What are the First Amendment religion clauses?

The First Amendment to the U.S. Constitution -- ratified December 15, 1791 as the opening article of the Bill of Rights -- begins with two religion clauses that form the constitutional foundation of church-state relations in the United States. The full text of the First Amendment reads: '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.' The Establishment Clause appears first -- 'Congress shall make no law respecting an establishment of religion' -- and prevents the government from creating an official state church, from favoring one religion over another, and from entangling government resources with religious institutions in ways that cross the constitutional line. The Free Exercise Clause -- 'or prohibiting the free exercise thereof' -- bars the government from penalizing, burdening, or conditioning benefits on an individual's religious beliefs or practices. Article VI, Clause 3 separately provides that 'no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,' protecting every candidate for the presidency and every federal officeholder from any requirement that they profess a particular faith. Originally applicable only to Congress, both religion clauses were incorporated against state and local governments through the Fourteenth Amendment's Due Process Clause. The Supreme Court first applied the Establishment Clause to the states in Everson v. Board of Education, 330 U.S. 1 (1947), in which Justice Black's majority upheld a New Jersey statute reimbursing parents for bus fares to parochial schools while articulating Jefferson's 'wall of separation between church and state' as the interpretive metaphor for the clause. The Establishment Clause's incorporation against the states through Everson was unanimous even though the reimbursement program was upheld 5-4; every subsequent Establishment Clause case has proceeded on the assumption that the clause binds state and local governments with the same force as the federal government.

The Establishment Clause's mid-twentieth-century trajectory produced a body of doctrine centered on public schools. Engel v. Vitale, 370 U.S. 421 (1962), held 6-1 that a state-composed, nondenominational prayer recited in New York public schools was an unconstitutional establishment of religion: government sponsorship of prayer in the public school setting is a classic establishment because it uses public authority and a captive student audience to advance religious observance, however bland the prayer's content. Abington School District v. Schempp, 374 U.S. 203 (1963), extended that holding to Bible readings and recitations of the Lord's Prayer in public school. Lemon v. Kurtzman, 403 U.S. 602 (1971), decided unanimously by Chief Justice Burger, struck Pennsylvania and Rhode Island statutes that supplemented the salaries of parochial school teachers of secular subjects, and in doing so articulated a three-part test that governed Establishment Clause analysis for fifty years: (1) the statute must have a secular legislative purpose; (2) its principal or primary effect must be one that neither advances nor inhibits religion; and (3) the statute must not foster an excessive government entanglement with religion. The third prong -- excessive entanglement -- was satisfied by the very monitoring that would be required to ensure parochial school teachers of public funds taught only secular content, making salary supplements for parochial school teachers structurally unconstitutional. Lee v. Weisman, 505 U.S. 577 (1992), held 5-4 that a school-sponsored nonsectarian prayer at a public middle school graduation ceremony was an unconstitutional establishment even though attendance was technically voluntary -- the social pressure on students to conform and participate made the coercion implicit. Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), applied the same analysis to student-led prayers delivered over the public address system at high school football games under a school-authorized election process, holding that the school's involvement in selecting the speaker and providing the microphone gave the prayer the imprimatur of state endorsement.

Kennedy v. Bremerton School District, 597 U.S. 507 (2022), decided 6-3 with Justice Gorsuch writing for the majority, fundamentally reoriented Establishment Clause doctrine by expressly abandoning the Lemon test. Joseph Kennedy, a public high school football coach employed by the Bremerton School District in Washington State, engaged in personal, private prayer on the field immediately after each game; after the school district directed him to cease in-view religious expression, he brought a Free Exercise claim, and the majority ruled in his favor under both the Free Exercise and Establishment Clauses. Justice Gorsuch's majority opinion held that the Lemon framework and its 'endorsement test' variant failed to reflect 'an original understanding of the Establishment Clause or this Court's precedents' -- the Court stated that the Lemon test required courts to 'act as if the Establishment Clause were a prohibition on any acknowledgment of religion by government,' an approach inconsistent with the original meaning and with the historical practices and understandings that Americans held at the founding. The proper framework, the majority held, requires courts to interpret the Establishment Clause by 'reference to historical practices and understandings.' Under that framework, Kennedy's brief, quiet, personal prayers -- consistent with a long tradition of Americans' personal religious expression -- were protected, and the school district's attempt to suppress them violated the Free Exercise Clause. Justice Sotomayor's dissent, joined by Justices Breyer and Kagan, accused the majority of 'paying almost no attention to the constitutional importance of separating church from state' and abandoning decades of precedent protecting students in public schools from state-sponsored religious observance. The Kennedy decision leaves open how the historical practices test applies to cases beyond personal employee prayer, and courts and commentators continue to work through its implications for public school religious displays, legislative chaplains, and government-funded social services delivered by religious organizations.

