Originalism is a legal philosophy that interprets the Constitution based on the original understanding "at the time it was adopted." This approach influences how courts interpret laws related to fundamental rights, including the free exercise of religion. In an era of increasing religious diversity and legal challenges, the intersection of originalism and religious liberty remains a critical area of constitutional debate. This article explores the foundations of originalism, its application to the Free Exercise Clause, and its real-world impact on religious freedom in the United States.

Understanding Originalism

Originalism holds that the Constitution should be understood according to the original meaning of its text at the time of ratification. Advocates argue that this method preserves the rule of law, anchors judicial decision-making in democratic legitimacy, and prevents judges from imposing personal values on legal interpretations. The philosophy has evolved into two main schools: original intent, which focuses on what the framers themselves intended, and original public meaning, which examines how a reasonable person at the time would have understood the text. Original public meaning, championed by the late Justice Antonin Scalia, is the more dominant modern variant.

Proponents such as Justice Clarence Thomas and Judge Robert Bork contend that originalism aligns judicial authority with constitutional text, reducing judicial activism. Critics, however, argue that originalism can be rigid, impossible to apply to modern contexts (e.g., digital surveillance), and may mask subjective choices about which historical sources to prioritize. Despite these critiques, originalism has shaped major Supreme Court rulings on gun rights, free speech, and religious liberty. As of 2025, a majority of Supreme Court justices subscribe to some form of originalism or textualism, making it a dominant methodology in federal jurisprudence.

For further reading on originalist theory, see the National Constitution Center's overview of originalism.

The Free Exercise Clause

The First Amendment to the U.S. Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The Free Exercise Clause protects individuals from government interference in religious beliefs and, to varying degrees, religious practices. Originally applied only to the federal government, the Supreme Court has incorporated this clause through the Fourteenth Amendment's Due Process Clause, applying it to state and local governments since Cantwell v. Connecticut (1940).

Originalists emphasize that the clause was part of a broader set of First Amendment protections designed to limit federal power over conscience and worship. They look to the historical context of the 1791 Bill of Rights, including concerns about a national religion and the persecution of dissenting sects in state establishments. This historical lens informs their approach to modern disputes, from prayer in schools to religious exemptions from generally applicable laws.

Text and Structure of the Clause

The Free Exercise Clause is paired with the Establishment Clause, creating what the Supreme Court has called a "zone of protection" for religion. Originalists often argue that the framers intended a dual aim: to prevent government from coercing religious practice (free exercise) and from favoring one religion over another (establishment). However, the original meaning of "free exercise" did not guarantee an absolute right to act on every religious impulse. As early as 1879 in Reynolds v. United States, the Court upheld the criminalization of polygamy, reasoning that while belief is absolute, actions that violate social duties or subvert good order may be regulated.

Historical Context of Free Exercise

To understand the original meaning of the Free Exercise Clause, originalists examine the colonial and founding-era experiences with religious liberty. Many colonies had established churches, and dissenting groups like Baptists, Quakers, and Catholics faced legal penalties, including fines, imprisonment, and disqualification from office. The Great Awakening of the 1730s–1740s intensified calls for religious toleration, while the Virginia Statute for Religious Freedom (1786), drafted by Thomas Jefferson and championed by James Madison, became a model for the First Amendment.

At the time of ratification, several state constitutions included protections for religious exercise, but they also permitted limits that protected public peace and order. For instance, the 1780 Massachusetts Constitution guaranteed the right to worship God "in the manner most agreeable to the dictates of his own conscience" but also authorized towns to fund Protestant churches. Originalists argue that the framers’ intent was to prevent a national church and to protect the free exercise of religion from federal interference, not to create a broad exemption from neutral laws of general applicability. This nuanced historical backdrop continues to inform legal debates over the scope of religious exemptions.

