The First Amendment

Part I: The religion clauses

Sep 28, 2025

In my previous post “Introduction to the Constitution”, I neglected to mention that my primary, if not sole, source of information is the “Constitution of the United States: Analysis and Interpretation” website, henceforth referred to simply as the “Constitution Annotated” of the “CA”. It was published by Congress over a century ago, for anyone, from ordinary citizens like me to legal scholars, to consult, and is continuously updated. A source suitable for legal dissertations and amicus briefs is good enough by itself for my purposes.

With that out of the way, having touched on the Preamble, I’ve decided to tackle the Bill of Rights first. Comprising the first ten Amendments, the Bill of Rights is the true foundation of our democratic republic. It is these enumerated rights that differentiate us from the autocratic monarchy against which the American Revolution was fought to sever political ties with. At least they were, until now. The current misadministration is at this point a full blown fascist regime, violating our lawful rights with impunity Thus it’s crucial to understand these rights, and the founders’/framers’ intent. Each Amendment of which the Bill of Rights is comprised, written in a most succinct manner, some might even say downright terse, paints in broad strokes the rights under the Constitution that belong to We the People. These rights are our rightful inheritance, that we are being robbed of daily.

Beginning with the First Amendment:

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. 1

The Religion Clauses

We’ve seen how a significant percentage of the MAGA cult comprises self described “Christian Nationalists”, mostly a subsect of Evangelicals. One of their top priorities is to foist their religiosity onto the rest of the nation. As I often say: “Religious zealots believe that freedom of religion means you should be free to live in accordance with their beliefs”. This is in diametric opposition to both the spirit and text of the First Amendment Religion Clauses. As described by the “Constitution Annotated”:

“Together with the constitutional provision prohibiting religious tests as a qualification for office, these clauses promote individual freedom of religion and separation of church and state”. 2

Noteworthy here is the reference to the prohibition of religious tests as a qualification for office, from Article VI, section 3, which I hope to address in a future post. Also worth noting is how the language of the First Amendment is broadly written, or as “Constitution Annotated” puts it:

“The Framers’ goal was to state an objective, not to write a statute”.3

This approach makes sense when the goal is, as previously quoted, to (as per the CA) “promote individual freedom of religion and separation of church and state”.4 However, it also opens up numerous cans of worms. Quoting the “Constitution Annotated” again:

“…the Religion Clauses extend only to sincere religious activities, and in evaluating constitutional claims, the government may investigate whether a person’s beliefs are insincere and whether they are secular, stemming from political, sociological, or philosophical views rather than religious beliefs.
A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected”.5

That last sentence is especially salient in this atmosphere of “Christian Nationalism”.

It’s well known that King Henry VIII established the Church of England, AKA the Anglican Church, to break from the shackles of the Roman Catholic Church, so as to consolidate his absolute authority, including in religious matters. He would no longer defer to the Pope. It’s also well known that many of the early colonists went to the New World to escape religious persecution. In so doing, numerous colonies inflicted their own religious persecution upon their residents. Thus the concept of religious freedom evolved from the earliest colonies to even beyond ratification of the First Amendment. Indeed, it continues to evolve today.

Far more historical context exists than I’m prepared to cover here. Each colony had it’s own unique take on religious establishment, from New England Puritans, to Roger Williams – the Puritan Minister expelled from Massachusetts Bay for criticizing the Puritan government, arguing for stronger separation of church and state and went on to found Rhode Island, to William Penn, the Quaker founder of Pennsylvania for the very purpose of religious freedom to Virginia which eased up religious freedom over time, and so on.6

Suffice it to say the concept of religious freedom can be traced back as far as 16^th century England and continues up to the present day.

