Constitutional liberties best endure when we understand the history and values that sustain them. As we discussed in the first article of this three-part series, leaders of The Church of Jesus Christ of Latter-day Saints have long emphasized the importance of religious freedom for all. Most recently, in a video released for a fifth Sunday lesson in May 2026, President D. Todd Christofferson and Elder Quentin L. Cook invited millions of church members to promote the Constitution’s underlying principles, including religious freedom. President Christofferson said that becoming informed is a good place to start so that we can “speak out of intelligent understanding and not just ignorance and emotion.”
To support this invitation, in this second article of the series, we will discuss the history of religious freedom in the United States and the constitutional protections that grew out of that history. In doing so, we will be guided by President Dallin H. Oaks’s invitation to lovingly and respectfully “walk shoulder to shoulder along the path of religious freedom for all, while still exercising that freedom to pursue our distinctive beliefs.”
Brief History of Religious Freedom
To fully understand our responsibilities today, we need to understand how our modern concept of religious liberty has evolved. For much of recorded history, there simply was no concept of religious freedom. Many societies pursued religious homogeneity in quest of social cohesion. As the Israelites’ entrance into the land of Canaan makes clear, distinctive religious beliefs were seen as an existential threat. For example, in Exodus 23:31-33 the Lord says,
And I will set thy bounds from the Red sea even unto the sea of the Philistines, and from the desert unto the river: for I will deliver the inhabitants of the land into your hand; and thou shalt drive them out before thee. Thou shalt make no covenant with them, nor with their gods. They shall not dwell in thy land, lest they make thee sin against me: for if thou serve their gods, it will surely be a snare unto thee.
To maintain religious homogeneity, monarchs typically imposed their own religious views on their subjects. However, a notable exception was the period of the Pax Romana, when the Romans allowed conquered subjects to continue worshipping their gods. Since Roman rule allowed a multiplicity of beliefs, Christ’s apostles could preach the gospel after His death throughout much of the Roman world. Though often facing significant persecution, Early Christians used this nascent religious freedom to spread across much of Europe and into parts of Africa and the Middle East.
Later, as Christianity swept the Roman world, it eventually coalesced into a single church following the Council of Nicaea in AD 325. Then, in AD 380, the Edict of Thessalonica made Nicene Christianity the official state religion of the Roman Empire, and with it, the ancient practice of requiring adherence to the ruler’s religion resumed. Splinter groups were labeled heretics, suppressed, and often punished. In AD 1054, the Christian church itself splintered into the Roman Catholic Church in the West and the Eastern Orthodox Church in the East. During this medieval period, monarchs in the West often ruled by consent of and coronation by Rome and frequently required their citizens—legally and socially—to be baptized as Roman Catholics. Authorities viewed nonbelievers as a threat to public order. If discovered, they could be convicted as heretics and even burned at the stake.
The quest for homogeneity finally ruptured in 1517 when Martin Luther launched the Protestant Reformation in Germany. Other Protestant groups soon formed throughout Europe. Most famously, King Henry VIII split with the Roman Catholic Church in 1534. But even in this quest for additional religious liberty, if a king adopted a Protestant tradition, his subjects were obliged to do the same.
The legal principle governing required religious adherence in Western Europe was termed Cuius regio, eius religio, meaning “Whose realm, his religion.” This principle was formally codified by the Peace of Augsburg in 1555. It gave rulers the legal right to dictate the religion of their realm. Those who did not agree with their sovereign’s religious preference were required to sell their property and immigrate to another territory that aligned with their religious beliefs.
The drafters of the Constitution purposely named religious freedom as the first freedom of the Bill of Rights.
This principle was vigorously enforced in England by King Henry’s successor, Queen Elizabeth I. At the outset of her reign, the English Act of Supremacy in 1559 required all public officials to swear an oath of loyalty to the Church of England or face immediate loss of office, property, and, upon conviction for a third offense, death on charges of high treason. The English Act of Uniformity, passed in the same year, similarly sought to enforce religious uniformity by requiring all churches to use the Book of Common Prayer and requiring citizens to attend church meetings on Sundays and holy days, while prohibiting Catholic Mass or other gatherings by non-sanctioned religions. The law imposed significant fines and imprisonment on those violating these laws. Those with strong minority views, such as Puritans, Separatists, Baptists, and Quakers, were often imprisoned.
Later acts of Parliament specified that repeated offenses would be considered high treason and authorized offenders to be executed. As a result, a group of these Separatists, now known as the Pilgrims, left for Holland to escape these persecutions and then famously immigrated to the New World in 1620. Their search for religious freedom in America is one of the most important founding stories of our nation. However, the Pilgrims would later repeat the pattern of religious intolerance when they punished and even banished dissenters from their faith. In response, the colonies of Rhode Island, New York, and Maryland adopted policies to welcome many of these outcasts.