The Incorporation Debate

Originalists are divided on whether the Free Exercise Clause was meant to apply to states through the Fourteenth Amendment. Some, like Justice Thomas, argue that the Privileges or Immunities Clause better protects religious liberty against state action than the Due Process Clause. Others maintain that the original understanding of the Bill of Rights was exclusively federal. Nevertheless, incorporation is now settled precedent. In Cantwell v. Connecticut, the Court held that the Free Exercise Clause is "made applicable to the states by the Fourteenth Amendment." Originalist justices today often accept this incorporation but may apply a different analytical framework than their more progressive colleagues.

Originalism has profoundly influenced the Supreme Court's free exercise rulings, especially since the 1990s. A key turning point was Employment Division v. Smith (1990), in which Justice Scalia, writing for the majority, held that neutral, generally applicable laws do not violate the Free Exercise Clause even if they incidentally burden religious practices. This decision effectively replaced the stricter "compelling interest" test from Sherbert v. Verner (1963) with a far more deferential standard.

Scalia's originalist reasoning in Smith emphasized that the framers intended free exercise to prohibit laws targeting religion, not to grant religious exemptions from every regulation. He pointed to the historical permissibility of laws banning bigamy or requiring vaccinations. The decision drew sharp criticism from religious liberty advocates, leading to the federal Religious Freedom Restoration Act (RFRA) of 1993, which restored the compelling interest test for federal laws. Many states followed with their own RFRAs.

Key Case Examples

  • Employment Division v. Smith (1990): The Court held that Oregon could deny unemployment benefits to Native American employees fired for using peyote in religious ceremonies, because the state's drug law was neutral and generally applicable. Scalia's opinion rejected a categorical right to religious exemptions.
  • Burwell v. Hobby Lobby Stores, Inc. (2014): The Court applied RFRA to protect closely held corporations from providing contraception coverage that violated the owners' religious beliefs. Justice Alito's majority opinion used statutory interpretation but reflected originalist deference to historical religious exemptions.
  • Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018): The Court overturned a state ruling against a baker who refused to make a wedding cake for a same-sex couple, citing anti-religious bias by the commission. Justice Kennedy's opinion avoided broad constitutional questions but emphasized that the government must remain neutral toward religion—a principle consistent with originalist concerns about targeting religious actors.
  • Fulton v. City of Philadelphia (2021): The Court unanimously held that Philadelphia violated a Catholic foster care agency's free exercise rights by requiring it to certify same-sex couples, because the city's contract allowed individualized exemptions. The decision declined to overrule Smith, but the concurrence by Justices Barrett, Kavanaugh, and Thomas signaled interest in revisiting the issue on originalist grounds.
  • Kennedy v. Bremerton School District (2022): The Court ruled that a public high school football coach's private prayers after games were protected under the Free Exercise and Free Speech Clauses. Justice Gorsuch's majority opinion emphasized that the original meaning of the First Amendment protects religious expression from coercion and hostility.

For an in-depth analysis of these cases, see the Supreme Court's opinion in Kennedy v. Bremerton and the Smith decision.

The Role of Precedent

Originalists face a tension: should they follow the original meaning, even if it contradicts precedent? In free exercise cases, justices like Thomas and Gorsuch have questioned Smith's consistency with the original understanding, while others like Justice Kagan argue that Smith has been relied upon for decades. The Supreme Court's recent denials of certiorari in cases seeking to overturn Smith suggest a cautious approach, but the issue remains alive. Some scholars advocate for an originalist reformation of free exercise doctrine—returning to a standard that protects religious conduct as a fundamental right subject to strict scrutiny unless the government can show a compelling interest and narrow tailoring.

Impact on Religious Freedom Today

Applying originalist principles directly influences court rulings on a wide range of contemporary religious liberty issues: workplace accommodations, school prayer, vaccine mandates, religious use of controlled substances, and objections to LGBTQ+ anti-discrimination laws. Originalist justices tend to favor religious claimants when laws explicitly target religion or when discretionary exemptions create disparate treatment. They are more skeptical of claims that demand broad exemptions from neutral laws of general applicability—except when a statute like RFRA compels such exemptions.

