Photo by Clay Banks

At the time of our nation’s founding, American Christians resisted the idea of a government involved in their religious activity. Codifying this resistance, they created a twofold system for protecting the religious freedom of every American within the First Amendment—not only declaring that the government not infringe upon the free exercise of religion, but placing on equal footing the declaration that there was to be no law respecting an establishment of religion. The legal approach to these constitutional matters has, in recent years, shifted in tandem with changes to Christianity’s position among the general populace, becoming more protective of institutional religious liberty as traditional mainline Christianity has decreased in its membership and influence over American culture. Many Christians see these legal victories as celebratory occurrences, but it bears asking whether these political gains have come at a much higher price, inhibiting a much more important Christian pursuit than that of legal protections.

Recent changes in constitutional religious liberty law have favored a broadly permissive interpretation of the protection of the free exercise of religion. The Supreme Court has long struck different balances between preserving both constitutional mandates on religious liberty, as the two clauses often suggest different outcomes in the same case. Over the past twenty years, the Roberts Court has trended towards an understanding of religious liberty that relies more heavily on the protection of free exercise than the prohibition of establishment. The newest iteration of the Roberts Court, with the ascension of Justice Barrett to the bench, has accelerated the progress towards expanding the understanding of both what religious activity is considered protected exercise as well as what organizations are entitled to such protections.

The changing religious makeup of the United States has made for strange historical bedfellows in permissive free exercise jurisprudence. As the Court has grown more conservative, it has shown more desire to return to the free exercise standards established by the Warren Court in the 1960s, which was the high point of judicial liberalism. The Warren Court granted the strongest constitutional protection available to rights, a standard of strict scrutiny, to those claiming their free exercise had been infringed upon. At the time, most of these claimants were from minority religious groups such as the Amish or the Jehovah’s Witnesses, as mainline Christianity was dominant in American faith life. The Burger and Rehnquist Courts that followed were more conservative in their composition and began the project of modestly limiting free exercise protections. In 1990, the infamous Employment Division v. Smith case, authored by Justice Scalia, reduced the protection to the lowest level—a rational basis review. Religious groups were to receive no special treatment, and therefore, any law that imposed the same burdens on religious and other entities was permissible, even if it had the secondary effect of limiting religious exercise of a specific group. When Smith, a Native American, was fired and further denied unemployment benefits due to his use of peyote in a traditional Native American religious ceremony, it was not a violation of his religious liberty because the Oregon drug laws prohibiting the use of peyote were applicable to all regardless of their religious convictions. The Smith decision was seen as a loss for religious liberty across all faith groups, and became immediately unpopular, as it declared the “relative [political] disadvantage” of minority religious groups to be an “unavoidable consequence of democratic gov ernment.”[1] Although the Court limited nearly unanimous congressional efforts to curb the impact of the decision, most states took it upon themselves to write the stricter standards of protection for religious exercise into law.[2] In many ways, the protection of religious freedom in the United States has ultimately been a state-led effort.

Given the reduced state of religious liberty protections under Smith, it is no surprise that the Roberts Court has over the past twenty years been reversing course, limiting the applicability of the precedent in Smith time and again. Their change of heart has coincided with a change in the types of religious liberty cases the Court has been presented with. While these cases once considered the plight of minority religious groups, they are now often brought by Christians who find their beliefs at odds with an increasingly secular society. What constitutes a religious liberty challenge under the current Court is often a Christian organization seeking exemption from a general law on the grounds it interferes with their religious convictions. The Court has seen fit to grant these exemptions, saying that the lack of an exemption would give disfavored treatment to religious Americans and organizations as opposed to secular ones. However, the Free Exercise Clause is not the only way in which the Court has changed its treatment of religion, often to the benefit of Christians. Establishment Clause precedent has fallen by the wayside under this Court, which finds Establishment Clause violations sparingly, even when considering public funding of religious organization’s activities. Once maintaining a strong wall of separation, the Establishment Clause has come to be almost entirely subordinated to the Free Exercise Clause in religious liberty jurisprudence.

