Understanding America's First Freedom

Religious liberty is one of America’s most cherished and defining ideals. Polls indicate that it is important to the vast majority of Americans. Americans also overwhelmingly support LGBTQ nondiscrimination. So why do people advocating for these two values so often knock heads? At least to some extent, the tension arises from different understandings of religious liberty and from the complexity of laws that protect it. 

What Is Religious Liberty? 

Broadly speaking, religious liberty is the freedom to believe and to exercise (or act on) religious beliefs (sometimes referred to as “rights of conscience”) without unnecessary interference by the government. Just as religious liberty protects the practice of religion, it protects the freedom not to practice religion. Like other freedoms, it has limits. 

America’s promise of religious freedom begins with Article VI of the U.S. Constitution, which bans religious tests for officeholders, and the Religion Clauses, which are the first 16 words of the First Amendment. The Religion Clauses consist of two distinct but related parts: the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) and the Free Exercise Clause (“. . . or prohibiting the free exercise thereof”). 

Of course, the federal Constitution is not the only source of law on the relationship between religion and government. State constitutions, federal and state statutes, and administrative regulations address religion in different ways across a variety of contexts. But the Religion Clauses, which apply not only to “Congress” and the federal government but also to state and local governments through the Fourteenth Amendment doctrine of incorporation, provide the structure for how religion is treated in the American legal system.

Two Interrelated Clauses, One Shared Goal

Though the Religion Clauses are sometimes described as in tension, their text and history support reading them together in support of a shared goal: to protect the religious liberty of individuals and religious communities by limiting the role of government. In debates about nondiscrimination laws and religious objections to them, the focus is typically on free exercise protection. But the meaning of religious liberty has developed over time in decisions that consider principles from both.

The Founders’ decision to withdraw religion from the authority of the new federal government was intentional and consistent with the disestablishment movement in the American colonies that was led by religious dissenters, resulting in greater freedom and independence for voluntary religious practice. The Establishment Clause prohibits the government from advancing or privileging religion, from preferring one religion over another or religion over nonreligion, and from becoming excessively entangled with religion. It keeps the government out of the religion business, leaving matters of religion to individuals and religious communities—for the benefit of both religion and government.

The U.S. Supreme Court has struggled to implement the Establishment Clause. Various tests are applied in different cases that consider history, purpose and effect, endorsement, and coercion. Often the approach depends on the context of the challenged action, such as government aid to religious institutions, government-sponsored religious displays, government involvement in religious activities, and disputes involving religious institutions and ecclesiastical concerns. Decisions tend to be extremely fact-driven. 

Despite challenges and changes to this body of law, a few bedrock principles endure. Primary among them is the ban on government sponsorship of religion, long supported by prohibitions on government aid to religious institutions for religious activity. It exists alongside the understanding (as first held in Everson v. Board of Education (1947)) that the Constitution neither requires nor allows the denial of public welfare benefits to citizens because of religious beliefs or status. Another longstanding principle recognizes the government’s limited competence in ecclesiastical matters and its duty to avoid denominational preferences. For example, the Court recognizes a “ministerial exception” that exempts religious institutions from the application of most employment laws, including various nondiscrimination laws, with regard to employees who perform religious functions. 

In contrast to those settled principles, the Court seems particularly divided in cases where excluding religion from public recognition appears to some to evince hostility toward religion. This theme shows up in recent cases upholding official prayers at local government meetings, Town of Greece v. Galloway (2014), and upholding a Latin cross as a war memorial on government property, American Legion v. American Humanist Association (2019).

A striking recent development is the focus on avoiding perceived discrimination against religion in programs that involve government funding. In Trinity Lutheran Church v. Comer (2017), the Court held that a state violated the Free Exercise Clause when it excluded churches from a tax-funded grant program. The decision hinged on a finding that the state discriminated based on religious status in a secular aid program (recycled material for playground improvements) as opposed to different treatment to avoid government aid for religious uses that presumably would violate the Establishment Clause. The Court’s decision is hostile to federalism in new and surprising ways. Its reasoning marked a sharp departure from the “no-aid to religion” principle that dates to the founding era and that reflects a central concern of avoiding religious establishments. The ruling was expanded in Montana v. Espinoza (2020) to prevent the application of a state constitutional provision that would have prohibited a tax credit program from funding private religious education. Despite history and prior precedents that support the distinct treatment of religion in federal and state constitutions, the Court now presumes hostility toward religion when it is singled out for different treatment, at least in funding cases. The constitutional focus on whether government funding is permissible has shifted to whether it is required. 

Free Exercise: Balancing Burdens on Religion against Government Interests

The Free Exercise Clause protects the freedom to worship and keeps the government from interfering unnecessarily with religious practices. It prohibits laws that regulate religious activities as such, absent a compelling reason. Many laws lift government-imposed burdens on religion, including by creating exemptions to otherwise general laws, regardless of whether the Constitution would require them. Such permissible exemptions typically address religious needs without interfering with the rights of others or threatening to involve the government in any unconstitutional preference for religion. 

Whether and to what extent the Free Exercise Clause requires granting exemptions to laws that are not targeted at religious practice, but nevertheless impose incidental burdens on religion, is a long-simmering and significant controversy in religious liberty law. Early cases drew a sharp distinction between laws that regulate beliefs, which violate the Constitution, and laws that regulate conduct within the government’s proper authority.

In Cantwell v. Connecticut (1940), the Court acknowledged that the freedom to believe and the freedom to act are both protected, but not in the same way. Religious conduct, when it takes the form of expression, is protected by the First Amendment’s freedom of speech and press. Other conduct, including religious conduct, is subject to regulation for the protection of society.

