Embedded Files
Chapter Five
The First Amendment Part One:
Religious Protections
Chapter Outline
Chapter Outline
A. Overview
B. The Establishment Clause
Historical Context and the Lemon Test
Government-Sponsored Prayer
Religious Displays on Government Property
C. The Free Exercise Clause
A. Overview
Since its founding in 1789, the U.S. Supreme Court has issued more than 30,000 decisions on the merits (Harvard Law Review, n.d.). The exact number of Supreme Court cases involving the First Amendment is unknown, but the Free Speech Center’s database currently lists over 870 significant First Amendment rulings across federal and state courts. Historians and constitutional law experts point to several reasons for the large number of cases that have involved the First Amendment, but most agree two reasons stand out more than others: (1) the amendment’s legacy in protecting religion and speech, and (2) the complicated nature of the amendment due to its broad range of protections (Free Speech Center, n.d.).
The framers of the Constitution were committed to protecting religious liberty because they knew the dangers of government-imposed religion. Queen Mary I of England (1553–1558) ordered hundreds of Protestants to be executed for their faith, and Queen Elizabeth I (1558–1603) instituted numerous restrictions on Catholics for refusing to conform to the Church of England, such as fines, loss of political rights, and other penalties (Library of Congress, n.d.).
Later on in the American colonies, these patterns of persecution continued. Puritan leaders in Massachusetts whipped, banished, and even executed Quakers. Catholics in colonies such as Maryland faced restrictions on worship and on their right to own property. From the 1800s through the present, the American tradition of fiercely protecting speech and religion has been litigated in the courts, debated in legislatures, and analyzed in the media, while also being actively discussed by the general public. As a result, the protection of religious freedom has become a core part of the nation’s identity and civic culture (Library of Congress, n.d.).
In addition to the First Amendment’s legacy in the United States, the amendment’s text itself contains multiple guarantees that are not obvious at first glance. The text of the First Amendment provides, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
When analyzed provision by provision, it becomes easier to understand both the scope of the First Amendment’s protections and why they have generated extensive litigation. The amendment contains the following guarantees:
Establishment Clause - The government cannot create an official religion, give preference to one religion over another, or promote religion in general.
Free Exercise of Religion - The government cannot ban religious practices; however, there are exceptions to this general rule if the religious practice can cause harm to others.
Free Speech - The government cannot restrict free speech, generally speaking, and this includes speech that is symbolic in nature, as well as advertising. There are exceptions to this general rule for issues regarding public safety, obscenity, fraud, defamation, and other activities. Laws affecting communications using the Internet and other forms of technology are analyzed under the free speech clause.
Freedom of the Press — The clause refers to the right of journalists and the media to publish information and opinions without government interference. Like all amendments, there are narrow exceptions to this right.
Freedom to Assemble and Petition the Government — U.S. citizens have the right to gather peacefully, demonstrate, and ask the government to address their concerns. The government can establish reasonable time, place, and manner restrictions on these activities.
Freedom of Association — This right is inferred from the First Amendment, rather than explicitly stated, and protects the ability to join, form, or leave groups and organizations without government restriction.
(Only the clauses in blue above will be discussed here in Chapter Five. The rest will be covered in Chapter Six.)
B. The Establishment Clause
Historical Context and the Lemon Test
In 1802, the Danbury Baptist Association, a network of Connecticut Baptist churches, wrote to President Jefferson because the state’s official Congregational Church required religious dissenters like Baptists to pay taxes for its support. This resulted in the Baptists being compelled to finance another church and left their religious liberty dependent on lawmakers. Jefferson famously wrote back to the Baptists stating, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State” (Thomas Jefferson, Letter to the Danbury Baptist Association).
A modern translation of Jefferson’s famous statement might be expressed as follows, “Congress cannot create a national religion or interfere with people’s right to practice their faith, and this principle establishes a clear wall separating church and state.” In 1947, the Supreme Court made clear that the Establishment Clause is incorporated through the Fourteenth Amendment (Everson v. Board of Education). This means that state and local governments, not just the federal government, must also comply with the Establishment Clause and refrain from actions that promote or endorse religion.