The establishment clause: “respecting an establishment of religion”

It’s generally accepted that this means the federal government is prohibited from establishing a national religion, such as King Henry VIII did with the Church of England. Yet, what are we to make of the word “respecting”? The “Constitution Annotated” has this to say:

“But a law may respect an establishment even if it does not explicitly establish a religion.”7

and

“…the Supreme Court has long understood the Establishment Clause to bar other types of government support that would tend to establish religion, as well. According to the Court, for the Founders, laws respecting the ‘establishment’ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity”.8

and finally

“The Supreme Court has often referred to government neutrality towards religion as its guiding principle in applying the Establishment Clause”.9

A conflict of two clauses: Separationist vs. Accommodationist

Separation of church and state is the conventional view of the establishment clause. However, upon closer inspection, it’s not quite so cut and dry. The Constitution Annotated has this to say:

The Establishment Clause prohibits the government from providing some types of support to religion, requiring some separation between church and state, while the Free Exercise Clause prohibits the government from excluding religious individuals from receiving the benefits of public welfare legislation because of their faith, allowing and even requiring some accommodation of religion.10

Thus, it can be seen that “respecting an establishment of religion” isn’t so well defined under some circumstances, and great care is imperative when examining conditions where such support might violate either the spirit or letter of the law. Of course, conditions such as an attempt by some to require The Ten Commandments be posted in every public school classroom is a rather blatant violation. Prohibiting posting of The Ten Commandments in public schools, conversely, doesn’t at all prohibit the free exercise of religion. It in fact merely prohibits respecting the establishment of a particular religion in our public schools. That seems straight forward enough, does it not? The arguments from the religious right is that this somehow “persecutes” them, which is a patently ridiculous argument which doesn’t even warrant a hearing in a lower court, much less the Supreme Court. One needn’t be a legal expert to recognize this. The Constitution Annotated continues:

The separationist view is embodied by Thomas Jefferson’s statement that the First Amendment created a wall of separation between church and State.11

and

Thus, in Everson v. Board of Education in 1947, the Supreme Court said that this wall must be kept high and impregnable.12

Later decisions loosened this definition somewhat, providing more of an “accommodationist” perspective.

In Zorach v. Clauson: the Court confirmed that the government could sometimes accommodate private religious practices without violating Everson’s wall.13

and

In 1971, in Lemon v. Kurtzman, the Supreme Court said that far from being a ‘wall,’ the line separating church from state is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.14

and

In a dissenting opinion in 1985, then-Associate Justice William Rehnquist argued that [t]here is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.15

Rehnquist apparently wasn’t of the “original intent doctrine” school of Constitutional interpretation, at least not in this particular case.

Thus, in the final analysis, we can definitively say “it’s complicated”.

The free exercise clause: “or prohibiting the free exercise thereof”

Freedom of religion has been part of the bedrock of American values since the time of inception. But what does it really mean? It’s widely understood that we are free to practice whatever religion we wish to, or even to practice no religion if we so choose. Unfortunately, we’ve also seen some fanatics insist that our society is “too permissive” – a notion most of us find patently ridiculous. There are those who would have it that “freedom of religion doesn’t mean freedom from religion”. I’d posit that, yes, it does. We are free to believe, practice and worship – or not – as we see fit, provided that it harms no one else, and doesn’t otherwise break the law. As will be seen, just as with the establishment clause, it’s more complicated than on the face of it. A landmark case, as per The Constitution Annotated:

The general framework for the Supreme Court’s Free Exercise jurisprudence was largely established in the 1940 case Cantwell v. Connecticut, which also gave the Supreme Court the opportunity to apply the Free Exercise Clause to the states. In Cantwell, the Court explained that the Religion Clauses embrace[ ] two concepts,—freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.
…the Free Exercise Clause categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such.16

Is there any reasonable doubt that this would include the freedom to not believe?

There are no restrictions on the freedom to believe. However, the freedom to act is another story. One obvious example would be a (hypothetical) religion that requires human sacrifices. This is, of course, completely objectionable to any civilized human being, and rightfully illegal.