Nowhere is the secondary status of the establishment clause more evident than in the Supreme Court’s recent decision in Kennedy v. Bremerton (2022). Kennedy concerned a football coach employed at a public school praying with his players on the field. Since public schools are government entities, similar cases had consistently been decided using the Establishment Clause, as they concerned a government employee seemingly endorsing a particular sect of religion.[3] However, the Court saw fit to dismiss the Establishment Clause concerns present in Kennedy without explanation, instead turning to the Free Exercise Clause as the main religion provision at concern in the case.[4] While there were concerns of the individual liberties of the coach at play, there were also concerns of the liberties of his players. Although it is sometimes seen as disfavorable to religion, the Establishment Clause also serves the purpose of protecting our ability to freely practice whatever religion we wish. In the case of Kennedy, a weighing of the Free Exercise Clause’s protection of the coach against the Establishment Clause’s protection of the players, even if yielding the same outcome, appropriately would have taken into consideration the gravity—indicated by the founders’ determination that it was the only First Amendment right warranting two protections—of religious liberty.

Historically, the Supreme Court has recognized the importance of balancing the two interests to fully protect religious liberty. With their differing approaches to preserving religious liberty, the Establishment and Free Exercise Clauses repeatedly stood in tension with one another, requiring the Court to acknowledge the “play in the joints” between the two, particularly in the area of school funding. When grappling with such questions as “Is funding a religious school violating the Establishment Clause?” and “Is refusing to fund a religious school preventing the free exercise of religion?”, the Court briefly found a middle ground between the two. In 2004 with Locke, the Court decided that while providing generally available scholarships to those pursuing pastoral studies was permissible under the Establishment Clause, it was not required by the Free Exercise Clause. The state of Washington, which had more explicit establishment clause provisions barring funding of religious education, was free to prioritize state legal traditions and constitutional considerations without being found to discriminate against religious Americans by refusing to fund their religious endeavors. However, the area between the two clauses has grown smaller as the Court has progressed in its consideration of government funding of religious institutions. In Trinity Lutheran Church v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), the Court decided that states could not withhold a generally available benefit from a religious institution, regardless of their own constitution’s directives about the funding of religious institutions. Carson v. Makin followed in 2022, requiring states that provide tuition assistance to nonreligious private schools to do likewise for students wishing to attend religious private schools. It is no surprise that the generally available public benefit criteria has brought rise to a case in Oklahoma considering the state funding of a Catholic charter school. The establishment of this school is but the logical extension of the Court’s school funding cases and could potentially be yet another indicator that the Establishment Clause has become defunct.

Despite its importance to the founders and relevance in protecting religious liberty, it is also clear that modern establishment clause jurisprudence has struggled to appropriately serve those interests. Unpopular establishment clause precedents such as Lemon[5] are disfavored, not only because the Court prefers to consider religion cases on the grounds of free exercise, but also because relevant establishment clause jurisprudence is both unclear and unwieldy in its application. The systematic ignoring of Lemon in cases where it would seem to be relevant has made its precedential value unclear, most recently with Justice Gorsuch voicing in Kennedy how it had long been abandoned by the Court. Even more straightforward alternatives to the three-pronged Lemon test have been unable to provide a clear rule to lower courts or the Supreme Court themselves in resolving potential violations of the Establishment Clause. The Court has considered coercion to be the defining factor in a number of cases, which all exhibited the clear difficulty in defining coercion as a legal matter, particularly when it is indirect. So-called coercion was most commonly at issue in cases of school prayer or religious recitations, as prayers performed by all students daily could coerce students into participating through social consequences, even if students declining to engage in prayer were not facing any legal, economic, or physical jeopardy. Each case involving a potential coercion standard has been mired in deep divisions between the justices regarding what exactly constitutes coercion, as a broader conception of the term involves psychological analyses that judges are under-resourced and untrained to provide.

