The (Past, Present, and Future) Law of Religious Liberty


Editor’s Note: This is part 4 in our Lyceum Disputation series considering Baptists, Religious Liberty, and the State. Stay tuned for further installments. As with all our work, the London Lyceum publishes a range of viewpoints to encourage thinking.


The legal history of religious liberty in the United States is complicated. The pilgrims came to America in the early 1600s in search of religious freedom, but certainly not with any commitment to religious liberty for all. In colonial America, different strains of Christianity took hold and were in some instances established by government. Even after the United States was founded, most states continued to establish religion generally, Christianity in particular, and even certain denominations in preference to others. For the first century and a half of the United States, it was at the federal level only that the US Constitution prohibited the establishment of religion and guaranteed its free exercise.

My purpose here is to briefly sketch the legal history of religious liberty in the United States. I do not intend to critique the approaches to religious liberty taken by the various states in the early years of America, nor do I intend to challenge the US Supreme Court’s shifting interpretations of the religious liberty guaranteed by the US Constitution. My goal here is more modest: to explain that legal history. Readers can make their own judgments about propriety.

The Founding

When people think of religious liberty in the United States, they frequently think in terms of the US Constitution’s First Amendment. But the US Constitution’s original provision protecting freedom of conscience is found in article VI, drafted in 1787, which prohibits religious tests for holding office in the federal government.[1] As for the First Amendment, ratified four years later, it prohibited only “Congress” from passing “law[s]” that either establish religion or prohibit its free exercise. The US Constitution, as originally adopted and quickly amended, restrained only the federal government with regard to matters of religion.

For more than one hundred and fifty years after the nation’s founding, the states took a variety of approaches to religious freedom and establishment. Of the original thirteen states, Virginia was the most protective of religious liberty. George Mason, an Episcopalian, drafted the Virginia declaration of rights, which provided that “all men are equally entitled to the free exercise of religion.”[2] Rhode Island, home to Baptist exile Roger Williams, similarly guaranteed that no one would be “molested, disquieted, punished, or called into question, for any differences in opinion in matters of religion” so long as they “behav[e] themselves peaceably and quietly” and didn’t “us[e] this liberty to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”[3]

At the other end of the religious liberty spectrum, the Massachusetts constitution of 1780, written by the Unitarian John Adams, declared that it was “the duty of all men in society . . . to worship the Supreme Being, the great Creator and Preserver of the universe.” Thus, the Massachusetts constitution authorized the legislature to require towns “to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers.” As for elected office, the Massachusetts constitution provided that no one could serve as the state’s governor or lieutenant governor unless “he shall declare himself to be of the christian religion.”[4]

In Connecticut, Congregationalism was the established religion until 1818,[5] when the state adopted a constitution providing that “the exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in this State” and “no preference shall be given by law to any christian sect or mode of worship.” These guarantees were limited, however, by explicit carve-outs for “acts of licentiousness” and “practices inconsistent with the peace and safety of the State.”[6] And while the constitution gave “each and every society or denomination of christians . . . the same and equal rights, powers and privileges,”[7] Jews were not afforded the freedom to “unite and form religious societies” until 1843, when the state’s legislature passed a law providing for such.[8] The preference for Christianity would remain in the state’s constitution until 1965.[9]

Between the approach taken by Virginia and Rhode Island on the one hand and Massachusetts and Connecticut on the other were states like New Jersey and Pennsylvania, which neither established a state religion nor guaranteed religious liberty to all. New Jersey’s constitution of 1776 made clear that the state was a Protestant one. Establishment was forbidden and freedom to worship (or not worship) “Almighty God” was guaranteed, but civil rights were only ensured for Protestants and public office was limited to those “professing a Belief in the Faith of any Protestant Sect.”[10] It was not until the New Jersey constitution was amended in 1844 that religious liberty was broadly afforded and Roman Catholics (and those of other faiths) were permitted to hold public office.[11]

Likewise, Pennsylvania, in its constitution of 1776, provided that “all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding” and thus could not be “compelled to attend any religious worship.”[12] However, even in Pennsylvania, civil rights were guaranteed only to those who “acknowledge[d] the being of a God,” and public office was limited to those who affirmed they “believe[d] in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked,” and further “acknowledge[d] the Scriptures of the Old and New Testaments to be given by Divine inspiration.”[13]

