TheFirst Amendment guaranteesfreedom of religion through two provisions known as theestablishment clause and the free exercise clause: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

1. The establishment clauseseparates the institutions of religion and government and requires government to be neutral among religions and between religion and nonreligion.
2. The free exercise clauseprotects the right to practice any religion — or no religion — openly and freely without government interference. 

This article focuses on the free exercise clause, including what it means exactly, a brief history of the clause, what courts have said about free exercise, and what questions continue to be debated today.

What does the free exercise clause mean?

The First Amendment’s free exercise clause guarantees the freedom to:

• Choose to belong to any, or no, religion
• Practice religion without government involvement or control
• Change religion or belief

However, like all First Amendment rights, free exercise of religion is not absolute. The government may limit religious practice when it violates general laws that apply to everyone.

What is the history of the free exercise clause?

The free exercise clause traces its origins back to colonial America. Many early settlers made the dangerous journey from Europe to the New World to escape religious persecution and gain religious freedom.

A haven for the cause of conscience

Founded by Roger Williams in 1635, the state of Rhode Island was the first society in the Western world with no official state church and full, free exercise of religion. The colony became whatWilliams called “a haven for the cause of conscience,” welcoming people of all beliefs, including Quakers, Jews and free thinkers who were denied religious freedom in other colonies.

In 1681, Pennsylvania was alsofounded with no established religion and with protections for religious freedom. In the 1700s, other coloniesgranted full or partial religious freedom.

From toleration to free exercise

In 1776, Virginia held aconstitutional convention to declare independence from Great Britain and adopt the first Virginia Constitution. The delegates also created adeclaration of rights, a document that would greatly influence the drafting of the First Amendment in 1789. Thefirst draft of the declaration described religious freedom as “Toleration of the Exercise of Religion.” Believing that government toleration of religion did not go far enough, delegate James Madison proposed, and the convention adopted, an amendment changing the language to “free exercise of religion.” The government could no longer choose which religions to allow or disallow; people of all religions had the right to practice, independent of government control.

The first freedom

When the U.S. Constitution was ratified in 1788, it included no mention of religious freedom or other individual liberties protected in the Bill of Rights. The delegates reasoned that absent constitutional authority, the government could not interfere with natural, inalienable rights. In 1789, however, popular opinion persuaded the First Congress to safeguard rights guaranteed to the people by amending the Constitution to include the Bill of Rights. First on their list was religious freedom, which would be protected by the religion clauses.

How are the two religion clauses related?

The framers of the First Amendment envisioned the religion clauses working together to protect religious freedom. Under the free exercise clause, for example, religious individuals have the right to follow their faith by running for public office or advocating for laws consistent with their values. But under the establishment clause, religious people and groups may not use the government to impose their religion on others.

In cases involving religious freedom, the U.S. Supreme Court has attempted to balance the requirements of the two clauses. On one hand, strictchurch-state separation may unconstitutionally exclude religion from public life. On the other hand, government accommodation of religious practice can go too far and become government support for religion.

Here are two examples that show how these tensions arise in real-life scenarios:

1. Under the establishment clause, public schools arepermitted to accommodate free exercise of religion. For example, schools may allow students to use an empty classroom for prayer during the school day. That accommodation, however, would become endorsement of religion in violation of the establishment clause if school officials organize prayer services, allow staff to pray with students or spend tax dollars on a school chapel.
2. Military chaplains are commissioned officers who come from various religious traditions. They are responsible for both supporting all service members and ministering to those of their own faith. Government-funded ministers would appear to violate the establishment clause’s prohibition against entanglement of religion and government. The courts, however,have found that when people are removed from their religious communities to serve in combat, the military has an obligation to facilitate the free exercise of religion. Military chaplains, therefore, are an exception to the establishment clause necessary to uphold the free exercise clause.

 

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How have courts interpreted the free exercise clause?

In the 19th and early 20th centuries, religious freedom was limited in the U.S. because the First Amendment didn’t yet apply to the states. This meant state governments didn’t have to protect religious freedom. Protestants, the largest religious group, dominated the culture, often receiving preferential treatment in public life, including public schools. Minority religions, especially Catholics, Jews and Mormons, suffered discrimination.

In 1940, however, the Supreme Court applied the free exercise clause to the states (Cantwell v. Connecticut). Following that decision, the court began to hear many free exercise cases.

Here are five milestones in the court’s interpretation of the free exercise clause throughout the nation’s history.

1. Distinction between religious belief and action (1879)

Freedom of belief is absolute, but freedom to practice one’s beliefs is not.

Reynolds v. United States (1879) was the first free exercise case heard by the Supreme Court. In the decision, the court upheld the conviction of a Mormon man for violating antipolygamy laws. The court found the free exercise clause does not include the right to violate general laws that apply to everyone.

2. Expanded freedom to practice religion (1940)

The free exercise of religion is more than the right to believe; it is also the right to act on beliefs without government interference.

For the next 80 years, the court continued to rely on the belief/action distinction but clarified inCantwell v. Connecticut (1940) that the government could not pass laws that directly burdened religious practice.