Similar issues arose with the endorsement test favored by the late Justice O’Connor. Although she was often unsuccessful in introducing the concept into majority opinions, O’Connor continually wrote that the defining factor in finding an establishment clause violation should be whether a reasonable person would perceive a state action as an endorsement of a specific religious faith. This approach, despite its seeming simplicity, also requires a degree of psychological evaluation in understanding public perceptions of something rather than a clear legal analysis. The variety of Establishment Clause standards that the Court has used without any consistency over several decades indicates a need for an evolving jurisprudence concerning religious establishment, one that can provide clarity to governing institutions and lower courts alike. However, the Court has proven itself either uninterested or unable to create such a standard, instead choosing to circumvent the issue by habitually deciding religious liberty cases on the basis of free exercise. Even setting aside questions around establishment, this practice has also muddied free exercise jurisprudence. By applying the Free Exercise Clause in cases where the Establishment Clause arguably has more authority, it is more difficult for the Court to set forth clear standards, as they must work for a much more diverse set of circumstances than would otherwise be necessary.

While the Court’s disregard for the Establishment Clause in both Kennedy and Carson may initially seem a victory for religious liberty, particularly for conservative Christians, it remains in question whether it is in fact a great victory for the project of ensuring legal religious liberty as a whole. One way of expressing the tensions inherent in religious liberty protections is as the balance between institutional and individual liberties. When the Court focuses its attention on the religious liberty of institutions, such as a school, it can have detrimental effects on the religious liberty of individuals. Despite often being understood as a roadblock to allowing people to express their religion in public life, the Establishment Clause is another element of the protection of a religious person’s liberty. The Free Exercise Clause explicitly allows one to practice their own religion, and in tandem Establishment Clause protections prevent religious people from having a dominant religion forced upon them by their government. Take the example of the Oklahoma Catholic charter school—without a robust Establishment Clause, what protects the liberties of Protestant students whose best public schooling option is this school? In an instance like this, where religious institutions could potentially be the only provider of government-guaranteed benefits, the Free Exercise Clause alone may be insufficient to preserve an individualistic notion of religious freedom.

However, individual freedom is not the only conception of freedom our Constitution guarantees. It is clear from other elements of the First Amendment that our liberties are not limited to solitary activities or beliefs, but are instead extended to groups with which we choose to identify. The freedom of association, although not explicitly stated in the First Amendment, is a key implication of not only clear group activities such as the freedom of assembly, but also of religious liberty. Religion is rarely a solitary engagement, as religious institutions and groups play a key role in a person’s expression and development of their beliefs. Therefore a legal definition of religious exercise as something only an individual participates in is insufficient to acknowledge the fullness of institutional religious community and the role they play in faith life. Religious liberty can then be understood as “depend[ent] on an infrastructure of religious freedom” part of which is “a web of independent, thriving, and distinctive institutions that are self-governing in their appropriate spheres.”[6] Although the intricacies of an institutional approach to religious liberty are beyond the scope of this paper, it should not go unmentioned that a religious exercise that is solely individual is a highly diminished practice that loses much of the meaning that religion provides in the first place, as an inherently communal idea.

Christians must consider what their victories in front of the Supreme Court mean beyond the legal. Is it possible that the process of acquiring political protection can do more harm than good to the Church? There are certainly benefits to legal protections—increased support for religious programs and schooling, bolstered confidence in the ability to practice religion publicly—but even the benefits themselves come with caveats. With financial support for religious schools come conditions. A weakened Establishment Clause would likely still require enough adjustments to a model of religious schooling that they would detract from the ability of the institution to prioritize its religious mission and provide a true Christian education. It is an open question whether these wins are worth the costs incurred. Even if political protection is helpful, people of faith have certainly thrived in much more difficult political environments.

