Separation of Church and State: How Jefferson’s Wall Became Constitutional Law

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The phrase “separation of church and state” drives some of America’s most heated political debates. School prayer, religious displays in public spaces, and faith-based hiring practices all spark fierce arguments about where to draw the line between religious freedom and government authority.

Yet the phrase itself appears nowhere in the U.S. Constitution. Its power comes from a metaphor used by President Thomas Jefferson in an 1802 letter, which the Supreme Court later adopted as the definitive interpretation of the First Amendment’s religion clauses.

This legal concept has evolved from protecting religious minorities in colonial America to shaping modern battles over LGBTQ+ rights and public school curricula. Two competing philosophies—separationism and accommodationism—continue to define how Americans balance religious liberty with secular governance.

The Birth of a Metaphor

The idea that church and state should operate in separate spheres predates the Constitution by centuries. Religious persecution and political upheaval in Europe shaped this concept, but the metaphor of a “wall” became its most enduring and important symbol.

Jefferson’s Letter to the Danbury Baptists

The phrase “wall of separation between Church & State” entered American political vocabulary through a carefully crafted letter from President Thomas Jefferson. In October 1801, the Danbury Baptist Association of Connecticut wrote to congratulate the newly elected president and express their anxieties as a religious minority.

Connecticut had legally established the Congregationalist Church as the state-supported religion. The Baptists felt their religious freedom was precarious—viewed not as an inalienable right but as a privilege the state could revoke at will.

Their letter articulated a fundamental principle: “That Religion is at all times and places a Matter between God and Individuals—That no man aught to suffer in Name, person or effects on account of his religious Opinions.”

Jefferson saw an opportunity to make a major public statement. On January 1, 1802, he sent his reply. He affirmed their core belief: “religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions.”

He then connected this principle directly to the Constitution, expressing his “sovereign reverence” for the act of the American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church & State.”

This was no casual response. Jefferson’s drafts, preserved at the Library of Congress, reveal that he consulted with his attorney general before finalizing the text. He removed more pointed phrases to avoid unnecessary provocation, including his personal refusal to proclaim national days of fasting and thanksgiving.

The letter was quickly published in newspapers, serving as a public declaration of his administration’s philosophy. It signaled his commitment to a government that would not intrude upon the domain of conscience.

Intellectual Foundations

While Jefferson popularized the “wall” metaphor in America, he drew on a rich intellectual tradition spanning theology and philosophy.

The earliest American use of the metaphor came from Roger Williams, a Puritan minister banished from the Massachusetts Bay Colony for his radical views on religious freedom and Native American rights. In 1644, Williams founded Rhode Island as a haven for religious dissenters and wrote of a “wall or hedge of separation between the garden of the Church and the wilderness of the world.”

Williams’s concern was primarily theological. He believed any entanglement with government would corrupt the purity of the church. His wall was designed to protect the sacred space of religion from the profane influence of the state—the inverse of modern debates that often focus on protecting secular government from religious influence.

Philosophically, English philosopher John Locke provided the most significant contribution. In his “A Letter Concerning Toleration” (1689), Locke argued that government power is confined to earthly matters and lacks authority over the “care of souls.” Under a social contract, rational people could not cede authority over their conscience to government because faith cannot be compelled.

Locke’s arguments for religious tolerance and separation of civil and religious spheres became cornerstone Enlightenment thought. They profoundly influenced the American founders, including Jefferson and Madison.

From Colonial Experience to Constitutional Text

The First Amendment’s religion clauses responded directly to the lived experiences of colonists. Many had fled Europe to escape persecution by powerful state-sponsored churches like the Church of England, where the monarch served as both head of state and head of the church.

Yet many colonies simply replicated this model in the New World. At the time of the Revolution, nine of the thirteen colonies had official, established churches. These establishments were supported by taxes levied on all citizens, regardless of personal beliefs. Dissenters often faced penalties from fines to imprisonment.

The most pivotal battle for religious freedom occurred in Virginia. In 1784, the legislature introduced a bill to levy a general tax supporting “Teachers of the Christian Religion.” Patrick Henry championed the proposal.

James Madison penned his monumental “Memorial and Remonstrance Against Religious Assessments” in opposition. He argued that religion is a duty owed to the Creator and is wholly exempt from civil society’s authority. He warned against even a “three pence” tax for religion, seeing it as a breach that could erode all liberties.

