Eleanor Finch
The COVID-19 pandemic has raised questions about the role of churches and the state's ability to restrict their operations. While some argue that churches are essential services that should remain open, others believe they are non-essential and subject to closure like other non-essential businesses. This debate has sparked discussions about the constitutionality of closing churches, with some arguing that it violates religious liberty and the separation of church and state. The First Amendment of the US Constitution protects religious freedom and prohibits government interference in religious practice, but it does not explicitly address the closure of religious institutions. Ultimately, the legality of closing churches depends on various factors, including state and federal laws, the specific circumstances, and judicial interpretations of constitutional rights.
| Characteristics | Values |
|---|---|
| Separation of church and state | Varies from total separation, mandated by the country's political constitution, to a state religion |
| US Constitution | The First Amendment's "establishment clause" prohibits the government from establishing or endorsing any particular religion or promoting religion over non-religion |
| US Constitution | The First Amendment's "free exercise clause" protects the right to practice one's religion freely, without government interference |
| US Supreme Court | Neutral laws of general applicability must be followed by churches, but these do not target religious practice |
| US Supreme Court | In 2022, the court allowed two Christian families to challenge Maine's tuition-assistance program that excluded private religious schools |
| US Supreme Court | In 2020, it endorsed Montana tax credits that helped pay for students to attend private religious schools |
| US Supreme Court | In 2017, the court ruled for Trinity Lutheran Church of Columbia, Missouri, declaring that churches and other religious entities cannot be denied public aid based on their religious status |
| US Supreme Court | In 2025, the court blocked an attempt to establish a taxpayer-funded religious charter school in Oklahoma |
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What You'll Learn
The 'Establishment Clause'
The Establishment Clause, part of the First Amendment to the United States Constitution, prohibits the government from making any law "respecting an establishment of religion". This clause not only forbids the government from establishing an official religion but also prohibits government actions that unduly favour one religion over another or religion over non-religion. The Establishment Clause acts as a double security, prohibiting both control of the government by religion and political control of religion by the government.
The Establishment Clause addressed the concerns of members of minority faiths who did not want the federal government to establish a state religion for the entire nation. For example, the Baptists in Virginia had suffered discrimination prior to the state's disestablishment of the Anglican Church in 1786. As Virginia prepared to hold elections in 1788, the Baptists were concerned that the Constitution had no safeguard against the creation of a new national church.
The Establishment Clause is complemented by the Free Exercise Clause, which protects citizens' right to practice their religion without government interference, so long as the practice does not conflict with "public morals" or a "compelling" government interest. The two clauses sometimes come into conflict, in which case the federal courts help to resolve such conflicts, with the Supreme Court being the ultimate arbiter.
In May 2025, the US Supreme Court blocked an attempt to establish the nation's first taxpayer-funded religious charter school in Oklahoma, citing the constitutional separation of church and state. The ruling left intact a lower court's decision that the proposed school would violate the US Constitution's First Amendment limits on government involvement in religion.
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The 'Free Exercise Clause'
The Free Exercise Clause is one of two provisions concerning religion in the First Amendment to the US Constitution. The other is the Establishment Clause. The Free Exercise Clause protects citizens' right to practice their religion freely, without government interference. This includes the right to practice any religious belief and engage in religious rituals of their choosing. The Clause protects religious beliefs and some actions made on behalf of those beliefs, as long as they do not conflict with 'public morals' or a 'compelling' governmental interest.
The Free Exercise Clause was enshrined in American law in 1791, with the First Amendment to the Constitution. The roots of religious liberty stretch back to the early settlers who fled religious persecution in Europe, seeking a new world where they could follow their faith without interference from the government. The Free Exercise Clause reserves the right of individuals to practice their religion as they please, without government interference, and without establishing a religion.
The precise definition of "establishment" is unclear, but it has historically meant prohibiting state-sponsored churches, such as the Church of England. Today, what constitutes an "establishment of religion" is often governed by the three-part test set forth by the US Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under the "Lemon" test, the government can assist religion only if the primary purpose of the assistance is secular, the assistance neither promotes nor inhibits religion, and there is no excessive entanglement between church and state.
The Free Exercise Clause has been applied broadly and narrowly at different times. The First Amendment initially applied only to the US Congress, so state and local governments could abridge the Free Exercise Clause if there was no similar provision in the state constitution. However, in 1940, the Supreme Court held in Cantwell v. Connecticut that the Free Exercise Clause is enforceable against state and local governments. This conclusion was reached by applying the Fourteenth Amendment's due process clause, which prevents any state from denying a person their rights without following laws and fair procedures.
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Religious liberty
The US Constitution's First Amendment includes the "establishment clause" and the "free exercise clause". The former prohibits the government from establishing or endorsing any particular religion or promoting religion over non-religion. The latter protects the right to practice one's religion freely, without government interference. These clauses are at the core of the debate surrounding religious liberty in the US.
The principle of religious liberty is deeply rooted in American history. The early settlers fled religious persecution in Europe, seeking a new world where they could choose, follow, and practice their faith without interference from the government. This principle was enshrined in American law with the First Amendment to the Constitution in 1791.
However, the interpretation and application of these clauses have been a subject of debate and legal challenges. For example, in 2025, the US Supreme Court blocked an attempt to establish the nation's first taxpayer-funded religious charter school, St. Isidore of Seville Catholic Virtual School, in Oklahoma. The Court's 4-4 split decision upheld a lower court's ruling that the school would violate the First Amendment's limits on government involvement in religion.