The drawbacks brought about on the path towards judicial victories are significant as well. The justices that have been more jurisprudentially favorable toward expansive religious liberty are largely conservative and therefore appointees of the Republican party. The formation of a more conservative Court necessitated a political alliance with the Republican Party, which although certainly bearing fruit, has also negatively impacted broader perceptions of the Church, regardless of the accuracy of such a political conception of a religious institution. In an identity-driven political world, political alignment has come to supersede any other facet of identity for many people. As a result, people have, on principle, become suspicious, if not outright dismissive, of organizations that they associate with the opposing political tribe. The political relationship between conservative Christians and the Republican party has for many consolidated the two groups into one, resulting in Christian ideas and affiliation with the Church becoming unpalatable to people who may have been open were it not for their own political priors. The consequences of the intertwining of Christian and Republican identity reach beyond the derogation of the perception of the Church. Although conservative Christians have been able to mold some of the goals of the Republican Party to align with protecting the exercise of religious faith, such modifying power has gone both ways, as the relationship also allows political considerations and positions to begin to shape people of faith.

This is not to say that Christians are obligated to remain outside of politics, or that there is no path to advocating for policies that align with a Christian view of the world. However, wedding oneself to one party limits the openness that is helpful when one has been charged to go out and make disciples. Church membership and attendance in the United States have been declining for decades, with a precipitous drop among younger Americans suggesting that the decline will not stop any time soon. The decreasing role that religious institutions play in the lives of many Americans is partially why the Church initially sought refuge in the courts, but that decrease could very well be exacerbated should Christians continue to pursue political solutions to a problem that demands compassion and charity. For all that it has done to support Christians, no court can do the hard work of winning hearts and minds for Christ.

Leah Renkema ’24 studies political science, with minors in mathematics and accounting. She is from Grandville, Michigan, and is also a Hope Distnguished Artist Awardee in clarinet.


[1] Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 890 (1990).

[2] Following the handing down of the Smith decision, Congress passed the Religious Freedom Restoration Act almost unanimously, with a 97-3 vote in the Senate. The Religious Freedom Restoration Act (RFRA) attempted to protect religious liberty across the country by legislating what was essentially an overruling of Smith – stating that a law of general applicability was insufficient reason to burden a person’s religious practice, and that the only valid government infringement into religious liberty must meet the strict scrutiny standards that policies pursue a compelling government interest by the least restrictive means possible. The Court quickly declared this law to be an overreach of Congress’ power, removing its applicability to states and cities in the 1997 case City of Boerne v. Flores. RFRA continues to apply to federal government entities, but its application in states and cities depends on whether state legislatures have passed their own version of RFRA or amended their constitutions to include similar protections, which a majority of states have pursued.

[3] See Engel v. Vitale (1962), Abington v. Schempp (1963), Lee v. Weisman, (1992), Santa Fe v. Doe (2000).

[4] Although the religious liberty elements of the Court’s opinion were based in the Free Exercise Clause, the majority of the Court’s reasoning in Kennedy v. Bremerton was based on free speech precedent, as the Court elected to consider Kennedy’s prayers as speech rather than as a religious practice. Taking a case concerning prayer as a speech case was the latest in a line of cases concerning religious speech or expression, most of which the Court has decided using free speech precedent rather than either of the religion clauses.

[5] Considering state funding of secular functions of private religious schools, Lemon v. Kurtzman (1971) created and applied a three-prong test to determine whether a government activity involved with religion was in violation of the Establishment Clause. Under Lemon, a court was required to determine that a law had a valid secular purpose, that its primary purpose was not to advance or inhibit religion, and that the government was not excessively entangled with the affairs of the religious entity in their actions.

[6] Garnett, Richard. “Mary Ann Glendon and the Structure of Religious Freedom.” Public Discourse, The Witherspoon Institute, 23 July 2013, 2013/07/10506/.

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