Once the Establishment Clause was applied to the states, the Court was required to develop standards for evaluating when government involvement with religion goes too far. In Lemon v. Kurtzman (1971), the Supreme Court struck down Pennsylvania and Rhode Island programs that provided public funding to supplement teacher salaries and instructional materials in religious schools. From this decision, the Court established the well-known Lemon Test, a framework for evaluating Establishment Clause cases. Please read the case excerpt below and see if you can identify the three-prong test.
Image 5.1
(Wuerker, 2021.)
Landmark Case Spotlight:
Case Excerpt (Not Full Case)
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MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
These two appeals raise questions as to Pennsylvania and Rhode Island statutes providing state aid to church-related elementary and secondary schools. Both statutes are challenged as violative of the Establishment and Free Exercise Clauses of the First Amendment and the Due Process Clause of the Fourteenth Amendment.
Pennsylvania has adopted a statutory program that provides financial support to nonpublic elementary and secondary schools by way of reimbursement for the cost of teachers' salaries, textbooks, and instructional materials in specified secular subjects. Rhode Island has adopted a statute under which the State pays directly to teachers in nonpublic elementary schools a supplement of 15% of their annual salary. Under each statute, state aid has been given to church-related educational institutions. We hold that both statutes are unconstitutional.
I The Rhode Island Statute The Rhode Island Salary Supplement Act was enacted in 1969. It rests on the legislative finding that the quality of education available in nonpublic elementary schools has been jeopardized by the rapidly rising salaries needed to attract competent and dedicated teachers. The Act authorizes state officials to supplement the salaries of teachers of secular subjects in nonpublic elementary schools by paying directly to a teacher an amount not in excess of 15% of his current annual salary. As supplemented, however, a nonpublic school teacher's salary cannot exceed the maximum paid to teachers in the State's public schools, and the recipient must be certified by the state board of education in substantially the same manner as public school teachers.
The Act also requires that teachers eligible for salary supplements must teach only those subjects that are offered in the State's public schools. They must use "only teaching materials which are used in the public schools." Finally, any teacher applying for a salary supplement must first agree in writing "not to teach a course in religion for so long as or during such time as he or she receives any salary supplements" under the Act.
The court held a hearing at which extensive evidence was introduced concerning the nature of the secular instruction offered in the Roman Catholic schools whose teachers would be eligible for salary assistance under the Act. The District Court concluded that the Act violated the Establishment Clause, holding that it fostered "excessive entanglement" between government and religion. In addition, two judges thought that the Act had the impermissible effect of giving "significant aid to a religious enterprise.” We affirm.
The Pennsylvania Statute Pennsylvania has adopted a program that has some, but not all, of the features of the Rhode Island program. The Pennsylvania Nonpublic Elementary and Secondary Education Act was passed in 1968 in response to a crisis that the Pennsylvania Legislature found existed in the State's nonpublic schools due to rapidly rising costs. The statute affirmatively reflects the legislative conclusion that the State's educational goals could appropriately be fulfilled by government support of "those purely secular educational objectives achieved through nonpublic education. . . ."
The organizational plaintiffs appellants are associations of persons resident in Pennsylvania declaring belief in the separation of church and state; individual plaintiffs appellants are citizens and taxpayers of Pennsylvania. Appellant Lemon, in addition to being a citizen and a taxpayer, is a parent of a child attending public school in Pennsylvania. Lemon also alleges that he purchased a ticket at a race track, and thus had paid the specific tax that supports the expenditures under the Act. Appellees are state officials who have the responsibility for administering the Act. In addition seven church-related schools are defendants appellees.
A three-judge federal court was convened. The District Court held that the individual plaintiffs appellants had standing to challenge the Act, 310 F. Supp. 42. The organizational plaintiffs appellants were denied standing under Flast v. Cohen, . The court granted appellees' motion to dismiss the complaint for failure to state a claim for relief. It held that the Act violated neither the Establishment nor the Free Exercise Clause, Chief Judge Hastie dissenting. We reverse.
II In Everson v. Board of Education, 330 U. S. 1 (1947), this Court upheld a state statute that reimbursed the parents of parochial school children for bus transportation expenses. There, MR. JUSTICE BLACK, writing for the majority, suggested that the decision carried to "the verge" of forbidden territory under the Religion Clauses.Candor compels acknowledgment, moreover, that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.
The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead, they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U. S. 664, 397 U. S. 668 (1970).