Madison’s arguments, combined with a coalition of Baptists and other dissenting sects, defeated the bill. The following year, the Virginia legislature enacted the Virginia Statute for Religious Freedom, drafted by Thomas Jefferson.

The Supreme Court in Everson later pointed directly to this Virginia struggle as the key to understanding the Establishment Clause’s meaning.

This context is crucial for understanding the First Amendment’s original purpose. When ratified in 1791, its text began “Congress shall make no law…” This was a deliberate limitation intended to restrain only the federal government.

A key motivation was federalism. States like Massachusetts and Connecticut, which still had established churches, wanted assurance that the new national government could not interfere with their internal religious arrangements.

The Establishment Clause initially served a dual purpose: preventing Congress from creating a national church while protecting states’ rights to maintain their own established churches. This reveals that the modern concept of separation applying to all government levels is not an originalist reading but a profound legal transformation made possible by the Fourteenth Amendment nearly eight decades later.

The First Amendment’s Twin Protections

The first sixteen words of the First Amendment contain two distinct but intertwined clauses governing religion: the Establishment Clause and the Free Exercise Clause. While they form a single sentence, they create different protections that often exist in tension.

The Establishment Clause

At its minimum, the Establishment Clause prohibits the federal government from creating an official national church and from coercing religious observance or financial support.

As the Supreme Court articulated in Everson, it means that neither state nor federal government can “set up a church,” “pass laws which aid one religion, aid all religions, or prefer one religion over another,” or “force nor influence a person to go to or to remain away from church against his will.”

Beyond this core agreement lies a deep interpretive divide over the clause’s true scope.

The textualist-originalist perspective argues that the clause should be interpreted based on its meaning at the time of founding. Proponents contend that the Framers were concerned with preventing “actual legal coercion”—practices like mandatory tithing, compulsory church attendance, or government dictating church doctrine.

From this perspective, government actions that merely acknowledge or accommodate religion without coercing participation do not constitute an “establishment” in the original sense.

The living constitutionalist perspective argues that the clause’s principles must adapt to modern, pluralistic society. Proponents believe the clause was intended to prevent “religiously based strife, conflict, and social division” that inevitably arise when government takes sides in religious matters.

They advocate for strict separation to ensure government does not endorse any religious message, which they argue makes religious minorities and non-believers feel like political outsiders. This approach prioritizes government neutrality not just between religions, but between religion and non-religion.

The Free Exercise Clause

The Free Exercise Clause protects individuals’ rights to hold religious beliefs and, within limits, to act on them without government interference. It guarantees what Roger Williams called “soul liberty”—the freedom to follow one’s conscience in matters of faith.

From its earliest interpretations, the Supreme Court has drawn a crucial distinction between religious belief and religious action. The freedom to believe is absolute; government can never compel or punish a person for their thoughts or faith.

The freedom to act on those beliefs, however, is not absolute. Government can regulate or prohibit actions, even if religiously motivated, if they violate public health, safety, or morals, or conflict with a “compelling governmental interest.”

This “belief-action dichotomy” was first established in 19th-century cases concerning Mormon polygamy, where the Court held that while Mormons were free to believe in polygamy, government was free to outlaw its practice.

When the Clauses Collide

The Establishment and Free Exercise Clauses are not always in harmony. They often pull in opposite directions, creating constitutional tension courts must resolve.

Consider a common scenario: a state offers tuition assistance to students attending private schools. If the state excludes religious schools to avoid “establishing” religion, parents may sue arguing this violates their Free Exercise right to direct their children’s education according to their faith.

If the state includes religious schools to honor free exercise, taxpayers may sue arguing that using public funds for religious education violates the Establishment Clause.

In these situations, the clauses are in direct conflict. One demands non-establishment, the other demands accommodation. Federal courts must act as umpire, striking a balance between these competing constitutional commands.

The history of church-state law is the story of the Court’s ongoing effort to find stable equilibrium between these fundamental principles. This reveals that the law is not a fixed set of rules but a continuous process of balancing opposing values.

A subtle transformation has occurred within the Free Exercise Clause itself. Historically, it served as a shield—a defense against government actions that targeted or penalized religious practice.

In recent decades, however, the clause has been increasingly wielded as a sword. Litigants now argue that the Free Exercise Clause entitles them to equal shares of public benefits, such as government grants or tuition programs.

The claim is no longer simply “Do not penalize my faith,” but has become “You must fund my faith-based activities on an equal basis with secular ones, or you are discriminating against me.” This offensive use dramatically heightens potential conflict with the Establishment Clause’s prohibition on government funding of religion.