During this colonial period, people with diverse religious preferences continued to arrive in the New World. Within a relatively short time, the original Thirteen Colonies were populated by many people with differing religious allegiances. When the Declaration of Independence was signed in 1776, the United States had become a unique, religiously pluralistic country with no single dominant sect.
To protect this religious diversity, the drafters of the Constitution purposely included religious freedom as the first freedom mentioned in the Bill of Rights: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The two parts of this protection, often called the Establishment Clause and the Free Exercise Clause, inaugurated a revolutionary experiment that rejected the assumption that social cohesion could only be fostered by religious uniformity. Instead, the Constitution adopted what was then a radical idea: deep loyalty and social stability could be fostered by protecting everyone’s religious beliefs. This principle was summarized by President Oaks, who said, “The key to stability and harmony is not homogeneity in religious or other foundational beliefs, but shared assurance that everyone will be secure in following his or her foundational beliefs.”
Now, after 250 years of experience, the once-radical idea of a government that protects diverse religious beliefs is widely accepted across much of the world. This principle was made explicit in 1948 when the United Nations General Assembly adopted the Universal Declaration of Human Rights. Article 18 of that Declaration states:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
This strong, yet aspirational, statement of religious freedom has become a widely recognized international human-rights norm. Even some states and religions that originally questioned religious diversity have come to champion religious liberty. For example, the Roman Catholic Church reversed centuries of teachings promoting religious homogeneity in 1965 when it published Dignitatis Humanae. It declares that religious freedom is a civil right directly rooted in the God-given dignity of the human person and that this right protects everyone from being coerced in religious matters.
Our nation continues to promote religious freedom worldwide. Under the provisions of the International Religious Freedom Act of 1998, the U.S. government carefully monitors religious freedom in every country and annually publishes its findings. Under this Act, the world’s worst violators of international religious freedom norms are designated as “Countries of Particular Concern,” and the President is then authorized to impose diplomatic or economic actions intended to encourage greater religious freedom for their people. Thus, our nation’s foreign policy is directly tied to the degree to which each country upholds the modern principle of religious freedom.
In sum, the long history of religious intolerance and forced homogeneity in Europe led to America’s pluralistic understanding of religious freedom, first explicitly recognized in the Bill of Rights. Religious pluralism contributed directly to the Restoration of the Gospel of Jesus Christ in the United States, as well as the protection of countless believers of other faiths. This is undoubtedly a significant reason why President Oaks has called our Constitution “this nation’s most important export.” As the Lord stated in Doctrine and Covenants 98:5, “that principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before me.”
Constitutional Protections of Religious Freedom
Although the ideal of religious freedom for all was established at our nation’s founding, 250 years later, we are still working to fully realize this constitutional right. Both parts of our “first freedom”—the prohibition on an established religion and the promise of the free exercise of religion—have been the subject of numerous Supreme Court decisions that have tested the meaning of those protections. A brief summary of some notable decisions follows.
Establishment Clause Protections
As originally written, the Establishment Clause was unquestionably intended to prohibit a federally established religion while still allowing state-established churches. Remarkable as it may seem today, many states had established churches during the founding era of our country. In fact, it was not until 1833 that Massachusetts became the last state to disestablish its state church.
The Supreme Court seems poised to relax separation of church and state under the Establishment Clause.
Based on this understanding, an intrepid Supreme Court seemed to embark on the project of expelling religious influence from government. In the landmark 1962 case Engel v. Vitale, the Supreme Court interpreted the Establishment Clause to forbid government-prescribed prayers. A year later, in Abington School District v. Schempp, the Supreme Court banned devotional Bible reading, a mainstay of public schools since the early 19th Century and the primary textbook of the earliest colonial schools.
In subsequent years, the Supreme Court developed the so-called Lemon test to analyze whether a government action improperly breached the wall of separation between church and state. This test asked if government action had a primarily secular purpose that did not advance (or inhibit) religion, and whether the action avoided entanglement with or endorsement of religion. Since religious expressions are not typically secular and can often be seen as advancing religious sentiments, few religiously motivated expressions could pass this test. As a result, many religious symbols and actions were challenged, such as Christmas nativities and displays of the Ten Commandments on government property. However, despite the Lemon test’s built-in bias, the Supreme Court stopped short of all its implications. It refused, for example, to bar prayer before legislative sessions, and it sidestepped the question whether our nation’s motto, “In God We Trust,” or the statement “under God” in the Pledge of Allegiance violates the Establishment Clause.
