
Dr. Nathan S. French

Think, for a moment, about the phrase “religious freedom.” What comes to mind?
Within the context of the law, many Americans might point to the first amendment of the U.S. Constitution, which 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.
Within this amendment, there are two clauses that reveal an ongoing negotiation of the question of religious freedom in the United States. The first of these clauses – “Congress shall make no law respecting an establishment of religion” – is often discussed as the establishment clause. The second of these clauses – “or prohibiting the free exercise thereof” – is considered the free exercise clause. Together, they represent the foundation of the legal protections surrounding religious expression. And, taken alongside the other clauses of the first amendment – particularly on the protection of freedom of speech – they are often cited and debated when matters of religious conscience and protest emerge.
Consider the following examples. A high school coach walks out to the fifty-yard line of an American football field and leads both teams in prayer after a game. A standout athlete either refuses to stand or takes a knee before the national anthem begins to play and protests spread. A world heavyweight boxing champion refuses to be inducted into the U.S. armed forces on account of his religious beliefs and practices and it later pardoned by the U.S. Supreme Court.
Notice a trend? All of these cases, to varying degrees, involve an intersection of religions, sports, politics, protest, and patriotism. When Joseph Kennedy took a knee in prayer at the fifty-yard line, Muhammad Ali refused induction, and when Mahmud Abdul Rauf and Colin Kaepernick protested American foreign and domestic policies, all of them cited various constitutional protections as legitimating their practice. While there was nothing illegal about these prayers or protests, they still caused considerable controversy. Why might this be?
Scholars engaged in the academic study of religion often debate, theorize, and apply a concept called “civil religion.” This concept, which was first theorized and defined by sociologist of religion Robert Bellah (1927-2013), as a “public religious dimension … expressed in a set of beliefs, symbols, and rituals” that are woven through American institutions and public displays of patriotism. As scholar of religion Andrew Mark Henry argues, the national anthem, the pledge of allegiance, the U.S. flag, holidays, and sites like the U.S. Capitol Building and Arlington National Cemetery could all be studied within the framework of civil religion.
When we gather, in public, to participate in these rituals, Henry argues, we see one another renew and restore certain understandings of what it is to be American. If these norms, values, and practices are disrupted or challenged – as might occur in a protest or in the observance of an otherwise religious ritual (e.g., prayer) in a public context – we begin to encounter possibly point of controversy.
In the cases of Mahmud Abdul Rauf and Colin Kaepernick, who both observed their protest during observances of the U.S. national anthem before professional sporting events, their protests were, arguably, examples of free speech but were not necessarily protected by the first amendment, as argued by Greg Margarian, a professor of law. The NBA and NFL, for example, could thwart their activities as employees of the league. However, Muhammad Ali’s protest and the prayers of Joseph Kennedy led to broader constitutional questions about freedom of conscience and the free exercise of religion.
Public educational institutions, such as the school district in which Kennedy worked, are frequently cited in U.S. Supreme Court decisions on questions of free exercise and establishment. In fact, more than two-thirds of religious freedom cases brought before the Supreme Court involve establishment clause causes. Of those that most directly effect a student’s classroom experience in a public school, perhaps the most enduring has been the Court’s 1962 decision in School District of Abington Township v. Schempp in which Justice Clark, writing for the majority, argued that a school could not sponsor or mandate biblical readings and recitations of the Christian prayer known as the “Lord’s Prayer.” Yet, Clark argued that there was enduring value to the academic study of religion, establishing a precedent that contributed to the continued teaching about the diversities of the world’s religion in high schools and to the establishment of academic departments dedicated to the secular study of religion at many U.S. public universities.
A complex and ongoing challenge that rests at the heart of these intersections of sports, religion, and protest, however – and one that is often surprising to people – is that there is a lack of a clear definition of religion within the cases argued before the U.S. Supreme Court. Religion, as defined ambiguously by the Court, creates substantial space for continuous debate and interpretation of the establishment and free exercises clauses, affecting how religious freedoms are understood and applied by public institutions.