Religious Exemptions and Public Accommodations

One of the most volatile areas involves conflicts between religious liberty and anti-discrimination laws. Originalists often argue that the Free Exercise Clause's original meaning protects religious objectors from being forced to participate in ceremonies or provide services that violate their beliefs, as long as the government can achieve its goal through less restrictive means. In 303 Creative LLC v. Elenis (2023), the Court ruled that a web designer could refuse to create wedding websites for same-sex couples, resting on free speech grounds but reinforcing the idea that the First Amendment protects religiously motivated expression. Critics contend that such rulings undermine civil rights protections.

More Religious Contexts

Originalism also shapes the debate over religion in public life. The Court's 2022 decision in Kennedy v. Bremerton signaled a louder acceptance of privately initiated religious speech in public schools, a departure from the more secularizing approach of the late 20th century. Justice Gorsuch's analysis drew heavily on historical practices, noting that "the First Amendment's Establishment Clause does not include a right to be free from any religious expression." Meanwhile, in cases involving prison religious accommodations or the use of hallucinogens in indigenous ceremonies, originalist judges often demand a more searching inquiry into whether a law actually burdens a sincerely held religious belief and whether the government has a compelling reason.

State-Level Developments

Because originalism affects federal constitutional interpretation, its influence extends to state courts and legislatures. Many state constitutions have their own free exercise clauses, often mirroring the First Amendment but sometimes providing even stronger protections. As originalist doctrines shift at the Supreme Court, state courts may develop divergent frameworks. For example, the Oregon Supreme Court, after Smith, interpreted its state constitution to offer greater protections for religious use of peyote. This patchwork creates complexity for businesses and individuals operating in multiple states.

Critiques and Counterarguments

Originalism is not without its detractors, especially in the context of free exercise. Critics raise several points:

  • Historical uncertainty: The original meaning of "free exercise" is disputed among historians. Some argue that the framers intended broad accommodations for religious practices, while others point to the prevalence of laws restricting certain religious acts like blasphemy or Sabbath-breaking.
  • Inability to adapt: Modern challenges—such as religious objections to assisted reproductive technologies, transgender rights, or digital commerce—were unforeseeable in 1791. Critics argue that originalism risks freezing constitutional protections in an anachronistic context.
  • Selective originalism: Opponents contend that originalist justices sometimes pick and choose historical evidence to support preferred outcomes, undermining the doctrine's claim to neutrality.
  • Erosion of precedent: A strict originalist approach would require overruling decades of precedent, including Sherbert and Smith itself, which could destabilize settled expectations.

Nevertheless, originalists respond that the Constitution's very purpose is to limit transient majorities and that historical meaning provides a more objective standard than evolving societal values. For a balanced critique of originalism, see this analysis from the University of Chicago Law Review.

Conclusion

Originalism offers a powerful and controversial framework for understanding and defending the free exercise of religion within the constitutional context. By insisting that courts adhere to the meaning of the text at the time of its adoption, originalists aim to protect religious liberty from judicial overreach while respecting democratic legislative choices. However, the practical application of originalism to free exercise cases remains deeply contested: Does original meaning mandate strict protections for religious exemptions or allow broad governmental authority over religious conduct? The Supreme Court's recent trajectory suggests a growing sympathy for religious claimants—especially when they face hostility or discriminatory treatment—while leaving room for states to balance competing interests through statutory accommodations.

As society continues to evolve, ongoing debates about the original meaning of the Free Exercise Clause will shape the contours of religious freedom in America. Whether originalism ultimately expands or contracts religious liberty depends on how the justices reconstruct the framers' world and apply it to a 21st-century pluralistic society. What remains clear is that the originalist methodology will continue to be a central lens through which courts adjudicate the timeless tension between individual conscience and the common good.