http://www.smithsonianmag.com/history/americas-true-history-of-religious-tolerance-61312684/ “Declaration of Independence.” (4 July 1776). National Archives. Retrieved from https://www.archives.gov/founding-docs/declaration-transcript “Letters Between Thomas Jefferson and the Danbury Baptists.” (1802). Bill of Rights Institute. Retrieved from https://www.billofrightsinstitute.org/founding-documents/primary-source-documents/danburybaptists/ Mount, S. (29 June 2010). “Constitutional Topic: The Constitution and Religion.” U.S. Constitution Online. Retrieved from http://www.usconstitution.net/consttop_reli.html

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Letters: The Constitution protects freedom from religion

Scrutiny of aeas is needed and welcomed.

The opinion piece by Superintendents David Smith and Todd Abrahamson was a breath of fresh air in what is, for the most part, a one-sided debate for the educational status quo, and the stagnation of resources and services, to continue. Shining a light on issues is always a good thing, and those who would defend wasting resources or limiting a district's choices, as well as those of parents within the district, is a disservice to students, teachers and taxpayers alike.

As a retired 40-year public educator, one joke among many classroom teachers that lasted during my entire tenure concerned the "Three Greatest Lies":

1.  The check is in the mail.

2.  I'll still respect you in the morning.

3.  I'm from the AEA and I'm here to help you.

Kudos to these superintendents for wanting to move the debate from the defense of monopolized state  agencies to the real issue: the students.

Craig L Swartz, Adel

Constitution protects freedom from religion

Nearly 40% of our nation’s population now check the “None” square when asked what religion they prefer, including myself. This acknowledgement gives no one else the right to assume that we nones have any less morals or standards than those who check a certain religion, especially now while hypocrisy runs rampant among believers.

The current movement of conservative-dominated governments to misinterpret the constitutional right of freedom of religion to mean that religions have the right to impose their beliefs on others is totally irrational. For example, why anyone would think that my taxpayer money should forcibly be given to tuition waivers so students will be encouraged to go to religious-based schools rather than public schools, is not only wrong, but ludicrous and immoral.

No doubt what’s needed is a clarification of that most fundamental of constitutional rights so it specifies that we have “freedom from religions,” not the least of which is being financially and legally coerced to support religious teachings.

Mary McBee, Tama

Men coaching women reinforces false ideas

I grew up roughly 25 miles from Iowa State University. As a senior in high school, I dated an ISU freshman. After high school, I attended and graduated from Iowa State, and I subsequently taught there for almost six years. I still l live a quick 30-minute drive away. Combined, my ISU connections are strong.

When the ISU women’s basketball team played Stanford on Sunday in a nail-biting game that went into overtime, you might assume I was rooting for my alma mater. You would be wrong.

In spite of having no ties whatsoever to Stanford, I nevertheless pulled hard for the Cardinal. You can be forgiven for wondering why I would desert the home team. It’s simple: the ISU women’s team is coached by a man. Stanford’s team is coached by a woman.

Although Tara VanDerveer is the all-time winningest coach in women's college basketball, her record has nothing to do with why I wanted her team to win. I would have rooted for Stanford had the team been coached by the rookiest of rookies … as long the coach was a woman.

Why does it matter who coaches women and girls? Because it's one more manifestation of the assumption that women need men to be in charge of them, that women can provide labor, but not leadership.

I’ll root for ISU's women’s basketball team as soon a woman coaches the men. So go Stanford — and every other women's team coached by a woman.

Kelly Sargent, Ankeny

Don’t make me pay for killing raccoons

This year’s raccoon bounty bill (House File 2665) is state-sanctioned and taxpayer-subsidized animal cruelty. The legislation’s goal is to incentivize the trapping, clubbing and skinning of raccoons. Lawmakers in committees on the bill have said the fur trapping industry is hurting because of low sales. They also say that raccoons are eating too much corn.

The estimated cost of this farce is $860,000 a year. If someone wants fewer raccoons on his farm, he already has the legal ability to do what he wants. He can already hire a trapper. I shouldn’t have to pay for it. The state Legislature has an opportunity to say no to nonsense like this. The bill should be tabled and shouldn’t even be given a chance for a vote. But when it does inevitably get called to the floor, our state representatives should reject it. Please contact your legislators and tell them to vote no!

Lynn Gallagher, Solon

College basketball teams make Iowa proud

College coaches throughout Iowa have recruited in state, out of state and from around the world. They’ve molded them, men and women into cohesive units that have bought into the plans and worked tirelessly to bring it to fruition. The result for basketball fans, rabid or casual, has been a source of pride and a reason to cheer. From fabulous freshmen to sensational seniors. Some teams now planning for next season, others still in it to win it. They’ve had great seasons and have given us joy in an often-tumultuous world.

Steve Lame, Des Moines

Members of Congress profiting from legislation

In his March 23 newsletter, Sen. Chuck Grassley says he is a family farmer and is working on increasing reference prices and a strong crop insurance program.

My issue is not with what he supports, but that he will profit from his efforts. Members of Congress should be prohibited from proposing, publicly supporting or voting in a committee or sub-committee on legislation from which they will personally profit.

I also question the assertion that he is a family farmer. From the public information on his farms, he does no farming, he is the owner who contracts out the actual farm operation.

Having been born on a farm, graduating from an agricultural college, and working at a university in agriculture, I have a pretty good Idea about what a family farmer is.

Thomas Johnson, Ankeny

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Religion In America (Essay Sample)

Table of Contents

Religion in America

Introduction.