One area where the free exercise clause runs into the establishment clause is when religious groups demand that their beliefs be codified in law. Examples include abortion, LGBT marriage, displaying the ten commandments in public school classrooms and government buildings, forced prayer in public school classrooms, and so on. All of these are tantamount to respecting the establishment of a religion.

The Constitution Annotated raises another landmark case:

In Torcaso v. Watkins, decided in 1961, the Supreme Court held that a state constitutional provision requiring public officeholders to declare a belief in the existence of God violated the Free Exercise Clause. Although the Court noted the historical precedent for such religious test oaths in Europe and in the Colonies, it held that the adoption of the U.S. Constitution and the First Amendment, combined with countervailing evidence of opposition to the oaths during colonial times, rendered religious test oaths historically and constitutionally discredited. By limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept, the state law violated constitutional free exercise protections.17

This too supports my contention that free exercise does indeed include the freedom to not believe. Ultimately, per the CA:

…the two provisions work together to ensure government neutrality towards religion: the Establishment Clause prohibits “a fusion of governmental and religious functions” or official governmental support for “the tenets of one or of all orthodoxies,” while the Free Exercise Clause protects “the right of every person to freely choose his own course” of religious observance “free of any compulsion from the state”.⁸18

This has been my longest post thus far. It’s obviously an intensely complex topic and I could probably go on for many more pages were I so inclined. Encyclopedic volumes have been written on each of the two religion clauses alone, however, I’d like to move on to even more pressing topics.

Next up: Freedom of speech. Stay tuned.

* My apologies for the sloppy citations. Substack doesn't provide much control over footnotes. Notably, it's impossible to have more than one footnote point to the same reference source. I've tried to compensate by grouping the same references together, separated with divider lines.
For example, footnotes 2 - 5 are all the exact same source.

References

Cong. Rsch. Serv., Constitution of the United States: Analysis and Interpretation, https://constitution.congress.gov (last visited Aug 29, 2025)

Cong. Rsch. Serv., Overview of the Religion Clauses (Establishment and Free Exercise Clauses), Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-2-1/ALDE_00013267/ (last visited Sep 7, 2025)

Cong. Rsch. Serv., Colonial Concepts of Religious Liberty , Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-2-2-4/ALDE_00013271/ (last visited Sep 7, 2025)

Cong. Rsch. Serv., General Principle of Government Neutrality to Religion, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-3-1/ALDE_00013071/ (last visited Sep 8, 2025)

Cong. Rsch. Serv., Accommodationist and Separationist Theories of the Establishment Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-3-2/ALDE_00013072/ (last visited Sep 18, 2025)

Cong. Rsch. Serv., Overview of Free Exercise Clause, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-4-1/ALDE_00013221/ (last visited Sep 25, 2025)

Cong. Rsch. Serv., Laws Regulating Religious Belief, Constitution Annotated, https://constitution.congress.gov/browse/essay/amdt1-4-2/ALDE_00013222/ (last visited Sep 25, 2025)

Cong. Rsch. Serv., Relationship Between the Establishment and Free Exercise Clauses, Constitution Annotated,https://constitution.congress.gov/browse/essay/amdt1-5/ALDE_00000039/ (last visited Sep 27, 2025)

🌈 Lance Trottier 🌈

Sep 28

Love it! Great write!

AND!

Thank you, my friend, for the CA website!

For the work that my Wife and I do with our multitude of political organizations, this will prove very useful, indeed!

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Jude Johnson

“The government of the United States is not, in any sense, founded on the Christian religion.”

– John Adams

Thank you for an excellent analysis. As my son was going through law school, he and I would have wonderful discussions about the Constitution and the Bill of Rights--which were not added as an afterthought to the Articles, but to emphasize and highlight their vital importance. Yes, I kept his Constitutional Law books and have found them quite handy when arguing with my MAGA neighbor because I show her the text in print.

Funny, she doesn't come bother me much any more. It's been nice. heh heh

I'm going to cross-post this to my Substack as well.

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