Last week’s post began a series on the First Amendment, and I’m excited to continue this week by sharing more about it, focusing on religious liberty. When I first started writing these constitutional blogs years ago, I wanted to explore the First Amendment and the challenges society faces with both freedom of speech and religion. Throughout the 20thcentury, people strongly supported protecting these rights, especially through popular culture. However, as we moved into the late 20th and early 21st centuries, we’ve seen attacks on religious freedom from both the left and the right. It’s quite surprising and concerning because it points to a breakdown in our national political culture. That’s why I believe this series of blogs matters, and I wish I could do an even better job explaining how vital these issues are to all of us.
Religious Freedom and the First Amendment
The First Amendment begins by protecting religious rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….”[1] On its face, the First Amendment provides two mechanisms by which religious freedom is to be protected:
- Congress cannot establish a religion
- Congress cannot create laws that would prohibit the free exercise of religion.
Today, because of the 14th Amendment, states are similarly prohibited from establishing a religion or prohibiting the free exercise of religion.[2] Taken together, these two provisions prevent government from prohibiting a particular religious view or establishing one as normative within its jurisdiction.
In recent years, the Court has made many decisions on the Establishment Clause in various areas, including religious education. Applying the amendment today is difficult because of the vast social differences between America today and America in 1789. In 1789, the United States was mostly Protestant Christian. There were, however, Catholic minorities and, in Maryland, a Catholic majority. Finally, there was a Jewish minority that no less a person than George Washington indicated was protected by the First Amendment, and that their rights should be protected by the government.[3]
With the emergence of the United States as a world power and the center of the global economy, citizens from nearly every nation in the world have moved to the United States, resulting in the presence of various religious minorities within the United States. In addition, the emergence of a form of secularism that takes the form of a religious devotion in many people has created yet another group that claims a religious right to practice the religion of second or humanism. Finally, there are even groups that worship Satan and other entities that claim the right to their religious freedom. It should be obvious that it’s unlikely the founders even thought about these possibilities, and if they had, it’s doubtful they would’ve reached the same conclusions that modern people are likely to reach about the extent of the First Amendment.
Nevertheless, it’s helpful to consider the religious context and the likely intentions of the founders in adopting the First Amendment. In 1789, a majority of the population could trace their roots to England. England had an established church. Originally, that church was Roman Catholic, and later Anglican, in the form of the Church of England. Various groups that made up the original inhabitants of the United States left England because they were persecuted by the government and the established church. This included Baptists, Puritans, and others. Virginia was primarily an Episcopalian state, and for a time it seemed Episcopalians would be Virginia’s established religion.
Baptists, Presbyterians, Moravians, and others viewed this with a degree of fear. They had not left their homes for the wilderness and fought for their freedom only to end up in the same situation they had been in England. With this brief summary of the relevant history in mind, one can see that the Establishment Clause was designed to prevent the national government, and by incorporation through the 14th Amendment, any state government, from establishing a religious sect to which all citizens were required to belong. It is worth remembering that in Europe, people who did not belong to the established religion were discriminated against in various ways. The amendment was meant to prevent that from happening.
Similarly, various religious groups who came to the United States came partly because they were restricted from exercising their religious beliefs in their country of origin. In the course of English history, for example, Puritans, Anglicans, Pilgrims, and others had been prohibited from practicing their religion/ THis was true not only in Great Britain, but in most European nations. Put simply, the Free Exercise Clause was designed to prevent government action that would prohibit an individual from exercising their right to worship. This is the essence of the Free Exercise Clause.
The question of which kinds of state action can trigger a violation of the Establishment Clause has been a difficult one for the Court to answer. The important case of Lemon v. Kurtzman involved Pennsylvania and Rhode Island (two states with substantial Catholic populations) and programs that used taxpayer money to supplement teachers’ salaries and buy materials for teachers instructing secular subjects in private, mostly Catholic schools. The Court decided that the funding was unconstitutional because it caused excessive government entanglement with religion. In its ruling, the Court enunciated what became known as the Lemon Test. For a state program to pass muster under Lemon:
- The statute must have a clear secular (non-religious) purpose.
- The main effect of the legislation must neither advance nor inhibit religion.
- The legislation must not foster excessive government entanglement with religion.
As is often the case, after issuing its decision, the court faced repeated legislative attempts to finance various programs in ways that met the Lemon test. The limit test has obvious problems: any legislation with a financial effect on a group advances that group in some way, and any failure to finance it inhibits the group. Second, whether government entanglement is excessive is purely subjective and has proven impossible to apply neutrally. Ultimately, the Court abandoned the Lemon Test.[4]
The COVID-19 Cases
The Free Exercise Clause can embroil the Court in political disputes involving both religious groups and society at large. A recent example involved various states’ responses to COVID-19. The problem in these Supreme Court cases is that, while the Constitution ceded certain limited powers to the federal government, including foreign affairs and interstate commerce, all other powers not expressly given to the federal government remained with the states, including the “police power” to protect the health, safety, and morals of the people. That is why the states still have primary jurisdiction over public health. On the other hand, the First Amendment prohibits the government from limiting freedom of religion and assembly.