Religion is the condition or state of religious or any cultural structure of designated practices and behaviors, ethics, texts, worldviews, or consecrated places, or administrations that are relating to humanity to the transcendental. Religious relating humanity to what anthropologist Clifford Geertz is referring to as a cosmic “sequence of existence.” However no scholarly consensus over what exactly is constituting a religion. Various religions may or may not be containing different elements which are ranging from the sacred things, faith, divine, a deity, or deities, or some kind of transcendence and ultimacy that will be providing norms and power for the rest of existence. Religious operations may be including, sermons, rituals veneration or commemoration  of supernatural beings festivals, trances, sacrifices, meditation, prayer, music, public service, dance,. Matrimonial services, feasts, initiations, funeral services, or alternative human aspects of human lifestyle. Religions have narratives, and sacred histories which may be protected in symbols, sacred scriptures, and holy settings that direct mostly to be giving a meaning life. Religion may be containing symbolic narratives, which followers sometimes are saying to be true, that are having the side purpose to explain the origin of life, the origin of the universe, and alternative things. In addition to reasoning, faith traditionally, has been reviewed a source of religious ideas. Different religious faiths have thrived in the United States. Many Americans are reporting that religion is playing important function in their lives. This essay attempts to describe religion in America and the role it is playing in the American society.

Diverse religious beliefs and practices are characterizing religion in America. Diversity and religious pluralism has historically been marking The United states, starting with different local beliefs of the pre colonial period. In colonial era, mainline protestant, Anglicans, Catholics and even Jews reached America from Europe. Eastern Orthodoxy has been around since the colonization of Alaska by Russia. Different disagreeing protestant, who abandoned the Church of England, profoundly expanded the religious landscape. The profound reviving gave rising to various missionary protestant churches; membership in Baptist, and Methodist denominations expanded heavily in the second profound revival. The American thinkers and upper classes gave support to deism in the 18th century. The Episcopal denomination came into existence in the American Revolution after breaking from the Church of England. Current protestant sections came into being like Restorationists, Adventism, and other Christian faiths, such as the church of Christ, Latter Day saint Movement, Jehovah’s Witnesses, in addition to Scientists, Unitarian and Universalist bodies all spreading in the 19th century. In the early 20th century, Pentecostalism transpired because of the Azusa Street Awakening. In 1950s Scientology came into being. In 20th century, the Unitarian Universalism prompted from combination of the Universalists and Unitarian denominations. In early 1990s the religious measure of Christians is reducing because of secularization while Hinduism, Islam, Buddhism and alternative religious beliefs are spreading. Studies show that the future of religion in America is proposed to erode as education progresses, and the effects of scientific thinking rising (Greely, 2001).

Population survey

Many adults in the United States are identifying themselves as Christians while near to a quarter assert no religious alignment. A study is stating that, seventy percent of adult society recognized themselves as Christians with forty six percent proclaiming attendance at different churches that could be observed as protestant and twenty percent are proclaiming to be Catholics. The same research is saying that alternative religions like Hinduism, Judaism, and Buddhism all are making up about six percent of the society. As stated by 2012 research by the Pew Forum, thirty six percent of adults in the United States are stating that they attend weekly services or more. The 2016 Gallup poll is describing sixty three percent of adult’s society in Mississippi to be more religious because they attend services weekly. The poll is also saying that the state Mississippi is the most religious and the state of Hampshire is the least religious with only twenty percent (Newport, 2016). Christianity is the most popular religion in the United States constituting the majority of the society. This data is stated by the Connection of Statisticians of American Religious Bodies bulletin which was available in March 2017 following the 2010 data. In all counties in the United States, Christians were the largest religious society. Approximately 46.5% percent of American societies are Protestants, 1.6% of them are Mormons, 20.8% of them are Catholics and 1.7% of them are non religious.

Freedom and Impact of Religion

The federal government of United States was the first government of the nation that had no official state religion that was endorsed. Some states however, started religions in some shape up to 1830s. A study is showing that religion is impacting the daily lives of American people. The findings are stating that highly religious people are more engaging with their extended families and are more likely to be volunteering, more involving in one’s communities and are generally living happier with the manner things are going in their lives. For instance, many highly religious people living in America are referring to those individuals who are praying everyday and are attending services weekly. This highly religious people will be gathering with the extended families at least twice a month. By comparing, just few individuals who are non religious will less likely to be gathering with one’s extended families. Approximately 65% of religious adults are saying to be donating money, goods, and time to go and help the needy. The growth if religious setting such as Islam has sparkled resulting to construction of mosques in the country. This sparkle has recently brought debate and controversy because construction of the mosques is attracting large crowds and protests of people (Suarez, 2010).

In conclusion, religion is the condition or state of religious or any cultural structure of designated practices and behaviors, ethics, texts, world views, or consecrated places, or administrations that are relating to humanity to the transcendental. Religious operations may be including, sermons, rituals veneration or commemoration  of supernatural beings festivals, trances, sacrifices, meditation, prayer, music, public service, dance,. Matrimonial services, feasts, initiations, funerary services, or alternative human aspects of human lifestyle. Diversity and religious pluralism has historically been marking The United states, starting with different local beliefs of the pre colonial period. Christianity is the most popular religion in the United States constituting the majority of the society with the state of Mississippi as the most religious.

• Greely, A. (2001). The Future of Religion in America, Society, 38(3), p32-37
• Suarez, R. (2010). A Closer Look at the Influence of Religion in America. THE RUNDOWN. Retrieved from http://www.pbs.org/newshour/rundown/a-closer-look-at-the-influence-of-religion-in-america/
• Newport, F. (2016). Five Key Findings on Religion in the U. S. Gallup. Retrieved from http://www.gallup.com/poll/200186/five-key-findings-religion.aspx