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U. S. 236, 392 U. S. 243 (1968); finally, the statute must not foster "an excessive government entanglement with religion." Inquiry into the legislative purposes of the Pennsylvania and Rhode Island statutes affords no basis for a conclusion that the legislative intent was to advance religion.
III In Walz v. Tax Commission, supra, the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship. That holding, however, tended to confine, rather than enlarge, the area of permissible state involvement with religious institutions by calling for close scrutiny of the degree of entanglement involved in the relationship.
Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Fire inspections, building and zoning regulations, and state requirements under compulsory school attendance laws are examples of necessary and permissible contacts. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.
In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Here we find that both statutes foster an impermissible degree of entanglement.
(a) Rhode Island program The District Court made extensive findings on the grave potential for excessive entanglement that inheres in the religious character and purpose of the Roman Catholic elementary schools of Rhode Island, to date the sole beneficiaries of the Rhode Island Salary Supplement Act. The church schools involved in the program are located close to parish churches. This understandably permits convenient access for religious exercises, since instruction in faith and morals is part of the total educational process. The school buildings contain identifying religious symbols such as crosses on the exterior and crucifixes, and religious paintings and statues either in the classrooms or hallways. Although only approximately 30 minutes a day are devoted to direct religious instruction, there are religiously oriented extracurricular activities.
Approximately two-thirds of the teachers in these schools are nuns of various religious orders. Their dedicated efforts provide an atmosphere in which religious instruction and religious vocations are natural and proper parts of life in such schools. Indeed, as the District Court found, the role of teaching nuns in enhancing the religious atmosphere has led the parochial school authorities to attempt to maintain a one-to-one ratio between nuns and lay teachers in all schools, rather than to permit some to be staffed almost entirely by lay teachers.
On the basis of these findings, the District Court concluded that the parochial schools constituted "an integral part of the religious mission of the Catholic Church." The various characteristics of the schools make them "a powerful vehicle for transmitting the Catholic faith to the next generation." This process of inculcating religious doctrine is, of course, enhanced by the impressionable age of the pupils, in primary schools particularly. In short, parochial schools involve substantial religious activity and purpose.
The substantial religious character of these church-related schools gives rise to entangling church-state relationships of the kind the Religion Clauses sought to avoid. Although the District Court found that concern for religious values did not inevitably or necessarily intrude into the content of secular subjects, the considerable religious activities of these schools led the legislature to provide for careful governmental controls and surveillance by state authorities in order to ensure that state aid supports only secular education.
We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.
There is another area of entanglement in the Rhode Island program that gives concern. The statute excludes teachers employed by nonpublic schools whose average per-pupil expenditures on secular education equal or exceed the comparable figures for public schools. In the event that the total expenditures of an otherwise eligible school exceed this norm, the program requires the government to examine the school's records in order to determine how much of the total expenditures is attributable to secular education and how much to religious activity. This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids.
(b) Pennsylvania program The Pennsylvania statute also provides state aid to church-related schools for teachers' salaries. The complaint describes an educational system that is very similar to the one existing in Rhode Island. According to the allegations, the church-related elementary and secondary schools are controlled by religious organizations, have the purpose of propagating and promoting a particular religious faith, and conduct their operations to fulfill that purpose. Since this complaint was dismissed for failure to state a claim for relief, we must accept these allegations as true for purposes of our review.
As we noted earlier, the very restrictions and surveillance necessary to ensure that teachers play a strictly nonideological role give rise to entanglements between church and state. The Pennsylvania statute, like that of Rhode Island, fosters this kind of relationship. Reimbursement is not only limited to courses offered in the public schools and materials approved by state officials, but the statute excludes "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." In addition, schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular, as distinguished from the religious, instruction.
The Pennsylvania statute, moreover, has the further defect of providing state financial aid directly to the church-related school. "Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards. . . ."
IV A broader base of entanglement of yet a different character is presented by the divisive political potential of these state programs. In a community where such a large number of pupils are served by church-related schools, it can be assumed that state assistance will entail considerable political activity. Partisans of parochial schools, understandably concerned with rising costs and sincerely dedicated to both the religious and secular educational missions of their schools, will inevitably champion this cause and promote political action to achieve their goals. Those who oppose state aid, whether for constitutional, religious, or fiscal reasons, will inevitably respond and employ all of the usual political campaign techniques to prevail. Candidates will be forced to declare, and voters to choose. It would be unrealistic to ignore the fact that many people confronted with issues of this kind will find their votes aligned with their faith.