A year later, New York adopted its constitution, which prohibited ministers from holding public office on the theory that they “ought not to be diverted from the great duties of their function.”[14] But the state’s constitution otherwise guaranteed “the free exercise and enjoyment of religious profession and worship, without discrimination or preference.”[15]

Notwithstanding the seemingly sweeping guarantees of religious liberty in Pennsylvania and New York, both states allowed for the criminal prosecution of blasphemy. In 1811, the highest court in New York affirmed a blasphemy conviction, reasoning that the state’s guarantee of religious freedom did not forbid the criminalizing “of those offences against religion and morality which . . . strike at the root of moral obligation, and weaken the security of the social ties.”[16]

In 1824, the Pennsylvania Supreme Court also considered whether a crime of blasphemy was consistent with the state’s constitutional guarantee of religious liberty. Though the court reversed the criminal conviction at issue in that case due to a technical defect in the indictment, the court expounded at length on the constitutionality of criminalizing blasphemy. As that court explained, blasphemy, “when spoken in a Christian land, and to a Christian audience,” is indictable “as directly tending to disturb the public peace.”[17]

A Delaware court affirmed a blasphemy conviction in 1837, noting that “[i]t appears to have been long perfectly settled by the common law, that blasphemy against the Deity in general, or a malicious and wanton attack against the Christian religion individually, for the purpose of exposing its doctrines to contempt and ridicule, is indictable and punishable as a temporal offence.” The defendant argued that the crime of blasphemy was inconsistent with the state’s constitution, which provided that “no authority can . . . in any case interfere with, or in any manner control the right of conscience in the free exercise of religion.” The court rejected this argument, concluding that “blasphemy can be punished under our state constitution.” The defendant was fined ten dollars and sentenced to ten days in solitary confinement.[18]

Massachusetts too criminalized blasphemy. Indeed, the last person known to have been jailed for blasphemy in the United States was Abner Kneeland of Massachusetts in 1838. Kneeland was indicted for blasphemy based on his criticism of Universalist religious beliefs about God. The Supreme Judicial Court of Massachusetts rejected Kneeland’s argument that his conviction for blasphemy was contrary to the state’s constitutional guarantee of religious freedom, explaining that religious liberty does not entitle one to engage in “acts which have a tendency to disturb the public peace.”[19]

Writing in 1833 about the constitutional guarantee of religious liberty, US Supreme Court justice Joseph Story observed that “every American colony, from its foundation down to the revolution, with the exception of Rhode Island (if, indeed, the state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty.”[20] The US Constitution, however, “exclude[d] from the national government all power to act upon the subject,” leaving “the whole power over the subject of religion . . . exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.”[21]

Consistent with Justice Story’s observations, the US Supreme Court ruled unanimously in 1844 that the First Amendment “makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws.”[22] And even as to the federal government, it was constrained by the First Amendment from regulating “mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”[23] As the Court would put it a few years later, “it was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.”[24]

The Second Founding

As you most likely know, what I have described to this point is not the state of religious liberty law today. Freedom of religion is now understood to limit both federal and state governments and to protect both belief and conduct. So what changed? How did we go from the view expressed by Justice Story that the promotion of religion was a proper role for state governments to the view widely held today that neither the federal nor the state governments may promote religion nor infringe its exercise?

The answer to these questions is found, at least in part, in the Civil War. That war, and the Reconstruction that followed, is often referred to as America’s second founding because it fundamentally altered the relationship between the federal and state governments. We tend to think of the implications of the Civil War as focused on issues of slavery and race. And that is certainly true. But the Reconstruction Amendments to the US Constitution – the Fourteenth, in particular – worked a far more sweeping alteration of state and federal relations.

The Fourteenth Amendment, ratified in 1868, provides that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws.”[25] None of these provisions make express reference to religion. But neither do they make express reference to race. Nevertheless, these provisions have been interpreted by the US Supreme Court to have worked a sea change in the rights of state citizens regarding laws that touch on issues of both race and religion.