In Cantwell, the court reversed the conviction of a Jehovah’s Witness arrested for soliciting without a permit. The court said a law giving local officials the authority to determine which religious groups would receive permits to solicit donations violated the free exercise clause by interfering with the practice of religion.

3. Compelling state interest for burdening religious practice (1963)

The government must exempt religious individuals or groups from laws that interfere with their religious practice, unless 1) the government can demonstrate a compelling interest for denying the exemption, and 2) the government can show it is carrying out that interest in a way that is least restrictive to religious freedom. This standard is known as “strict scrutiny.”

The court greatly strengthened the free exercise clause’s protection of religious conscience inSherbert v. Verner (1963). The court found South Carolina violated religious freedom by denying unemployment benefits to a Seventh-day Adventist, after she was fired for refusing to work on Saturdays, her holy day. The court said the free exercise clause requires accommodation for religious practice unless the state can demonstrate an interest of the highest order, known as a “compelling state interest,” such as public health or safety. Finding no such interest in this case, the court ruled that the woman was due unemployment benefits. 

4. A return to limits on religious practice (1990)

The court once again makes it more difficult for religious individuals and groups to get exemptions from general laws that place a substantial burden on the practice of their faith.

Almost 30 years later, the court’s ruling inEmployment Division, Department of Human Resources of Oregon v. Smith (1990) weakened the compelling state interest test in religious freedom cases. In that case, the court upheld Oregon’s denial of employment benefits to two Native Americans fired for using peyote in a religious ceremony. According to the court, because Oregon drug laws apply generally to everyone, the state did not need to show a compelling state interest to prohibit the religious use of peyote.

A broad coalition of religious and civil liberties groups saw the Smith decision as a serious blow to religious freedom. At their urging, Congress passed theReligious Freedom Restoration Act in 1993. RFRA requires courts to apply thestrict scrutiny test, including requiring a compelling government interest, when looking at laws burdening religious freedom. The Supreme Court struck down RFRA as too broad when applied to the states. But it still applies to the federal government, and several states have passed their own RFRAs. In many parts of the country, therefore, courts are still required to use the compelling state interest test when deciding free exercise cases. 

5. Expanding free exercise, narrowing no establishment (2017)

The free exercise clause requires the government to include religious organizations in public-funding programs, and this is the standard courts use today.

For more than 70 years, the Supreme Court interpreted the establishment clause to prohibit government funding of religion. The court allowed some forms of indirect aid, such as school vouchers, but disallowed direct support. Beginning in 2017, the court changed course. In aseries ofdecisions involvingpublic funds and religion, the court expanded its application of the free exercise clause, holding that religious organizations have a right to benefit from funding programs available to secular groups.

What free exercise issues remain under debate today?

The following three issues are likely to reach the Supreme Court in the next few years. How the court decides could either expand or restrict the application of the free exercise clause.

Religious freedom claims vs. LGBTQ+ rights

Religious business owners have sued or are being sued for refusing services to LGBTQ+ people, most often same-sex couples planning their wedding. To date,courts haveruled differently on this matter, depending on the type of service offered.

LGBTQ+ rights and religious freedom claims are colliding in other sectors of society as well: Canreligiouscharities exclude LGBTQ+ people from adoption services on religious grounds? Can religious organizations receiving public fundsbe exempted from government regulations protecting LGBTQ+ people? The outcome of these disputes will have a major impact on both LGBTQ+ rights and the scope of free exercise of religion for decades to come.

Parental religious freedom rights in public schools

In Mahmoud v. Taylor (2025), the Supreme Courtruled in favor of parents who sought to opt their children out of LGBTQ+-themed books in a public school curriculum on religious freedom grounds. This is widely viewed as a significant victory for parental rights.

Lawsuits are expected from both sides as schools implement this decision in classrooms. A broad application of parental opt-outs for religious reasons could alter what curricula public schools decide to teach and how they decide to teach it.

Ten Commandments displays in classrooms

InStone v. Graham (1980), the Supreme Court struck down displays of the Ten Commandments in public schools as a violation of the establishment clause.

Texas andLouisiana are now attempting to reverse that ruling by requiring public schools to post the Ten Commandments in every classroom — although so far, courts have struck down these requirements. State officials argue that displaying a document significant in the development of the U.S. legal system is teaching history, not imposing or promoting religion.

Opponents are asking courts to strike down Ten Commandments displays as violations of both the establishment and free exercise clauses. In this view, posting the Ten Commandments in classrooms not only promotes religion; it also burdens free exercise by pressuring students from other faiths or no faith to respect or adopt a religious teaching.

The free exercise clause guarantees religious freedom for all

The religion clauses of the First Amendment — no establishment and free exercise — protect the right of people of all faiths and beliefs to practice any religion or no religion, free from government interference. This constitutional framework makes possible peaceful coexistence across deep religious and ideological differences. Despite outbreaks of religious division and conflict in our history, the United States remains today a bold and successful experiment in religious freedom, thanks to the First Amendment.

Charles Haynes is a senior fellow for religious liberty at the Freedom Forum. He can be reached at[email protected].