Religious Liberty: Two Freedoms Wearing One Name

Religious liberty is having a moment. State legislatures are filing bills under that name this session, the Supreme Court has decided at least one religious liberty case in six consecutive terms, from Masterpiece Cakeshop in 2018 through Groff v. DeJoy and 303 Creative in 2023, and the phrase now shows up in foster care contracts, vaccine mandates, and wedding cake orders alike. Something real is happening, and I don't want to wave that away. But before getting into what's happening, I want to ask a plainer question, one that tends to get skipped in the coverage: which religious liberty are we actually talking about?

Because the phrase covers two different claims, and they don't always want the same thing.

A Right Built for the Powerless

The First Amendment's religion clauses were written for people without institutional power, not for institutions themselves. Congress shall make no law "respecting an establishment of religion, or prohibiting the free exercise thereof" — sixteen words, and nearly every major religious liberty case in American history traces back to one half of that sentence or the other. Roger Williams left Massachusetts Bay in 1636 because the colony had one approved church and no room for a dissenter's conscience. James Madison spent 1785 fighting a Virginia bill that would have taxed citizens to support "Teachers of the Christian Religion," and he won partly by arguing the state had no business deciding whose religion counted as respectable enough to fund. The people this amendment was built to protect were the ones outside the approved circle: Baptist preachers jailed for preaching without a license, Quakers refusing an oath, later Jehovah's Witnesses refusing to salute a flag. Religious liberty, in its founding shape, was a shield for the individual dissenter against both the state and whatever religious establishment the state preferred.

That is still one half of what the phrase means today. It is not the only half anymore.

The Machinery Behind the Phrase

Modern religious liberty law runs through a handful of cases most people have only met as a headline. In 1990, the Supreme Court decided Employment Division v. Smith, ruling that a neutral law of general application, in that case Oregon's drug law, doesn't violate the Free Exercise Clause just because it burdens someone's religious practice, even a sincere one like the peyote use at issue there. Congress disliked that outcome and answered with the Religious Freedom Restoration Act of 1993, instructing courts to apply strict scrutiny whenever a law substantially burdens religious exercise, meaning the government has to show a compelling interest and no less restrictive way to serve it.

Then in 1997, City of Boerne v. Flores held that Congress lacked the power under Section 5 of the Fourteenth Amendment to impose RFRA's strict-scrutiny standard on state and local governments. RFRA still binds federal agencies, not because Boerne affirmatively authorized that application, but because Congress's ordinary legislative authority over federal law was never in question, only its authority to bind the states. That's why states need their own version of the law today, and by one count more than twenty states have passed one.

RFRA's federal version has had an odd afterlife of its own, and it's worth sitting with for a moment. In Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal (2006), the Court used RFRA to let a small religious group import a tea containing a controlled substance for its ceremonies, a textbook individual-conscience case.

But in Burwell v. Hobby Lobby Stores (2014), the Court used the same statute to let a closely held, for-profit corporation opt out of the Affordable Care Act's contraceptive mandate on religious grounds. That's the moment the line I'm drawing gets genuinely blurry.

A corporation is not a lone dissenter without institutional power, but the Court treated its owners' conscience as though it were exactly that. Once a business can hold a conscience the way a person does, the distinction between a person asking for protection and an institution asking for protection stops being obvious and starts being a judgment call.

When the Liberty Belongs to a Person

Some cases filed under "religious liberty" really are about an individual conscience running into a rule that wasn't built with that conscience in mind. Gerald Groff was a mail carrier who kept his Sunday sabbath and asked not to deliver Amazon packages on Sundays. When the Postal Service pushed back, the Supreme Court used his case, Groff v. DeJoy (2023), to raise the bar employers must clear before denying a religious accommodation, requiring proof of "substantial increased costs," not just minor inconvenience.

Jack Phillips didn't want to design a wedding cake for a same-sex couple, and the Court ruled narrowly in his favor in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), on the ground that the state's civil rights commission had shown open hostility toward his beliefs rather than neutral enforcement. Lorie Smith didn't want to build wedding websites for same-sex couples, and in 303 Creative v. Elenis (2023) the Court sided with her, though on free speech grounds rather than free exercise ones, holding Colorado couldn't compel her to create speech she didn't believe.

In each of these, the person asking for protection was one individual with a conscience and no institution standing behind her beyond her own small business.

When the Liberty Belongs to an Institution

Other cases run in a different direction entirely. In Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012), a called teacher named Cheryl Perich sued her church-run school after being fired following a disability-related dispute, and the Supreme Court ruled 9-0 that the "ministerial exception" barred her claim, because the First Amendment gives a religious institution the right to select and remove its own ministers without government interference, full stop. In Fulton v. City of Philadelphia (2021), the Court ruled unanimously that the city couldn't refuse to contract with Catholic Social Services over its refusal to certify same-sex couples as foster parents, because the city's contract allowed for individual exemptions and so wasn't truly generally applicable under Smith. Both are real wins for religious institutions, and I think both were correctly decided on their own terms. But notice the shape of the claim. The person asking for protection is no longer a lone dissenter facing down a powerful state. It's an institution, asking the state to leave its internal governance alone.