The transformation brought about by these provisions was not instantaneous, either on issues of race or religion. In 1896, the Supreme Court notoriously ruled that state laws drawing distinctions based on race were constitutional notwithstanding the equal protection guarantee of the Fourteenth Amendment.[26]  It would be nearly fifty years before the court corrected this grievous “separate but equal” error.[27]

The extension of the religious liberty to state laws similarly developed in fits and starts after the adoption of the Fourteenth Amendment. In what are known as the Slaughterhouse Cases in 1872, a 5–4 majority of the US Supreme Court interpreted the Fourteenth Amendment’s privileges and immunities clause narrowly to include only things like free access to seaports, the protection of the federal government on the high seas, the right to petition the government for redress of grievances, access to habeas corpus, and the right to become a citizen of any state. But the Fourteenth Amendment’s protection of privileges and immunities was not, in the court’s view, a broad grant of civil rights.[28] A dissenting justice, by contrast, argued that the privileges and immunities were in fact quite broad in scope, including the rights to free speech, free press, and religious liberty.[29]

Consistent with this narrow reading of the privileges and immunities clause, the Supreme Court in 1892 recited, seemingly with approval, an array of state laws that “recognize[d] a profound reverence for religion, and an assumption that its influence in all human affairs is essential to the wellbeing of the community.” For example, the court noted that the Maryland constitution of 1867 required public officials to affirm “belief in the existence of God,” the Massachusetts constitution of 1780 allowed for taxation to support churches, and Mississippi’s constitution of 1832 barred from public office anyone who “denies the being of a God, or a future state of rewards and punishments.” All this led the court to declare that “this is a religious people” and, more particularly, “this is a Christian nation.”[30] As late as 1921, Maine’s Supreme Court affirmed a blasphemy conviction, ruling that the First Amendment’s guarantee of religious freedom had no application to state laws.[31]

In a similar vein, numerous states had anti-profanity laws. For example, in 1912, the South Carolina supreme court interpreted that state’s crime of profanity as applying to language that is “irreverent toward God or holy things.”[32] Michigan passed a law in 1932 making it a crime to “curse or damn or swear by the name of God,”[33] expanding on a law dating back at least to 1846 that made it a crime to disrupt religious worship by means of “profane discourse.”[34] At least since 1896, Rhode Island has had a law punishing “profane swearing and cursing” with a fine of up to five dollars.[35]

The Modern Era of Religious Liberty

But in the 1920s, the US Supreme Court’s view on the federal government’s role in protecting civil rights began to evolve, and the modern era of First Amendment law was ushered in by the court’s decision in Gitlow v. New York in 1925. In that case, the court held that the First Amendment’s free speech guarantee applied not only to Congress but also to state laws that sought to restrict speech. But rather than rule that speech is among the privileges and immunities protected by the Fourteenth Amendment, the court instead concluded that speech is among the “liberties” protected by that amendment’s due process clause.[36]

Fifteen years later, in Cantwell v. Connecticut, the Supreme Court similarly concluded that the due process clause of the “Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact” laws “respecting an establishment of religion or prohibiting the free exercise thereof.” But unlike its ruling decades earlier, the court concluded that the religious liberty protected by the Fourteenth Amendment was a “freedom to believe and a freedom to act.” The Cantwell court was careful to note, however, that while the freedom to believe “is absolute” the freedom to act “cannot be.” “Conduct,” even if religiously motivated, “remains subject to regulation for the protection of society,” but that “power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.”[37] Thus, for example, states were free to regulate profanity notwithstanding the First Amendment. As the Supreme Court later explained, “[w]e cannot conceive that cursing a public officer is the exercise of religion in any sense of the word.”[38]

Though the Cantwell court referred to the First Amendment’s ban on religious establishments applying to state legislatures as well as Congress, that case did not involve a law purporting to establish religion. It was not until 1947, in Everson v. Board of Education, that the Supreme Court concluded that states are precluded by the Fourteenth Amendment from establishing religion. Invoking Thomas Jefferson’s letter to the Danbury Baptist Association in 1802, the court explained that the Constitution’s prohibition against religious establishments required “a wall of separation between church and State.” The court concluded, however, that it was not an establishment of religion for New Jersey to reimburse parents for the cost of transportation of their children to either public or Catholic schools.[39] But a year later, the Supreme Court held that it was an establishment of religion for a state to allow clerics to provide religious instruction in public schools during the regular school day. In the court’s view, this was “beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.”[40]

What followed was a string of religious establishment rulings by the Supreme Court that prohibited opening the school day with prayer[41] or Bible reading,[42] moments of silence for prayer or meditation,[43] posting of the Ten Commandments,[44] or teaching creationism[45] in public school classrooms, or precluding the teaching of evolution.[46] Conversely, the court rejected establishment clause challenges to prayer at the beginning of legislative sessions,[47] displays of the Ten Commandments on the grounds of a state’s capital.[48]

