Advancing freedom for all in the 21st century
Where do religious freedom protections come from?

Written by William C. Duncan

July 31, 2020

Editor’s note:

As we described in a previous series, religious freedom is a founding aspiration of the United States, but in practice it has been difficult to achieve. Recently, there have been serious questions raised about whether it should remain an aspiration or if it is an unnecessary drag on more important objectives like administrative efficiency (e.g., prohibiting all church meetings during the pandemic) or eliminating distinctions between groups (e.g., anti-discrimination laws).

In this series, we will examine a different approach to religious freedom. It is an approach that attempts to preserve religious freedom as an aspiration by reducing opportunities for conflict between the freedom of people of faith and religious organizations to act on their beliefs, and the interests of those who feel limited by or discriminated against by the actions of those who profess faith.

The series will begin with foundational information on the law of religious freedom, including the current laws that govern conflicts between government actions and religious exercise. It will then describe current controversies between religious liberty and the potential legal solutions to them. Finally, it will describe the alternative approach, including new legislation that adopts this concept.

This installment describes the sources for the law of religious freedom in the United States.

If you were asked what the law of religious freedom was, where would you look to find out?

The U.S. Constitution and religious freedom

A good answer would be the U.S. Constitution. The Constitution creates the framework for making the decisions that govern our national community and, critically, identifies limitations on the power of government. So, the primary source for the law of religious freedom is the First Amendment to the Constitution,* which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

For this series, we will focus on the second clause, which precludes any action by Congress that limits the ability of religious people or organizations to act on (or exercise) their beliefs. This is a strong, categorical statement and is the ideal to which we aspire as a nation, but it does not necessarily answer the many practical questions that arise.

Thankfully, the Framers of the Constitution created other sources for legal rules that might address specific conflicts.


The first source for legal rules that address religious freedom is Congress, which is the branch of government assigned by the Constitution to make law. Congress can, in its laws, protect religious freedom. For instance, when the military was unwilling to let servicemen wear yarmulkes (Jewish skullcaps), Congress enacted a law that allowed religious apparel for soldiers in uniform. It can, on the other hand, create burdens on religious practice, such as when Congress prohibited a substance used in religious ceremonies.

Administrative regulations

The second is the executive branch. While it does not have formal lawmaking powers, in practice it creates many legal rules. When Congress passes a broad statute, it often formally assigns authority to administrative agencies to fill in details in the law. These regulations can also create protections or burdens for religious exercise. For example, earlier this month, the Supreme Court decided a case with both types of regulations – the contraception mandate (commonly known from the Hobby Lobby case), which required some religious organizations to provide contraception to employees, and the broad conscience exception to the mandate. Both of these regulations were adopted at different times by the same agency – the Department of Health and Human Services.

Court decisions

The Constitution gives to the Supreme Court and lower federal courts the authority to determine how the other sources of law apply in specific disputes. They can invalidate laws that infringe on religious freedom, like the regulation that prevented parents in Montana from using a private school scholarship at religious schools. They can also interpret other laws in ways that allow the government to limit religious practice of citizens, like the Native American drug counselor who was fired for attending a religious ceremony where peyote was used.

An example

The recent Supreme Court decision, Hobby Lobby v. Burwell (referenced above), illustrates how these various legal sources interact and can contribute to the legal climate for religious freedom.

In that case, Congress enacted a law requiring employers to offer certain health benefits to female employees at no cost and delegated to the Department of Health and Human Services to determine which these would be. The department created a regulation mandating that employers would have to offer contraceptives. A business that objected, on religious grounds, to offering contraceptives it believed would cause an abortion sued, and the Supreme Court applied the Constitution (which the court said did not help the employer’s claim) and another federal statute (Religious Freedom Restoration Act) to determine that the company did not have to offer the specific drugs. Ultimately, the court decided Hobby Lobby did not have to provide this health service to employees.

At the state level

Each state has the same sources for legal rules, and the free exercise clause has been interpreted as applying to state governments as well.

As we begin our discussion of ways to protect religious freedom in law and in practice, it will be helpful to think of how these sources of law interact to protect or threaten the ability of groups and individuals to act on their own beliefs.

The next part of this series will describe the current legal rules for handling religious freedom disputes in each of these sources of the law.

*There is also an important religious protection in Article 6, which provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” This prevents someone from being excluded from serving in government because of their religious beliefs or lack of religious beliefs.

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