The ministerial exception in particular has become the load-bearing wall of institutional religious liberty, and it shows up well beyond employment disputes. Courts have extended versions of it to limit negligence claims and even some abuse-related litigation against churches and religious schools, on the theory that examining how an institution supervised or disciplined its ministers would require a court to second-guess a religious judgment the First Amendment puts off limits. That's a defensible principle in the abstract. It becomes a much harder question when the "internal governance" being shielded from a court's scrutiny is the way a church handled a credible allegation.

Two Freedoms, One Name

The Person the Institution Also Claims to Protect

Here's where it gets complicated, and where I think the coverage of "religious liberty" tends to flatten something that shouldn't be flattened. The same legal architecture that protects a dissenting individual from a hostile state can also protect an institution from a dissenting individual inside it. Consider three situations: a pastor who raises a concern about how leadership handled an abuse report, a teacher at a religious school fired after questioning a doctrinal policy, a member who goes to civil court after being disciplined by a church body. In each of these situations, the institution can reach for the exact same phrase, religious liberty, and the exact same doctrine, ministerial exception or church autonomy, that once protected Roger Williams from Massachusetts Bay. Only now it isn't protecting the dissenter from the institution. It's protecting the institution from the dissenter.

It's a familiar pattern to anyone who has watched authority codification unfold inside a religious movement: the same protections built to give an institution room to hold its own convictions become the material it later uses to insulate its own governance from question. I don't think that makes every institutional religious liberty claim wrong. Churches need real room to govern themselves; a court forcing a denomination to ordain someone it doesn't believe is called would be its own kind of establishment violation. But I've come to think the word "liberty" is doing something rhetorically slippery when it moves from protecting a person with no institutional power to protecting an institution from the people inside it. When institutions protect themselves, they tend to reach for whatever language is lying closest at hand, and right now, religious liberty is lying very close at hand.

Why This Is Trending Now

Part of what's driving the current wave is genuinely new. Groff and 303 Creative are only a few years old, and lower courts are still working out how far they reach. State legislatures keep introducing their own versions of RFRA, and each one gets litigated against a slightly different backdrop of local anti-discrimination law, so the same fact pattern can come out differently in one state than in another. Indiana offered the clearest recent example of how volatile this gets. When Governor Mike Pence signed the state's Religious Freedom Restoration Act in March 2015, business groups and the NCAA threatened to pull events out of the state over fears it would let businesses refuse service to gay customers. The legislature amended the bill within a week to add explicit nondiscrimination language. The statute's core language, the compelling-interest and least-restrictive-means test, was nearly identical to the federal RFRA from 1993. What changed between 1993 and 2015 wasn't the legal wording. It was who the public pictured invoking it.

That's the real story behind the current surge, in my view. The legal machinery hasn't changed as much as the cast of characters using it. A florist doesn't need the same legal theory a diocese needs. They currently just share a name, and that shared name is doing a lot of quiet work, letting a listener assume that whatever sympathy they feel for the lone believer transfers automatically to the institution making a very different kind of claim. I'd expect the individual-conscience side and the institutional-governance side to keep drifting further apart as more of each gets tested in court, because they're increasingly being pressed by different kinds of plaintiffs with different kinds of claims.

Frequently Asked Questions

What does the First Amendment actually say about religious liberty? The Free Exercise and Establishment Clauses together read: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Almost everything else in religious liberty law is an argument about what those sixteen words require.

What is the Religious Freedom Restoration Act (RFRA)? RFRA is a 1993 federal law passed after Employment Division v. Smith (1990) narrowed free exercise protections. It requires the federal government to show a compelling interest and use the least restrictive means before substantially burdening someone's religious exercise. City of Boerne v. Flores (1997) held it doesn't bind state and local governments, which is why many states have since passed their own versions.

What is the "ministerial exception"? It's a doctrine, confirmed unanimously in Hosanna-Tabor v. EEOC (2012), that bars courts from hearing employment discrimination claims brought by ministers against their religious employers, on the theory that the First Amendment gives religious institutions the right to choose and remove their own ministers without government interference.

Is religious liberty a right for individuals, institutions, or both? Both, and that's the source of most of the current confusion. Claims like Groff v. DeJoy (2023) protect an individual's conscience against a rule that burdens it. Doctrines like the ministerial exception protect an institution's governance from outside legal scrutiny. The two aren't the same claim, even though they share a name.

Can a religious institution use religious liberty claims to avoid accountability? The same doctrines that protect a church's right to choose its own ministers have also been used to limit lawsuits over negligence or abuse, since courts are wary of examining internal religious decisions. That's a genuinely contested area of law, and how far courts let the ministerial exception and church autonomy doctrine reach beyond employment disputes is still an open question.

So the next time "religious liberty" shows up in a headline, it might be worth asking which one you're looking at. Is the person asking for protection someone with no institution behind her, or is the institution itself the one asking? Both claims can be legitimate. They are not, in my view, the same claim, and treating them as though they were is how a phrase built to protect Roger Williams ends up, four centuries later, protecting some of the same kind of authority that would have jailed him.

Last updated: 2026-09-26