The Free Exercise Clause's modern doctrine traces to two contrasting approaches separated by three decades. Sherbert v. Verner, 374 U.S. 398 (1963), held 7-2 that South Carolina's denial of unemployment benefits to a Seventh-day Adventist who refused Saturday work for religious reasons violated the Free Exercise Clause; Justice Brennan applied strict scrutiny, requiring the government to show a compelling interest before substantially burdening religious practice. That framework governed free exercise cases until Employment Division v. Smith, 494 U.S. 872 (1990), in which Justice Scalia's majority, 6-3, held that the Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. The case arose from Oregon's denial of unemployment benefits to two members of the Native American Church fired for using peyote in a religious ceremony, in violation of Oregon's drug laws. Justice Scalia reasoned that permitting individuals to use religious beliefs to excuse compliance with otherwise valid laws of general applicability would make each person 'a law unto himself' -- the Court held that the Constitution permits, but does not require, religious exemptions from neutral laws. Smith sharply limited the reach of the Free Exercise Clause for laws that do not single out religion for adverse treatment. Congress responded by enacting the Religious Freedom Restoration Act (RFRA), Pub. L. 103-141 (1993), to restore Sherbert-style compelling-interest scrutiny for federal laws; in City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court held that RFRA could not constitutionally be applied to state laws under the Fourteenth Amendment's Section 5 enforcement power, leaving the Smith standard as the constitutional floor for state free exercise claims and RFRA as a statutory right against only the federal government. Thirty-four states enacted their own state-level RFRAs to restore heightened scrutiny in state courts. Fulton v. City of Philadelphia, 593 U.S. 522 (2021), decided 9-0 on the bottom-line result but with significant disagreements on the rationale, held that Philadelphia violated the Free Exercise Clause by conditioning Catholic Social Services' foster care certification contract on its agreement to certify same-sex couples as foster parents. Chief Justice Roberts's majority applied Smith but found a Smith exception: where a government system provides a mechanism for individualized exemptions -- Philadelphia's contract authorized the Commissioner of Human Services to grant exceptions at their sole discretion -- the government may not deny an exemption based on religion without satisfying strict scrutiny. Philadelphia's system had that mechanism and could not satisfy strict scrutiny as applied to CSS. Justices Alito, Gorsuch, Thomas, and Barrett concurred in the judgment but argued that Smith should be overruled outright and that Sherbert's compelling-interest test should be restored as the constitutional standard.

The 2028 presidential election will be shaped by the religion clauses in four interconnected areas. First, school choice: Carson v. Makin, 596 U.S. 767 (2022), decided 6-3 by Chief Justice Roberts, held that Maine's tuition-assistance program for students in rural areas without public high schools violated the Free Exercise Clause by excluding religious schools -- the program was otherwise available to secular private schools, and a state may not exclude religious options from an otherwise neutral public benefit program. Espinoza v. Montana Department of Revenue, 591 U.S. 464 (2020), similarly struck Montana's exclusion of religious schools from a scholarship program; Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017), held that Missouri could not exclude churches from a generally available playground resurfacing grant program on the ground that the state constitution prohibited public funding of religious institutions. Together, Carson, Espinoza, and Trinity Lutheran constrain a state's ability to exclude religious schools and organizations from neutral public benefit programs -- a development that directly implicates state education funding and voucher programs debated in the 2028 election. Second, conscience exemptions: the Smith standard means that a neutral, generally applicable law requiring healthcare providers, bakers, photographers, or social service agencies to serve all customers regardless of religious objection generally survives Free Exercise challenges unless it provides a mechanism for secular exemptions while denying religious ones (the Fulton trigger) or unless the law's stated purpose shows hostility to religion (Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)). Third, government religious expression: Kennedy's historical-practices test now governs government employees' personal religious expression, and courts must apply that test to contexts ranging from legislative prayers to government social media posts to public monuments. Fourth, judicial appointments: the 33 Class II Senate seats on the 2028 ballot determine which party controls the Senate and which nominees to the federal judiciary are confirmed; the Justices confirmed after 2028 will resolve how broadly Kennedy's historical-practices test applies, whether Smith survives or is overruled in favor of Sherbert strict scrutiny, and how the line between permissible school choice funding and prohibited governmental establishment of religion is drawn for the next generation of religion-clause cases.