In Tandon v. Newsome, the Court considered whether California could enforce COVID-19 restrictions on private gatherings as applied to applicants’ at-home religious exercise.[5] The state’s restrictions on private gatherings contained “myriad exceptions and accommodations” for secular activities comparable to religious ones, triggering strict scrutiny for Free Exercise Clause violations. The Court clearly sensed that more was at stake than public health. California was using COVID-19 as a pretext to regulate religious observance.
Tandon v. Newsome was one of several cases that reached the Court on vaccinations, mask mandates, and regulating public gatherings, including religious services. The justices’ opinions naturally focused on how much deference to give to both state rules and federal mandates aimed at safeguarding public health. The decisions explored how much discretion the government should have in responding to the COVID-19 pandemic, especially given the freedoms the Constitution guarantees.
The decisions also examined the appropriate response to situations where it could be argued that religious institutions were not being treated with the same fairness afforded to other groups. Across the opinions, we see growing concern about how state restrictions might be affecting personal freedoms.[6] Personally, I feel the Court ultimately believed that states like California and New York went too far in restricting religious liberty, especially given the public debate over whether mass immunization, mask mandates, and the closure of public facilities were in fact successful in controlling the disease.
It is concerning that the Court’s COVID-19 decisions were decided almost entirely along a divide between the more liberal members, who backed state regulation in the name of religious freedom, and the more conservative members, who were more sensitive to individual rights. These decisions illustrate the growing division between those who believe the Constitution has an original meaning that can be determined from its text and by examining sources, and those members of the Court who believe the Court can interpret the Constitution as it sees fit under Living Constitution theory. The growth of the power and influence of the Federal government, and the concomitant growth of the willingness of secular members of the Court to allow infringement on religious liberties, should be a matter of concern across the religious divide in America.
Conclusion
This week ends with COVID-19 cases that highlight two sad truths about our current situation. First, tension always exists between different freedoms and societal needs. During COVID-19, for instance, people debated religious freedom versus government health mandates. This shows why wise leadership matters—some mandates have proven ineffective or even unwise. We need both elected and appointed leaders who love people, have broad experience, and use common sense. Second, religious communities must remember that religious freedom isn’t absolute and must sometimes give way to other urgent public demands. Whether we agree with how things were handled during the COVID crisis or not, the reality is that both the national government and the states had a responsibility to act, whether or not their actions were wise. Third, unfortunately, the COVID cases demonstrate the deep division in our politics. During the various COVID-19 proceedings, the Supreme Court’s composition changed, and so did its legal rulings in this area. Some people applauded that change; others were horrified.
A nation that does not seek to solve problems wisely and with compassion for all sides of pubic disputes, overreacts, and demonizes those who disagree is unlikely to survive over the long run. The First Amendment is one area where the growth of a radical secular component in our society, and a misunderstanding of what the “Separation of Church and State” actually entails, has caused, and continues to cause, issues within our political community. Next week, I intend to examine three theories the Supreme Court has used to interpret the Establishment Clause, and how it has been misapplied and misunderstood.
Copyright 2026, G. Christopher Scruggs, All Rights Reserved
[1] US Constitution, Amendment 1.
[2] Cantwell v Connecticut, 310 U.S. 296 (1940); Everson v. Board of Education, 330 U.S. 1 (1947).
[3] Sarah Skeire, “George Washington’s Letter to the Jews” (September 20, 2016), https://fee.org/articles/george-washingtons-letter-to-the-jews/?gad_source=1&gad_campaignid=21607921915&gbraid=0AAAAADkIVmffqZzOoTPuNW13gUUsJ_YUN&gclid=CjwKCAjwoaLWBhAWEiwAnyitu4Tq6tkf9t6Yp6bR0UqW3rqN1OzHzGNPD2lX2wfYlre9tAiBztduixoCnFcQAvD_BwE, downloaded October 9, 2026).
4 Kennedy v Bremerton School District, 597 U.S. 507 (2022) held that the free exercise and free speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression. In my view, this case is a good example of unnecessarily overturning a precedent. A dissenting opinion argued that the action had the implicit effect of establishing a religion since it was a coach praying. Nevertheless, it would’ have been possible to decide the decision on the narrow ground that the First Amendment right involved was absolute, notwithstanding any risk of establishing a religion, which was slight, at best.
[5] Tandon v. Newsome, 593 U.S. 61, 141 S. Ct. 1294 (2021). It should be noted that the case involved the
[6] For an exhaustive review of the cases in view of the entire history through similar and distinguishable emergencies, see Timothy C. MacDonnell, “The Supreme Court Du9ng Covid19: Keeping its Head When Those About It Were Losing Theirs” 79 South Dakota Law Review (2025) found at Washington and Lee University School of Law Scholarly Commons https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1884&context=wlufac, downloaded October 6, 2026.