Ordinarily, political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.
The potential for political divisiveness related to religious belief and practice is aggravated in these two statutory programs by the need for continuing annual appropriations and the likelihood of larger and larger demands as costs and populations grow. The Rhode Island District Court found that the parochial school system's "monumental and deepening financial crisis" would "inescapably" require larger annual appropriations subsidizing greater percentages of the salaries of lay teachers. Although no facts have been developed in this respect in the Pennsylvania case, it appears that such pressures for expanding aid have already required the state legislature to include a portion of the state revenues from cigarette taxes in the program.
V The progression argument, however, is more persuasive here. We have no long history of state aid to church-related educational institutions comparable to 200 years of tax exemption for churches. Indeed, the state programs before us today represent something of an innovation. We have already noted that modern governmental programs have self-perpetuating and self-expanding propensities. These internal pressures are only enhanced when the schemes involve institutions whose legitimate needs are growing and whose interests have substantial political support. Nor can we fail to see that, in constitutional adjudication, some steps which, when taken, were thought to approach "the verge" have become the platform for yet further steps. A certain momentum develops in constitutional theory, and it can be a "downhill thrust" easily set in motion but difficult to retard or stop. Development by momentum is not invariably bad; indeed, it is the way the common law has grown, but it is a force to be recognized and reckoned with. The dangers are increased by the difficulty of perceiving in advance exactly where the "verge" of the precipice lies. As well as constituting an independent evil against which the Religion Clauses were intended to protect, involvement or entanglement between government and religion serves as a warning signal.
Finally, nothing we have said can be construed to disparage the role of church-related elementary and secondary schools in our national life. Their contribution has been and is enormous. Nor do we ignore their economic plight in a period of rising costs and expanding need. Taxpayers generally have been spared vast sums by the maintenance of these educational institutions by religious organizations, largely by the gifts of faithful adherents. The merit and benefits of these schools, however, are not the issue before us in these cases. The sole question is whether state aid to these schools can be squared with the dictates of the Religion Clauses.
The judgment of the Rhode Island District Court in No. 569 and No. 570 is affirmed. The judgment of the Pennsylvania District Court in No. 89 is reversed, and the case is remanded for further proceedings consistent with this opinion.
B. The Establishment Clause - continued
In the years following Lemon v. Kurtzman (1971), the Supreme Court applied the Lemon Test strictly in cases involving government aid to religious schools. In Committee for Public Education v. Nyquist (1973), the Court struck down tuition reimbursements and tax benefits for parents of students attending religious schools, concluding that the program failed Lemon’s requirements. Later, in Aguilar v. Felton (1985), the Court invalidated a program that sent public school teachers into religious schools to provide remedial instruction, emphasizing that ongoing government oversight created excessive entanglement between church and state. Together, these cases illustrate the Court’s early reluctance to permit public funding arrangements that closely involved religious institutions.
By 2002, the Court began to move away from the strict application of the Lemon Test when it revisited issues of public funding and religion in Zelman v. Simmons-Harris (2002). In that case, the Court upheld an Ohio school voucher program that allowed parents to use public funds at private religious schools. Rather than mechanically applying the Lemon Test, the Court relied on its underlying principles, focusing on whether the program was neutral toward religion and provided genuine private choice. The Court concluded that any benefit to religious schools resulted from the independent decisions of parents rather than direct government advancement of religion. This reasoning was later echoed in Carson v. Makin (2022), where the Court held that when a state provides public funding for private schools, it may not exclude religious schools solely because of their religious character, as doing so would violate the Free Exercise Clause.
In late 2024, another Establishment Clause funding issue arose in Oklahoma when State Superintendent of Public Instruction Ryan Walters allocated $3 million in state funds for the purchase of Bibles. He announced an initial order of 500 Bibles for Advanced Placement Government classrooms, and schools in the state were reported to have begun distributing the “Trump-endorsed” God Bless the U.S.A. King James Bibles. They included not only the biblical text but also the Declaration of Independence, the Pledge of Allegiance, the Constitution, and the Bill of Rights. Although the Oklahoma Supreme Court temporarily blocked the use of public funds for these purchases three months later, the controversy sparked lawsuits and broader public debate. In late 2025, the Oklahoma Supreme Court dismissed a lawsuit challenging the Bible-in-schools mandate after state education officials announced they would no longer enforce the original policy involving the funding and distribution of the Bibles, effectively ending the dispute (Oklahoma Supreme Court dismisses Bible mandate lawsuit, 2025).