Blue laws, requiring that businesses close on Sundays, quickly came under fire from those raising both establishment clause and free exercise challenges. On the one hand, the court rejected the argument of employees of a large discount department store in Maryland that a law criminalizing commercial activity on Sunday worked an establishment of religion. The court acknowledged that laws of this sort originally “were motivated by religious forces,” but concluded that the “present purpose and effect of most of them is to provide a day of rest for all citizens,” a purpose the court concluded was a secular one. That the day chosen for rest happened to be “a day of particular significance for the dominant Christian sects” did not invalidate the state’s legitimate “secular goals.”[49] At the same time, the Supreme Court rejected free exercise challenges to Blue laws by observant Jews who recognized a different sabbath day of rest.[50]

As noted at the outset of this essay, it was common in early America for states to require some form of religious belief to hold public office. In 1961, the Supreme Court took up the question whether laws of that sort could stand in the face of the Fourteenth Amendment and its application of the establishment and free exercise clauses of the First Amendment to the states. At issue was the Maryland constitution, which provided there was to be no religious test for state office “other than a declaration of belief in the existence of God.” Without specifying whether such a provision was an establishment of religion or invaded its free exercise, the court concluded that the oath requirement violated the Fourteenth Amendment because states cannot “force a person to profess a belief or disbelief in any religion.”[51]

Legally compelled religious belief presented an easy case, perhaps. But what of laws that prohibited conduct required by religious belief? In 1963, the Supreme Court was faced with that question in Sherbert v. Verner. There, a Seventh-Day Adventist woman was denied state unemployment benefits when she lost her job and was unable to secure new employment due to her refusal to work on Saturday. She challenged the state law at issue, arguing that, while it had not targeted her religious belief, it nonetheless had an incidental effect that infringed her right to freely exercise her religion. The court agreed. With regard to religious belief, the court explained, “[t]he door of the Free Exercise Clause stands tightly closed against any governmental regulation.” But even as to “acts prompted by religious belief or principles,” a state law incidentally burdening religious exercise is permissible only if “justified by a compelling state interest in the regulation of a subject within the States’ constitutional power to regulate” and if “no alternative forms of regulation” could address that compelling state interest. The state law at issue failed this test.[52]

The test announced in Sherbert—known as the “compelling interest test”—remained the law governing free exercise claims for nearly three decades until the Supreme Court’s decision in 1990 in Employment Division v. Smith. In that case, a narrowly-divided court overruled the compelling interest test in an opinion authored by Justice Antonin Scalia. In its place, the court announced that free exercise claims must be evaluated by asking whether the law at issue, even if it burdens religious exercise, is one that is neutral and of general applicability. If so, then no individual is entitled to exemption from that law merely because they conduct the law prohibits is religiously motivated. To hold otherwise, the court ruled, would allow each person to be a law unto himself or herself.[53]

If, however, a state law is not neutral—meaning that it is intended to target religious practice—or of general applicability—meaning that the law had various carve-outs, exceptions, or limitations—then the state could not apply the law to prohibit religiously-motivated conduct absent a compelling interest. For example, the court later held that a city ordinance that targeted animal sacrifice for prohibition but allowed the killing of animals for other reasons was not a neutral law of general applicability and, because it could not satisfy the compelling interest test, was an unconstitutional infringement of the right to religious exercise.[54]

Across the ideological spectrum, the public reaction to the Smith decision was quite hostile. Congress responded by passing the Religious Freedom Restoration Act (“RFRA”) in 1993. The bill was introduced by then-US Representative Charles Schumer and then-US Senator Ted Kennedy. The bill passed a unanimous vote in the US House of Representatives and a nearly unanimous vote in the US Senate. RFRA purported to re-establish the compelling interest test of Sherbert as the test that would govern any religious free exercise claims.[55] The Supreme Court later ruled, however, that Congress lacked any authority to impose such a test to claims that state laws violated religious liberty.[56] RFRA does, however, continue to apply to actions of the federal government.

The Future of Religious Liberty

In recent years, a variety of parties challenging state laws and regulations on the ground that they infringe the free exercise of religion have asked the US Supreme Court to overrule its decision in Smith. In 2020, the court agreed to consider one such request, but ultimately found it unnecessary to reach the question because the court unanimously concluded that, even under the Smith test, the law at issue was an unconstitutional violation of the party’s free exercise rights. However, three justices—Thomas, Alito, and Gorsuch—wrote separately to express their view that Smith’s test for evaluating free exercise claims should be discarded.[57] It remains to be seen whether another opportunity to overrule Smith will be taken up by the court.