Supreme Court’s Wall-Building

For the first 150 years of the nation’s history, the First Amendment’s religion clauses had little impact on most Americans’ lives. They applied only to the federal government, leaving states free to regulate religion as they saw fit.

This changed dramatically in the mid-20th century when the Supreme Court began applying these clauses to states and building a complex, often controversial body of law. The Court developed various legal tests to analyze church-state cases.

Applying the Wall to States

The modern era began with Everson v. Board of Education (1947). The case involved a New Jersey statute that authorized local school boards to reimburse parents for costs of transporting children to school on public buses, including parents of children attending private Catholic schools.

Local taxpayer Arch Everson challenged the law, arguing that using taxpayer money to support transportation to religious schools was an unconstitutional “establishment of religion.”

The Supreme Court’s 5-4 decision was profoundly paradoxical. First, in a revolutionary step, the Court declared that the Establishment Clause applied to state and local governments through the Fourteenth Amendment’s “due process” clause. This process is known as “incorporation.”

Writing for the majority, Justice Hugo Black reached back to Jefferson’s 1802 letter and officially enshrined the “wall of separation” metaphor into constitutional law: “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

However, after building this high separationist wall, the Court concluded that the New Jersey busing program did not actually breach it. Justice Black reasoned that the program was a general public welfare measure, available to all students regardless of religion. It was a “child benefit” program, like providing police and fire protection to religious institutions.

The four dissenting justices vehemently disagreed, arguing that paying for transportation to religious schools was indistinguishable from directly funding the church’s religious mission.

Everson is crucial precisely because of its internal contradiction: it announced strict separation while delivering practical accommodation. This tension has been the source of legal and political debate ever since.

Belief vs. Action

The first major Supreme Court case interpreting the Free Exercise Clause was Reynolds v. United States (1879). The case involved George Reynolds, a member of the Church of Jesus Christ of Latter-day Saints and secretary to Brigham Young in the Utah Territory.

He was charged with bigamy under federal law. Reynolds freely admitted to having two wives. His defense was that polygamy was a tenet of his faith and therefore the law prohibiting it violated his right to free exercise of religion.

The Supreme Court unanimously rejected his argument and upheld the conviction. Chief Justice Morrison Waite made a crucial distinction that became a cornerstone of First Amendment law.

The Constitution protects religious belief, but not necessarily religious action. While Congress was “deprived of all legislative power over mere opinion,” it was “left free to reach actions which were in violation of social duties or subversive of good order.”

The Court reasoned that allowing individuals to defy generally applicable laws based on religious belief would “make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Under such a system, “Government could exist only in name.”

Reynolds established the foundational “belief-action dichotomy”: government cannot regulate what you believe, but it can regulate what you do. This principle, while modified and challenged over the years, remains central to Free Exercise jurisprudence.

Prayer in Schools

Few Supreme Court decisions have generated as much public backlash as Engel v. Vitale (1962). The case concerned a policy adopted by the New York State Board of Regents encouraging school districts to begin each day with prayer.

The Regents composed the prayer themselves. It was short, non-denominational, and ostensibly voluntary: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

A group of parents, including Steven Engel, challenged the practice as a violation of the Establishment Clause.

By a 6-1 vote, the Supreme Court agreed with the parents and struck down the prayer. Justice Hugo Black declared that the prayer program was “wholly inconsistent with the Establishment Clause.”

He argued that it is “no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.”

The Court dismissed the state’s arguments that the prayer was harmless because it was denominationally neutral and student participation was voluntary. Justice Black explained that the Establishment Clause is violated by the simple fact of government sponsorship of religious activity.

The “indirect coercive pressure” upon students to conform was enough. By putting its power and prestige behind a particular religious exercise, New York had unconstitutionally established a religious practice.

The decision met widespread public condemnation, but the Court held its ground, extending the principle a year later in Abington School District v. Schempp to ban school-sponsored Bible readings.

The Lemon Test Era

For nearly half a century, Establishment Clause analysis was dominated by the Lemon test. The case of Lemon v. Kurtzman (1971) involved laws in Pennsylvania and Rhode Island that provided state financial aid to non-public schools, including many religious schools.

The aid was for secular expenses only—teacher salaries for secular subjects and costs of secular textbooks. Taxpayers sued, arguing the programs violated the Establishment Clause.

In a unanimous decision, the Supreme Court found the laws unconstitutional. Chief Justice Warren Burger attempted to synthesize the Court’s past decisions into a single, workable doctrine.