Reflecting upon the intersections of sport, religion, protest, and democracy highlights these congoing debates and interpretations and underscores the dynamic nature of American civil liberties. Given the ongoing popularity of sports and the ongoing necessity of education in American life, it is certain that as athletes, students, teachers, and coaches engage in either everyday expressions of faith or high-profile protests, their actions will continue to drive our shared conversation on the freedoms protected by the first amendment.
Questions for Class Discussion
As we noted, the “free exercise” and “establishment” clauses relating to religion in the first amendment of the Constitution continue to shape how we encounter religion in public life. Think about your school. How might the “free exercise” and “establishment” clauses affect your experience of religion (or the religions of your classmates) as you go to class, walk down the hall, or learn in class?
Some reading this may attend private schools (i.e., schools often with a tie to a given religious practice) and some may attend public schools. How might our understanding of the “free exercise” and “establishment” clauses allow us to consider how student experiences of religion at these schools might differ?
Think of an act of protest with which you are familiar. Are you able to identify which constitutional protections that the protest might engage? What, in your opinion, might separate a protest from a “religious” protest?
Additional Sources
Laws for Reference
United States
- U.S. Constitution, First Amendment (link)
- Free Exercise Cases
- Reynolds v. United States (1791) (link)
- Cantwell v. Connecticut (1940)(link)
- Wisconsin v Yoder (1972)(link)
- Employment Division v. Smith (1990) (link)
- Kennedy v. Bremerton School District (2022) (link)
- Establishment Cases
- McCollum v. Board of Education (1948) (link)
- Engel v. Vitale (1962) (link)
- Abington Township School District v. Schempp (1963)(link)
- Lemon v. Kurtzman, 1971 (The Lemon Test) (link)
- Wallace v. Jaffree (1985)(link)
- Edwards v. Aguillard (1987) (link)
- Lee v. Weisman (1992) (link)
- Santa Fe School District v. Doe (2000) (link)
- Widmar v. Vincent (1981)(link)
- Board of Education v. Mergens (1990)(link)
- Lamb’s Chapel v. Center Moriches Union Free School District (1993)(link)
- Rosenberger v. University of Virginia (1995)(link)
- Good News Club v. Milford Central School (2001)(link)
- Free Exercise Cases
- U.S. Religious Freedom Restoration Act (1993) (link)
- U.S. Religious Land Use and Institutionalized Persons Act (link)
State of Ohio
- Ohio Constitution, “Rights of Conscience; Education; the Necessity of Religion and Knowledge” (link)
- Ohio Student Religious Liberties Act of 2019 (link)
Interpretation & Debate on the U.S. Constitution & First Amendment Clauses
- National Constitution Center, “Free Exercise Clause,” (link)
- National Constitution Center, “Establishment Clause,” (link)
- National Constitution Center, “Teaching Resources,” (link)
Documentaries & Podcasts
“By the Dawn’s Early Light: Chris Jackson’s [Mahmud Abdul Rauf’s] Story,” 2004 (link, link)
“Kaepernick & America,” 2022 (link)
“Muhammad Ali’s Greatest Fight,” 2013 (link)
“On the Shoulders of Giants,” Throughline, npr, 2019 (link)
Popular Media and Websites
Crash Course, “Freedom of Religion,” (link)
Crash Course, “Religion and Society,” (link)
Religion for Breakfast, “American Civil Religion Series” (link), including “Americans are Religious about America,” “The Flag is a Religious Symbol,” and “The Cold Wear Origins of ‘In God We Trust’”
Scholarship
Bellah, Robert N. “Civil Religion in America.” Daedalus 134, no. 4 (2005): 40–55. (link)
Gorski, Philip. American Covenant: A History of Civil Religion from the Puritans to the Present. 2nd edition. Princeton: Princeton University Press, 2019. (link)
Sullivan, Winnifred Fallers. The Impossibility of Religious Freedom. Princeton, NJ: Princeton University Press, 2007. (link)
Wenger, Tisa. Religious Freedom: The Contested History of an American Ideal. Reprint edition. The University of North Carolina Press, 2020. (link)
Witte, John, Joel A. Nichols, and Richard W. Garnett. Religion and the American Constitutional Experiment. 5th edition. New York: Oxford University Press, 2022. (link)
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