In another context, Justice Clarence Thomas has suggested that the court should revisit its narrow interpretation of privileges and immunities in the Slaughterhouse Cases. Rather than continuing to read into the Fourteenth Amendment’s due process clause the liberties found in the Bill of Rights, Justice Thomas believes that the court should instead identify the privileges and immunities protected by that amendment. In his view, the phrase “privileges and immunities” was synonymous with “rights” at the time the Fourteenth Amendment was ratified, and at least included the “‘constitutionally enumerated’ rights.”[58] It remains to be seen whether this approach will gain the support of other justices and, if so, whether a prohibition against establishment of religion would be deemed such a privilege or immunity. Justice Thomas does not believe it should be.[59]

In the meantime, the Supreme Court continues to consider religious liberty cases on a regular basis. In 2020, the court was presented with a string of cases raising free exercise of religion challenges to state and local laws precluding churches from meeting in person during the COVID-19 pandemic.[60] Last year, the court overturned a Maine law that precluded families from participating in a student-aid program if they sent their children to religious schools.[61] And just this year, the court agreed to take up a case presenting the question of when a federal law protecting employees from religious discrimination requires employers to accommodate an employee’s religious practices.[62]

What the future holds for religious liberty litigation, God only knows. 


[1] During the ratification debates, some objected to this provision on the ground that it would allow Catholics, Muslims, pagans, or atheists to hold federal office. John Witte, Jr., Joel A. Nichols, and Richard W. Garnett, Religion and the American Constitutional Experiment, 5th ed. (New York: Oxford University Press, 2022), 101.

[2] Virginia Declaration of Rights (1776), available at: https://www.archives.gov/.

[3] Rhode Island Royal Charter (1663), available at: https://www.sos.ri.gov/.

[4] Constitution of Massachusetts (1780), available at: http://www.nhinet.org/.

[5] Wesley W. Horton, The Connecticut State Constitution: A Reference Guide (Westport, CT: Greenwood, 1993), 13. In Connecticut’s Fundamental Orders (1639), the governor of the colony (and later, state) was required to “be always a member of some approved Congregation.” According to Connecticut’s Fundamental Agreement (1639), “church members only shall be free burgesses.” It was a capital crime in Connecticut to “worship any other God but the Lord God” or to blaspheme the name of God the father, Sonne or holy Ghost, with direct, express, presumptuous or highhanded blasphemy.”  The Code of 1650, Being a Compilation of the Earliest Laws and Orders of the General Court of Connecticut (Hartford, CT: Silas Andrus, 1820), 28.

[6] Constitution of Connecticut (1818), art. I, §§ 3, 4, available at: https://www.cga.ct.gov/.

[7] Constitution of Connecticut (1818), art. VII, § 1.

[8] Public Acts Passed by the General Assembly of the State of Connecticut in the Years 1839, 1840, 1841, 1843, and 1843 (Hartford, CT: John L. Boswell, 1845), 208.

[9] Constitution of the State of Connecticut (1965), art. I, § 3, available at: https://www.cga.ct.gov/.

[10] Constitution of New Jersey (1776), art. XVIII, art. XIX, available at: https://avalon.law.yale.edu/.

[11] Constitution of New Jersey (1844), art. I, § 4, available at: https://www.state.nj.us/.

[12] Constitution of Pennsylvania (1776), Declaration of Rights, art. II, available at: https://avalon.law.yale.edu/.

[13] Constitution of Pennsylvania (1776), Plan or Frame of Government, § 10, available at: https://avalon.law.yale.edu/.

[14] Constitution of New York (1777), art. XXXIX, available at: http://www.nhinet.org/.

[15] Constitution of New York (1777), art. XXXVIII.

[16] People v. Ruggles, 8 Johns. 290, 296 (N.Y. 1811).

[17] Updegraph v. Commonwealth, 11 Serg. & Rawle 394, 399 (Pa. 1824); see also Vidal v. Girard’s Executors, 43 U.S. (2 How.) 127, 198 (1844) (“[T]he Christian religion is part of the common law of Pennsylvania.”).

[18] State v. Chandler, 2 Del. (2 Harr.) 553, 555, 566, 574, 579 (Ct. Gen. Sess. 1837).

[19] Commonwealth v. Kneeland, 27 Mass. 206, 221 (1838).

[20] Joseph Story, Commentaries on the Constitution of the United States, vol. 3 (Boston: Hilliard, Gray & Co, 1833), § 1867.