On the other hand, the Supreme Court has also issued rulings that protect religious liberty. In 2022, the Court ruled in favour of two Christian families who challenged Maine's tuition-assistance program that excluded private religious schools. In 2020, it endorsed Montana tax credits that helped students attend private religious schools. In 2017, the Court ruled for Trinity Lutheran Church of Columbia, Missouri, declaring that churches cannot be denied public aid based solely on their religious status.
The COVID-19 pandemic also brought the issue of religious liberty to the forefront, with debates surrounding the closure of churches and religious gatherings. While some states included religious services as "essential gatherings", others did not mandate their closure but instead issued health alerts and recommendations for safe worship practices. The question of whether houses of worship are essential services highlighted the tension between government officials and religious leaders, with each side interpreting the Constitution differently.
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Religious discrimination
The US Constitution's First Amendment includes the "establishment clause", which prohibits the government from establishing or endorsing any particular religion or promoting religion over non-religion. The "free exercise clause" protects the right to practice one's religion freely, without government interference.
The US Supreme Court has upheld these principles in several cases. For example, in 2022, the court sided with two Christian families who challenged Maine's tuition-assistance program that excluded private religious schools. In 2020, it endorsed Montana tax credits that helped students attend private religious schools. In 2017, the court ruled for Trinity Lutheran Church of Columbia, Missouri, declaring that churches and other religious entities cannot be denied public aid based on their religious status.
However, the Supreme Court has also blocked attempts to establish religious charter schools, citing concerns about religious discrimination and the separation of church and state. In May 2025, the court blocked an attempt by two Catholic dioceses to establish a taxpayer-funded religious charter school in Oklahoma, finding that it would violate the First Amendment's limits on government involvement in religion.
During the COVID-19 pandemic, the question of whether houses of worship are essential services arose. While some government officials said they were not, religious leaders and some states disagreed. For example, Illinois, Indiana, and Michigan referred to religious services as "essential gatherings" and allowed them with safety recommendations.
In conclusion, while the US Constitution protects religious freedom and prohibits religious discrimination, the government can enforce neutral laws that apply to everyone, including churches. The line between these principles is sometimes blurry, as seen in the debates around religious charter schools and COVID-19 restrictions.
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Religious charter schools
The US Supreme Court recently blocked an attempt to establish the nation's first taxpayer-funded religious charter school in Oklahoma. The 4-4 ruling upheld a lower court's decision that blocked the establishment of St. Isidore of Seville Catholic Virtual School, which would have been a K-12 online school with a mission to evangelize its students in the Catholic faith. The lower court found that the proposed school would violate the US Constitution's First Amendment limits on government involvement in religion, specifically the "establishment clause," which prohibits the government from establishing or endorsing any religion.
The case highlighted the tension between the two religion clauses of the First Amendment: the "establishment clause" and the "free exercise clause." The former prohibits the government from endorsing or establishing any particular religion, while the latter protects the right to practice one's religion without government interference. The decision was praised by advocates for the separation of church and state, who viewed the proposed school as a violation of the First Amendment. However, proponents of publicly funded religious charter schools expressed disappointment and noted that the issue was not fully resolved, as the Supreme Court's decision did not set a precedent.
Charter schools are considered public schools in Oklahoma and the 45 other states and the District of Columbia where they operate. They are typically run by independent boards, receive state funding, and are free and open to all students. While they must abide by anti-discrimination laws and curriculum oversight, they often feature small class sizes and innovative teaching styles. The effort to establish St. Isidore was part of a broader trend in conservative-led states to insert religion into public schools, including requiring the posting of the Ten Commandments in classrooms and placing Bibles in classrooms.
The proposed St. Isidore school was supported by Oklahoma's Republican governor, Kevin Stitt, and opposed by the state's Democratic representatives. Opponents argued that religious charter schools would force taxpayers to support religious indoctrination and could undermine non-discrimination principles. Proponents of the school pointed to the benefits of educational choice and argued that the decision limited educational freedom. While the specific issue of religious charter schools remains unresolved nationally, the Supreme Court's ruling in this case affirmed the importance of the separation of church and state and the limits on government involvement in religion.
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Frequently asked questions
The US Constitution protects religious liberty, and the First Amendment includes the "free exercise" clause, which protects the right to practice one's religion without government interference. However, the government can enforce "neutral laws of general applicability" on churches, meaning that churches must follow laws that apply to everyone, such as restrictions on large gatherings during a pandemic. Therefore, while the government cannot close churches for religious reasons, they can enforce public health and safety laws that may require churches to close temporarily.
The Establishment Clause is part of the First Amendment to the US Constitution. It prohibits the government from establishing or endorsing any particular religion or promoting religion over non-religion. This clause upholds the separation of church and state and ensures religious neutrality in government affairs.
The concept of separating church and state has a long history, dating back to ancient times when state and religion were closely associated. The idea of "Soul Liberty" was coined by English philosopher John Locke in 1636, and he advocated for the separation of church and state. This principle was further developed by Roger Williams, who shaped the church-state debate in England and influenced the framers of the US Constitution. The separation of church and state was not included in the original US Constitution but was later added through the First Amendment in 1791.