The result was a three-pronged test:

Secular Purpose: The law must have a secular, non-religious legislative purpose.

Primary Effect: The law’s principal effect must be one that neither advances nor inhibits religion.

Excessive Entanglement: The law must not foster “excessive government entanglement” with religion.

If government action failed any prong, it was deemed unconstitutional.

Applying the test, the Court found that while the state aid programs had a valid secular purpose (improving education), they failed the entanglement prong. Because parochial schools were “an integral part of the religious mission of the Catholic Church,” the state would have to engage in “comprehensive, discriminating, and continuing state surveillance” to ensure public funds were not used to advance religion.

This constant monitoring would create excessive entanglement between church and state.

The Lemon test became the default standard for decades. However, it was widely criticized for being vague, subjective, and inconsistently applied. Over time, the Court began modifying it, and some justices openly called for its abandonment.

Finally, in Kennedy v. Bremerton School District (2022), the Supreme Court formally declared it had abandoned the Lemon test in favor of a new approach based on “historical practices and understandings.”

Strong Accommodation Era

During the same era it was enforcing strict separation on the Establishment Clause side, the Supreme Court dramatically expanded protections under the Free Exercise Clause. Two cases represent the high-water mark for requiring government accommodation of religious practice.

In Sherbert v. Verner (1963), Adell Sherbert, a member of the Seventh-day Adventist Church, was fired from her textile mill job because she would not work on Saturday, her faith’s Sabbath. South Carolina then denied her unemployment benefits, ruling she had refused available work without “good cause.”

The Supreme Court found this unconstitutional. Justice William Brennan established what became known as the Sherbert test or compelling interest test: when a neutral, generally applicable law imposes a burden on individual religious practice, government must demonstrate the law is justified by a “compelling state interest” and is the “least restrictive means” of achieving that interest.

The Court applied this powerful test in Wisconsin v. Yoder (1972). Three Amish families refused to send their children to public high school after eighth grade, violating Wisconsin’s compulsory education law.

They argued that high school’s values and environment were “in sharp conflict with the fundamental mode of life mandated by the Amish religion.”

The Supreme Court agreed with the Amish parents. Using the Sherbert framework, the Court balanced the state’s interest in education against the Amish community’s fundamental right to free exercise. It concluded that the state’s interest was not sufficiently compelling to override the well-established religious practices of the Amish, which would be gravely endangered by forcing their children into a “worldly” high school environment.

These cases represented a major shift, requiring government to carve out exemptions from neutral laws to accommodate religious believers. This era of strong accommodation came to an abrupt end with the Court’s 1990 decision in Employment Division v. Smith, which largely abandoned the compelling interest test.

The pendulum swing between these cases illustrates the dynamic nature of church-state law. Landmark decisions often provoke reactions, leading to public debate, legislative action like the Religious Freedom Restoration Act (RFRA), and further court cases that continue reshaping the legal landscape.

Two Competing Philosophies

Underlying specific legal arguments are two fundamentally different philosophies about the proper relationship between religion and government. These competing viewpoints—separationism and accommodationism—represent the two poles of the church-state debate.

Separationist View

The separationist position argues for a strict “high and impregnable” wall between church and state. Strict separationists believe the First Amendment requires a clean break between religious institutions and all government levels.

The core arguments for separationism are rooted in a particular understanding of neutrality and the First Amendment’s purpose. They contend that government must be strictly neutral, not only among different religious faiths but also between religion and non-religion.

Any government action that appears to endorse or favor religion, even generally, violates this neutrality and sends a message to non-believers and religious minorities that they are not full members of the political community.

Separationists argue that entanglement between government and religion harms both. They believe it was one of the primary “evils” the First Amendment was designed to prevent. When government gets involved in religious matters, it leads to political division along sectarian lines.

Government involvement can corrupt religion by politicizing faith and using it for secular ends. This viewpoint is often associated with living constitutionalist judicial philosophy, which holds that constitutional principles must be interpreted to protect individual liberties and minority rights in a diverse, evolving society.

Accommodationist View

The accommodationist position offers a different interpretation. Accommodationists reject the idea of a high wall, arguing that the First Amendment permits, and perhaps encourages, cooperation and a “beneficial relationship” between government and religion.

They believe government and religion are “compatible and necessary to a well-ordered society.”

Accommodationists often base arguments on an originalist reading of the Constitution. They contend that the Framers’ primary goal was preventing creation of a single, coercive national church, not purging religion from public life entirely.