A related funding controversy emerged in June 2025, when an Ohio trial court ruled that the state’s universal voucher program, known as EdChoice, violated the Ohio Constitution by diverting public funds away from the system of common schools and by channeling taxpayer money to religious institutions. The ruling rested on independent state constitutional grounds, including concerns about the financial impact on nonreligious public schools, and the case has not reached the U.S. Supreme Court (PFPS, 2025). As of early 2026, the EdChoice program remains in effect while the state appeals the decision within Ohio’s court system, leaving the ultimate outcome unresolved.
The Lemon Test served as a helpful guide for understanding how courts analyze government funding involving religion, particularly whether such arrangements resulted in excessive entanglement between church and state. Over time, the Supreme Court has shifted toward more context-specific approaches, emphasizing factors such as neutrality, private choice, and historical practice. Cases involving school prayer and religious displays on government property raise different constitutional concerns and require separate analysis. In most instances, school prayer cases are evaluated using the coercion test, while cases involving religious displays are analyzed using the endorsement test. The following sections explore how these standards are applied in practice.
2. Government-Sponsored Prayer
Considering Jefferson’s famous quote about the metaphorical wall separating church and state, it may surprise some Americans to learn that Congress begins each session with a prayer, a tradition dating back to 1789. The constitutionality of congressional prayer was upheld in Marsh v. Chambers (1983), in which the Court ruled that legislative prayer is consistent with historical tradition. Similarly, in Town of Greece v. Galloway (2014), the Court extended this reasoning to permit prayers before local government meetings. In doing so, the Court emphasized what is known as the coercion test, which has been used frequently when analyzing government-sponsored prayer. This test asks whether individuals are pressured, directly or indirectly, to participate in a religious exercise. Because attendance at such meetings is voluntary and no penalties are imposed for non-participation, the Court found no unconstitutional coercion (Legal Information Institute, n.d.).
The Supreme Court has taken a different approach when analyzing prayer in public schools, where attendance is not voluntary and students are more susceptible to influence. In Engel v. Vitale (1962), the Court struck down a policy of the New York Board of Regents that required teachers to recite a state-composed prayer during the school day. The Court held that government-sponsored prayer violates the Establishment Clause. This decision sparked significant backlash, with many Americans accusing the Court of hostility toward religion for rejecting even voluntary, non-denominational school prayer. In response, some members of Congress introduced proposed constitutional amendments to restore prayer in public schools, although none have been ratified (Library of Congress, n.d.).
Before the controversy over the Engel case had a chance to die down, the Court decided Abington School District v. Schempp (1963). This case required the Justices to consider whether reading the Bible in public schools violated the Establishment Clause. The Court ruled that mandatory Bible readings and recitation of the Lord’s Prayer in public schools were unconstitutional. This decision provoked even greater controversy than Engel because daily Bible readings and recitation of the Lord’s Prayer were long-standing practices in many public schools. The backlash fueled claims that the Court was removing God from public life and led to a wave of proposed constitutional amendments to restore school prayer and Bible reading. None have been successful.
In the 1980s, the Court again addressed cases involving prayer in public schools. In Wallace v. Jaffree (1985), it struck down an Alabama law that authorized a daily moment of silence for meditation or voluntary prayer, finding that its purpose was clearly religious and therefore unconstitutional. A few years later, in Lee v. Weisman (1992), the Court applied the coercion test to strike down clergy-led prayers at public school graduations, reasoning that the state’s involvement and the inadvertent social pressure on students to participate amounted to unconstitutional government coercion.
In Santa Fe Independent School District v. Doe (2000), the Supreme Court struck down a school policy that allowed student-led prayers to be delivered over the school’s public-address sound system at home football games. Although the prayers did not occur during the regular school day, they were broadcast at school-sponsored events using official school equipment, which led the Court to conclude that the practice amounted to government endorsement of religion and created coercive pressure on students required to attend or participate in the events.