In recent years, the tide seems to have turned. In 2022, the Supreme Court announced in Kennedy v. Bremerton School District that it would no longer use the Lemon test to determine when the so-called wall of separation had been breached. Instead, the Supreme Court announced it will now rely on the original meaning and history of the Establishment Clause and decide Establishment Clause cases based on the “historical practices and understandings” of the Founders. Since the Founders allowed numerous religious expressions by government, presumably this new approach will more generously allow religious expressions in government that fall short of establishing a religion.
Free Exercise Protections
The Free Exercise Clause has an equally volatile history. The Supreme Court’s first free exercise case was decided nearly 100 years after the Bill of Rights was adopted. In Reynolds v. United States, the Court ruled that the Free Exercise Clause only protects religious beliefs—not actions—when it refused to protect members of the Church from criminal prosecution for engaging in religiously motivated polygamy in the territory of Utah.
Then, 85 years later, the Supreme Court altered its approach. In the 1963 decision Sherbert v. Verner, the Court implicitly rejected its constrained view of the Free Exercise Clause originally adopted in Reynolds. The Court ruled that laws substantially burdening religious practices would be invalidated unless the government could show a “compelling interest” for its purpose and could prove it had used the “least restrictive means” possible to accomplish that purpose.
This “strict scrutiny” analysis was applied in free exercise cases for several decades until the Supreme Court abruptly changed course again. In 1990, in the infamous case Employment Division v. Smith, the Court announced that our nation could no longer “afford the luxury” of this heightened protection of religion. Instead, with some enumerated exceptions, the Court announced that “neutral and generally applicable laws” would be upheld even if they substantially burden religious practice. In other words, laws that unintentionally impede religious practice would generally be allowed because their burdens on religious people are simply the “unavoidable consequence of democratic government.”
This result was shocking. How could the free exercise of religion—the first freedom in our Bill of Rights—be so cavalierly discarded as a “luxury?” How could the Supreme Court say that religious minorities would have to depend on legislative protection instead of constitutional protection when the express point of the Bill of Rights was to protect against majoritarian rule?
Today the free exercise of religion is again subject to strict scrutiny protection under some combination of federal and state constitutions and laws.
The Supreme Court responded to RFRA by ruling that its strict scrutiny protections were unconstitutional as applied to state and local laws. State legislatures then mobilized in response. Nearly 30 states passed their own religious freedom restoration acts, and many state supreme courts began interpreting their state constitutions to provide strict scrutiny protection. Congress also doubled down by passing the Religious Land Use and Institutionalized Persons Act of 2000 to provide strict-scrutiny protections against both federal and state laws in land-use regulations and prisons.
Another irony of this situation should be noted. Not only did the Founders assume that majoritarian impulses would need to be checked by a Bill of Rights, but they also assumed each of the three branches of government would attempt to assume greater authority at the expense of the others. Yet in Smith and with RFRA, the judicial and legislative branches of the federal government attempted to pass authority over free exercise decisions to the other branch as though it were a hot potato.
Ultimately, the Supreme Court relented and assumed its traditional role as a protector of fundamental freedoms. In multiple decisions over the past two decades, the Court reinterpreted its notorious Smith decision by increasingly limiting what it considers to be a neutral and generally applicable law. If a law is not neutral—because the law targets religious practices—or if the law is not generally applicable—because the law allows for important exceptions in other contexts—then the general rule of Smith, which is not accommodating toward religion, will not apply. Since laws burdening religion are often neither fully neutral nor generally applicable, the unaccommodating standard in Smith is becoming increasingly rare in practice. As a result of the powerful responses to Smith in both case law and legislatures, today many (if not most) laws are again subject to strict scrutiny protection under some combination of the Free Exercise Clause, state constitutions, and federal or state statutes.
Yet the seeming equanimity between the judicial and legislative branches of government pertaining to religious freedom did not last long. The rise of LGBTQ rights has severely tested Congress’s commitment to protecting religious freedom, despite RFRA’s near-unanimous passage just a few decades earlier. Beginning with the question of same-sex marriage and continuing with protections of LGBTQ individuals in housing, employment, and public accommodations, free exercise rights began to be viewed by some as authorizing discrimination by religious individuals and religious organizations.
In the third and final part of this series, we will explore how the tension between religious freedom and LGBTQ protections has played out in society. In this national debate, we will also explore the prominent leadership role of The Church of Jesus Christ of Latter-day Saints in upholding the moral choices of others, including choices with which the Church may disagree. As we explore these topics, the responsibility of Latter-day Saints to simultaneously uphold religious freedom and fairness for all will come into stark focus.
Read the first article in this series, The Importance of Religious Freedom, here.