They point to the Establishment Clause text, which forbids laws “respecting an establishment of religion,” arguing this language targets a specific state church, not general, non-preferential support for religion.

Under this view, government can acknowledge and accommodate religion’s role in American life, as long as it does not coerce participation or favor one denomination over others.

This philosophy is often associated with textualist-originalist jurisprudence, which seeks to interpret the Constitution based on the original public meaning of its text at ratification. Accommodationist justices like the late Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas have argued that the Establishment Clause is only violated by “actual legal coercion,” not by government actions that merely endorse or recognize religion.

The entire debate distills down to a fundamental disagreement over the meaning of “neutrality.” For separationists, neutrality requires government to treat religion and non-religion as equals; any special acknowledgment of religion departs from neutrality.

For accommodationists, neutrality means government must not prefer one faith over another; it does not prohibit government from recognizing religion’s unique and positive role in society as a whole.

This subtle but profound difference in definition explains how two people can look at the same government action—a holiday display, school voucher program, or prayer before a town meeting—and reach diametrically opposed conclusions, with both claiming to be true defenders of the First Amendment.

Modern Battlegrounds

In the 21st century, the battle over separation has shifted to new fronts. While the era of creating official state churches is long past, fierce debates continue over religion in public schools, public funds for faith-based programs, religious symbols on government property, and collisions between religious freedom and civil rights.

The Supreme Court’s jurisprudence is dynamic, with recent decisions signaling a significant move toward accommodationism.

Religion and Public Education

Public schools remain the most intense battleground for church-state conflicts. Recent controversies have moved beyond traditional questions of student-led prayer to focus on school employee actions and curriculum content itself.

The most significant recent development was the Supreme Court’s 2022 decision in Kennedy v. Bremerton School District. The case involved a high school football coach who engaged in personal, quiet prayer on the 50-yard line after games.

The school district, fearing an Establishment Clause violation, asked him to stop. The Court, in a 6-3 decision, ruled in favor of the coach. It held that his actions were private speech, protected by the Free Exercise and Free Speech Clauses, and that the school district’s concerns about endorsement were unfounded.

The ruling was momentous not just for its outcome, but because the Court used it to formally abandon the 50-year-old Lemon test. In its place, the Court instituted a new standard for Establishment Clause cases based on “historical practices and understandings.”

The full implications of this shift to a “history and tradition” test are still unfolding, but it has emboldened efforts at the state level to infuse more religion into public education.

Since 2023, numerous states have seen legislative proposals to require posting the Ten Commandments in every classroom, a practice the Supreme Court found unconstitutional in Stone v. Graham (1980) under the Lemon test.

Other measures include allowing religious chaplains to serve as school counselors and setting aside time for prayer during the school day.

A new frontier involves curriculum content and parental rights. In Mahmoud v. Taylor (2025), parents challenged a school district’s policy that introduced LGBTQ+-inclusive storybooks and denied parents the ability to opt their children out of instruction involving these books.

The parents argued this policy violated their Free Exercise right to direct their children’s religious upbringing. The Supreme Court sided with the parents, holding that the no-opt-out policy imposed a substantial burden on their religious exercise by forcing their children into an environment with messages “contrary to the religious principles” they wished to instill.

This case highlights a shift from conflicts over religious acts like prayer to conflicts over exposure to ideas in the classroom, pitting parental religious freedom against the state’s educational mission.

Religious Symbols on Public Property

The Supreme Court’s jurisprudence on religious displays on public property is notoriously fact-specific and has produced what many observers see as confusing and inconsistent rulings. There is no single, clear test; instead, constitutionality often hinges on specific physical setting, history, and context.

The Court’s modern analysis began with two key 1980s cases. In Lynch v. Donnelly (1984), the Court upheld a city-sponsored Christmas display that included a nativity scene. It reasoned that because the creche was part of a larger display with many secular symbols—Santa Claus house, reindeer, and “Seasons Greetings” banner—a reasonable observer would not see it as government endorsement of Christianity but as recognition of a national holiday’s historical origins.

Five years later, in County of Allegheny v. ACLU (1989), the Court reached the opposite conclusion. It struck down a nativity scene displayed alone in the grand staircase of a county courthouse, finding that its prominent placement, without secular context, amounted to impermissible government endorsement of a purely religious message.

This focus on context was further highlighted in two Ten Commandments cases decided on the same day in 2005. In Van Orden v. Perry, the Court upheld a six-foot-tall Ten Commandments monument on the Texas State Capitol grounds.