Given the Court’s earlier approach from the 1960s through the 2000s, many were surprised when, in Kennedy v. Bremerton School District (2022), the Court ruled in favor of a high school football coach who prayed on the field after games. The Justices emphasized that the prayers occurred outside the classroom, after instructional time, and without students being required to participate. As a result, the Court concluded that the coach’s actions constituted private religious expression protected by the Free Exercise and Free Speech Clauses, rather than a government endorsement of religion, underscoring that context plays a critical role in Establishment Clause analysis.
3. Religious Displays on Government Property
While prayer cases often focus on issues of participation and coercion, disputes over religious symbols require courts to consider how government actions are perceived by the public. In Lynch v. Donnelly (1984), the city of Pawtucket, Rhode Island, included a nativity scene as part of its annual holiday display in a downtown shopping district, alongside secular symbols such as Santa Claus, reindeer, and Christmas trees. The Court upheld the display, reasoning that it recognized the cultural and historical aspects of the holiday season and did not primarily advance or endorse religion. In a concurring opinion, Justice O’Connor introduced what became known as the endorsement test, which asks whether a government action would be perceived by a reasonable observer as endorsing or disapproving of religion.
In County of Allegheny v. ACLU (1989), the Court applied the endorsement test more strictly than it had in Lynch by evaluating two different holiday displays. The Court held that a nativity scene displayed alone inside the Allegheny County Courthouse violated the Establishment Clause because it conveyed government endorsement of Christianity. By contrast, the Justices upheld a menorah displayed outside the City-County Building alongside a Christmas tree and other holiday decorations, reasoning that, in that broader context, the display reflected cultural pluralism rather than promoting a single faith. The Allegheny decision emphasized that context matters when evaluating whether a specific government action appears to endorse religion.
While cases like County of Allegheny focused on whether government actions appeared to endorse religion, growing concern soon emerged that religious practices were being restricted too aggressively. In response to these concerns, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 to strengthen protections for religious exercise. RFRA required the government to demonstrate a compelling interest and to use the least restrictive means whenever it substantially burdened a religious practice. However, in City of Boerne v. Flores (1997), the Supreme Court limited RFRA’s scope. That case arose when a Catholic church in Texas was denied a permit to expand under a local historic preservation ordinance. The Court ruled that Congress had exceeded its constitutional authority by applying RFRA to the states and held that RFRA applies only to the federal government.
As the Court continued to refine how context shapes Establishment Clause analysis, it confronted the constitutionality of longstanding religious monuments on public property. Later, in Van Orden v. Perry (2005), the Court upheld a Ten Commandments monument on the Texas State Capitol grounds, stating that it carried historical and secular significance rather than endorsing religion, because it stood among several other monuments and historical markers in the same area. This decision has been heavily criticized because the other displays on the Capitol grounds are not religious, and the Ten Commandments are inherently religious in nature.
While the Court has upheld some longstanding religious monuments in public spaces, more recent efforts to place religious texts in public school classrooms have faced greater constitutional scrutiny. Similar measures arose in Texas, where a law passed in June 2025 required the Ten Commandments to be displayed in classrooms. In August 2025, a federal judge temporarily blocked the law and granted a preliminary injunction after families and faith leaders argued that the mandate violated the Establishment Clause. The judge emphasized that such displays could pressure students into religious observance and noted that there is no longstanding tradition of permanently posting the Ten Commandments in public school classrooms (Texas Tribune, 2025). Similar laws in Louisiana and Arkansas have also been halted by courts, suggesting that legal battles over these measures are ongoing and may ultimately reach the U.S. Supreme Court (The Guardian, 2025).
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(Ravitch, 2023)
C. The Free Exercise Clause
While the Establishment Clause limits the government’s role in promoting religion, the Free Exercise Clause focuses on protecting people’s right to practice their faith. Over the years, the Supreme Court has faced questions about what happens when certain religious practices conflict with general laws or negatively affect public safety. The following cases show how the Court’s approach has evolved from early rulings on polygamy to modern debates over nondiscrimination and religious liberty.
The Supreme Court first addressed whether the free exercise of religion could be limited in Reynolds v. United States (1879), which challenged the constitutionality of a federal law that banned polygamy, which is the practice of having more than one spouse at the same time. The Court upheld the law, ruling that while religious belief is absolutely protected, religiously motivated conduct may be regulated, establishing the important “belief–action” distinction.
