Author ORCID Identifier
John Witte 0000-0001-8929-0267
Supreme Court, First Amendment, Religious freedom statutes, Doctrinal shifts, Religious coercion, Historical practices
The U.S. Supreme Court has entered decisively into a new fourth era of American religious freedom. In the first era, from 1776 to 1940, the Court largely left governance of religious freedom to the individual states and did little to enforce the First Amendment Religion Clauses. In the second era, from 1940 to 1990, the Court “incorporated” the First Amendment into the Fourteenth Amendment Due Process Clause and applied both a strong Free Exercise Clause and a strong Establishment Clause against federal, state, and local governments alike. In the third era, from the mid-1980s to 2010, the Court softened the review available under both Religion Clauses, allowing neutral laws of general applicability to pass First Amendment challenges even if they heavily burdened religion. But since the early 2010s, while the Court has maintained a weaker Establishment Clause, it has strengthened the Free Exercise Clause, the Free Speech Clause, and federal statutes applied to religion. The Court has held that some forms of government aid to religion and religious education are not only permissible under the Establishment Clause, but also required under the Free Exercise and Free Speech Clauses. The Court has used the Free Exercise Clause to strike down several public regulations and policies that discriminated against religion. It has strengthened both the constitutional and statutory claims of religious individuals and groups to gain exemptions from general laws that substantially burdened their conscience. The Court has used religious freedom statutes to give new protections to prisoners and has even allowed the collection of money damages from government officials who violated an individual’s statutory protections of religious freedom. Featuring a new emphasis on preserving history and tradition, protecting against religious coercion, and fostering religious equality rather than just state neutrality toward religion, these cases together make clear that the nation has entered decisively into a new fourth era of American religious freedom.
Hastings Law Journal
John Witte Jr. & Eric Wang, The New Fourth Era of Religious Freedom, 74 Hastings L.J. 1813 (2023).