[21] Joseph Story, Commentaries on the Constitution of the United States, vol. 3 (Boston: Hilliard, Gray & Co, 1833), § 1873.

[22] Permoli v. First Municipality of New Orleans, 44 U.S. (3 How.) 589, 609 (1844).

[23] Reynolds v. United States, 98 U.S. 145, 164 (1878).

[24] Davis v. Beason, 133 U.S. 333, 342 (1890).

[25] U.S. Const. amend. XIV, § 1.

[26] Plessy v. Ferguson, 163 U.S. 537 (1896).

[27] Brown v. Bd. of Educ., 347 U.S. 483 (1954).

[28] Slaughterhouse Cases, 83 U.S. (16 Wal.) 36, 77–80 (1872).

[29] Slaughterhouse Cases, 83 U.S. (16 Wal.) 36, 118 (1872) (Bradley, J., dissenting).

[30] Church of the Holy Trinity v. United States, 143 U.S. 457, 465, 468–69, 471 (1892).

[31] State v. Mockus, 120 Me. 84, 97 (1921). The Iowa Supreme Court affirmed a blasphemy conviction in 1974, but the opinion is devoid of any discussion of constitutional objections to the conviction. State v. Stoltenberg, 218 N.W.2d 452, 453 (Iowa 1974) (per curiam).

[32] Georgetown v. Scurry, 90 S.C. 346, 349 (1912).

[33] Mich. Comp. Laws § 750.103.

[34] Mich. Rev. Stat. of 1846, ch. 158.

[35] R.I. Gen. Law. § 11-11-5.

[36] Gitlow v. New York, 268 U.S. 652, 666 (1925).

[37] Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940) (emphasis added). The Supreme Court had, as early as 1934, seemed to imply that the free exercise of religion was protected by the Fourteenth Amendment. See Hamilton v. Regents of University of California, 293 U.S. 245, 262 (1934).

[38] Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942). At issue in Chaplinksy was a use of the Lord’s name in vain. Id. at 569. The defendant argued that his conviction violated both the freedom of speech and freedom of religion clauses of the First Amendment, as incorporated into the Fourteenth Amendment. Id. The US Supreme Court rejected all these arguments. Id. at 571.

[39] Everson v. Bd. of Educ., 330 U.S. 1, 8, 16, 17 (1947).

[40] McCollum v. Bd. of Educ., 333 U.S. 203, 210 (1948).

[41] Engle v. Vitale, 370 U.S. 421, 424 (1962).

[42] Abingdon School District v. Schempp, 374 U.S. 203, 223 (1963).

[43] Wallace v. Jaffree, 472 U.S. 38, 61 (1985).

[44] Stone v. Graham, 449 U.S. 39, 41–43 (1980) (per curiam).

[45] Edwards v. Aguillard, 482 U.S. 578, 596–97 (1987).

[46] Epperson v. Arkansas, 393 U.S. 97, 109 (1968).

[47] Marsh v. Chambers, 463 U.S. 783, 792–95 (1983).

[48] Van Orden v. Perry, 545 U.S. 677, 691 (2005) (plurality).

[49] McGowan v. Maryland, 366 U.S. 420, 431, 445 (1961).

[50] Braunfield v. Brown, 366 U.S. 599 (1961) (plurality); Gallagher v. Crown Kosher Super Markets of Massachusetts, 366 U.S. 617 (1961) (plurality).

[51] Torcaso v. Watkins, 367 U.S. 488, 489, 495 (1961).

[52] Sherbert v. Verner, 374 U.S. 398, 402–03, 407 (1963).

[53] Employment Division v. Smith, 494 U.S. 872, 879 (1990).

[54] Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

[55] 42 U.S.C. § 2000bb-1(b).

[56] City of Boerne v. Flores, 521 U.S. 507, 511 (1997).

[57] Fulton v. Philadelphia, 141 S. Ct. 1868 (2021).

[58] Timbs v. Indiana, 139 S. Ct. 682, 691–92 (2019) (Thomas, J., concurring in the judgment).

[59] Utah Highway Patrol Ass’n v. Am. Atheists, Inc., 565 U.S. 994, 1006 (2011) (Thomas, J., dissenting from denial of certiorari); Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring).

[60] Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020); Tandon v. Newsom, 141 S. Ct. 1294 (2021).

[61] Carson v. Makin, 142 S. Ct. 458 (2022).

[62] Groff v. DeJoy, 143 S. Ct. 646 (2023).

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