The next major Free Exercise case did not arise until six decades later, when the Court decided Cantwell v. Connecticut (1940). In that case, Jehovah’s Witnesses were arrested for soliciting without a permit under a Connecticut law that let officials decide who could solicit for religious or charitable purposes. The Supreme Court struck down the law, holding that the Free Exercise Clause applies to the states through the Fourteenth Amendment and that giving officials discretion over whether or not to allow religious solicitation risked censorship. The Court reaffirmed that religious belief is fully protected, while religiously motivated conduct may be regulated only through neutral, generally applicable laws.
After Cantwell v. Connecticut established that the Free Exercise Clause applied to the states, the Court was soon asked to decide how far those protections extended. In Sherbert v. Verner (1963), a Seventh-day Adventist was denied unemployment benefits after refusing to work on Saturdays, her day of worship. The Court ruled in her favor, holding that when the government substantially burdens a person’s religious practice, it must demonstrate a compelling interest and use the least restrictive means available. This “Sherbert Test” became the standard for evaluating free exercise claims for nearly three decades.
Less than a decade later, in Wisconsin v. Yoder (1972), the Supreme Court considered whether Amish parents could be compelled to comply with state compulsory education laws or whether they could continue their religious practice of educating their children only through the eighth grade. To explore this case further, click here to watch a video about it or click here to read the case. Did the Court rule in favor of the Amish families or the state? What reasoning did the Justices provide for their decision?
While Yoder demonstrated the Court’s willingness to grant religious exemptions when state laws imposed a substantial burden on religious practice, the balance shifted two decades later. In Employment Division v. Smith (1990), two members of the Native American Church were fired from their jobs after admitting to using peyote as part of a religious ceremony, conduct that violated Oregon’s criminal drug laws. When the state subsequently denied them unemployment benefits, the claimants argued that this denial violated their Free Exercise rights. Unlike in Sherbert or Yoder, the Court ruled against the claimants, holding that the Free Exercise Clause does not excuse individuals from complying with neutral, generally applicable laws, even when those laws incidentally burden religious practices. This decision marked a major turning point and sparked significant debate over the limits of free exercise protections.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court examined a conflict between the free exercise of religion and anti-discrimination protections. Jack Phillips, a baker and devout Christian, declined to create a custom wedding cake for a same-sex couple, explaining that designing such a cake would force him to express a message contrary to his sincerely held religious beliefs. Phillips emphasized that he was not refusing service altogether and was willing to sell the couple any of the ready-made products available in the store. The couple filed a complaint under Colorado’s anti-discrimination law, and the state’s Civil Rights Commission ruled against him. When the case reached the Supreme Court, the justices issued a narrow decision in Phillips’s favor. The Court found that the Colorado Civil Rights Commission had displayed hostility toward Phillips’s religious beliefs during the proceedings, pointing to disparaging comments about religion and a failure to treat his faith-based objections with neutrality, as required under the Free Exercise Clause. The Court did not recognize a broad constitutional right to refuse service but instead focused on the Commission’s lack of neutrality, which violated the government’s obligation under the Free Exercise Clause.
After the Supreme Court’s decision in Masterpiece Cakeshop, Phillips became the subject of another lawsuit when a transgender woman, Autumn Scardina, asked him to make a cake celebrating a gender transition. Phillips again refused, citing his religious beliefs, and Scardina filed a complaint under Colorado’s anti-discrimination law. This second case, Scardina v. Masterpiece Cakeshop, differed from the earlier lawsuit in an important way. The request was not for a custom wedding cake, but for a relatively simple cake with specific colors of frosting and filling, rather than a unique or expressive design. Unlike the prior case, the Colorado courts found no evidence that state officials had shown hostility toward Phillips’s religious beliefs. In 2023, the Colorado Court of Appeals upheld the ruling against him, concluding that his refusal violated the state’s anti-discrimination law. Phillips sought review by the U.S. Supreme Court, but the Court declined to grant certiorari, allowing the Colorado ruling to stand and leaving Scardina with a legal victory.
Conclusion
The Establishment Clause and the Free Exercise Clause work together to protect religious freedom, making sure the government does not promote religion while also protecting people’s right to practice their faith. The Supreme Court has created different tests and rules in these cases, and sometimes the outcomes may seem to conflict with each other. That is why courts evaluate each case individually, using precedent and the specific context before them to balance these rights in a fair and consistent manner.
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