The monument had been donated by a civic group and had stood for 40 years among 17 other monuments and 21 historical markers celebrating Texas history. The Court found that in this context, the monument had dual secular and religious significance.

In contrast, in McCreary County v. ACLU, the Court struck down displays of the Ten Commandments recently posted in two Kentucky courthouses. The Court found that the displays’ history revealed a predominantly religious purpose, making them an unconstitutional government endorsement of religion.

More recently, in American Legion v. American Humanist Association (2019), the Court upheld a large cross-shaped war memorial on public land, suggesting that “passage of time” can give a religious symbol historical significance and create a “strong presumption of constitutionality.”

Public Funds for Faith-Based Organizations

The debate over government funding for faith-based social service providers has undergone dramatic legal transformation. For decades, the central question was whether the Establishment Clause permitted such funding.

Today, the central question is often whether the Free Exercise Clause requires inclusion of religious organizations in generally available funding programs.

The Supreme Court has consistently distinguished between “direct aid” (money given directly from government to a religious institution) and “indirect aid” (money, such as vouchers or scholarships, given to private citizens who then choose to spend it at religious institutions).

The Court has been far more permissive of indirect aid programs, viewing them as the result of private choice, not government endorsement.

A series of recent Supreme Court decisions has established a powerful “no-exclusion” principle under the Free Exercise Clause.

In Trinity Lutheran Church v. Comer (2017), the Court ruled that Missouri could not deny a church a grant to resurface its preschool playground simply because it was a church.

In Espinoza v. Montana Department of Revenue (2020), the Court held that a state could not exclude religious schools from a tax-credit scholarship program.

In Carson v. Makin (2022), the Court ruled that Maine, which provided tuition assistance for students in towns without public high schools, could not disqualify schools from the program simply because they were religious and would use funds for religious instruction.

The Court stated that conditioning a public benefit on an entity’s “status” as religious is unconstitutional discrimination.

A related and highly contentious issue is whether faith-based organizations that receive government funds can maintain their right to hire employees based on religion.

Federal laws like Title VII and the Religious Freedom Restoration Act often provide exemptions that allow these organizations to engage in religious-based hiring, even when using taxpayer money. This creates conflict between religious freedom and civil rights protections against employment discrimination.

Free Exercise vs. Civil Rights

Perhaps the most prominent and emotionally charged church-state conflict today involves the clash between First Amendment free exercise rights of business owners and the right of LGBTQ+ individuals to be free from discrimination in public accommodations.

This conflict has been the subject of a trilogy of recent Supreme Court cases.

The first was Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018). The case involved Jack Phillips, a baker who, based on sincere religious beliefs, refused to create a custom wedding cake for a same-sex couple.

The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The Supreme Court reversed the commission’s decision in a 7-2 vote, but on very narrow grounds.

The Court did not decide the broad constitutional question of whether Phillips had a right to an exemption. Instead, it found that the commission’s proceedings had exhibited “impermissible hostility” toward Phillips’s religious beliefs, with one commissioner comparing his beliefs to defenses of slavery and the Holocaust.

This failure to act with religious neutrality violated the Free Exercise Clause.

The second case was Fulton v. City of Philadelphia (2021). The city had stopped referring foster children to Catholic Social Services because the agency, based on its religious beliefs about marriage, would not certify same-sex couples as foster parents.

The Supreme Court ruled unanimously in favor of CSS. Again, the ruling was narrow. The Court found that the city’s non-discrimination requirement was not a “neutral law of general applicability” because the contract allowed a city official to grant exceptions for other reasons at their “sole discretion.”

Because the city had a system for individualized exemptions, the Court reasoned, it could not refuse to grant one for religious hardship without a compelling reason. The Court explicitly declined to overrule Employment Division v. Smith.

The third case, 303 Creative LLC v. Elenis (2023), was decided on free speech grounds rather than free exercise. The Court ruled that a Colorado web designer who wanted to create wedding websites could not be compelled by the state’s anti-discrimination law to create websites for same-sex weddings, as doing so would be compelled speech that violated her religious convictions.

While each ruling was technically narrow, their collective effect is significant. The Court has demonstrated a clear willingness to find ways to rule in favor of religious objectors to anti-discrimination laws.

This incremental approach, finding case-specific “off-ramps” to avoid overturning major precedents, has the effect of gradually expanding religious protections while creating substantial uncertainty for the future of LGBTQ+ civil rights.

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