In Sherbert v. Verner (1963), a case involving the denial of a claim for unemployment compensation because the employee refused to work on her Sabbath, the Court held that the Free Exercise Clause required a compelling state interest to justify a substantial burden on the practice of religion. The Court held that even where the state’s interests were compelling, they must be pursued without unnecessarily infringing on First Amendment rights. Though not applied in every case, this high standard for free exercise provided the potential for constitutional exemptions to general laws that incidentally burdened religion. 

In Employment Division v. Smith (1990), however, the Court retreated from the idea that the Free Exercise Clause protects against all government-imposed regulations that incidentally burden religion. Smith involved the enforcement of drug laws against Native Americans who ingested peyote as a religious sacrament. The Court held that the clause does not require religious exemptions to neutral laws of general applicability. Absent the targeting of religion for special disfavor and a few other specific kinds of cases that justify greater protection, Smith left the protection of religious conduct to the other branches of government. 

The Smith decision was widely criticized and eventually led to the passage of the Religious Freedom Restoration Act (RFRA) in 1993 and the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. Both laws provide heightened statutory protections for religious exercise. Under RFRA (which applies only to the federal government) and RLUIPA (which applies only to state and local governments), the government may not substantially burden a person’s exercise of religion unless imposition of the burden is the least restrictive means of achieving a compelling governmental interest. A similarly high standard for religious claims applies under many state constitutions or RFRA-like state laws that attempt to balance free exercise claims against other state interests. 

The Supreme Court has upheld these statutes and their application in a number of cases that demonstrate strong protection for religiously motivated conduct. In Burwell v. Hobby Lobby (2014), the Court held that RFRA protected a closely held private corporation whose owners had religious objections to the contraceptive mandate of the Affordable Care Act. The Court assumed the government’s interest in requiring specific no-cost health-care coverage for employees was compelling. However, it held that the government had violated RFRA because the administration had provided an accommodation for religious entities to avoid the religious conflict but had not extended that accommodation to private, for-profit corporations like Hobby Lobby. 

The 5–4 Hobby Lobby decision renewed debates about the proper legal standard for religious liberty claims. Congress intended RFRA to incentivize win-win solutions for religion and government without guaranteeing a specific outcome in any particular kind of dispute. After Hobby Lobby, litigants have been encouraged to argue that any exception to a general policy, including exceptions provided for the benefit of religious claimants, reveals that the government lacks a compelling interest in denying other exceptions. 

As recently affirmed by the Supreme Court in Fulton v. City of Philadelphia (2021), even where RFRA does not apply and Smith is still the rule, the compelling interest test may still apply and is difficult for the government to meet. The Fulton majority found that a nondiscrimination provision for government contractors was not “generally applicable” because a contract provision gave a city official the discretion to make exceptions to the law. Though it had never been used to provide an exemption, that provision was the legal linchpin for a unanimous ruling that Philadelphia must provide a religious exemption in its foster care contracts. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch concurred only in the result and argued in separate opinions that Smith should be revisited. At least two other justices seem to agree but indicated they would wait before choosing whether and how to replace the Smith standard.

Search for Balance and Meaningful Separation

While there is considerable historical and doctrinal support for the proposition that both of the First Amendment’s Religion Clauses are essential to ensuring religious liberty, religious liberty law is in a state of transition. Balance is not a primary concern of the current Supreme Court; its focus appears to be on eliminating perceived discrimination toward religion. Traditionally, it was understood that certain government exemptions for religion might be allowed under the Establishment Clause that were not required by the Free Exercise Clause. Likewise, certain efforts to maintain distance between government and religion were allowed, though not required. Currently, the Court seems to be narrowing what the Establishment Clause prohibits while expanding what the Free Exercise Clause requires. The result is less “play in the joints” between the clauses or between the clauses and state laws, and thus less room for the balanced accommodation of competing interests.

A case-by-case approach to alleviating substantial burdens on religion is useful for achieving fairness among different religions, particularly for religious minorities. But not all burdens on religion can or should be eliminated where other government interests are at stake, particularly in the context of public health, safety, and welfare measures. While the Court has recognized LGBTQ nondiscrimination as a compelling interest, Fulton holds that it is not compelling in all situations. What remains uncertain is whether the Court’s current approach will likewise consider the different impacts on individuals that arise in other settings involving relationships between employers and employees, vendors and customers, and the government and beneficiaries of its services. Continued realignment of constitutional values in this area appears likely with the Court’s increasing number of religion-related cases accepted for review.

Over-emphasis on ensuring religion is treated as well as or better than competing government concerns, regardless of context and any actual burden on religion, may ultimately harm religious liberty. Not all distinctive treatment of religion should be viewed as invidious discrimination. Such a view is inconsistent with the meaningful separation of religion and government that the Religion Clauses have historically provided. Religious liberty law should not privilege religion to the detriment of important government interests. But it should respect religious differences and provide accommodations that avoid religious conflict.

The Supreme Court’s recognition of a constitutional right to marriage for same-sex couples, and its interpretation of federal employment laws that prohibit discrimination based on “sex” to include “sexual orientation and gender identity,” increased expectations for LGBTQ nondiscrimination. Where LGBTQ nondiscrimination laws exist, many include religious exemptions that are intended to balance interests and decrease conflicts. But the existence and scope of many nondiscrimination laws that protect LGBTQ individuals in employment, housing, health care, and public accommodations differ significantly based on geography. Regardless of efforts to expand such laws, the Supreme Court’s religious liberty rulings invite continuing constitutional and statutory claims for broader religious exemptions.