What does the 14th Amendment say about religion? A plain-language explainer

What the Fourteenth Amendment says and why it matters for religion

The Fourteenth Amendment does not contain a separate religion clause but it is the constitutional vehicle that has made most First Amendment protections enforceable against state and local governments. For the text and the basic clauses that courts rely on, see the Fourteenth Amendment summary at Cornell’s Legal Information Institute, which sets out the Due Process and Equal Protection clauses used in incorporation analysis Cornell’s Legal Information Institute. See also the congressional essay on the relationship between the Establishment and Free Exercise clauses constitution.congress.gov.

In practical terms, the Due Process Clause and the Equal Protection Clause are the provisions courts use to bring First Amendment guarantees like the Free Exercise Clause and the Establishment Clause to bear on state action. That process is called incorporation, and it means the federal free exercise and establishment rules can limit what a state or city does in areas such as education, public funding, and licensing. The constitutional text itself does not say the word religion, but courts have read the First Amendment’s religion protections into the Fourteenth Amendment to reach state governments Cornell’s Legal Information Institute.

The idea behind incorporation is straightforward: after the Civil War, the Fourteenth Amendment created a new constitutional check on states, and over time the Supreme Court interpreted parts of it to apply federal rights against state authorities. That interpretation makes the Fourteenth Amendment central when questions arise about whether a state rule or policy unlawfully burdens religious practice or improperly sponsors religion.

How incorporation brought First Amendment religion protections to the states

Early incorporation doctrine and judicial reasoning

Incorporation is the legal process by which rights in the Bill of Rights were made applicable to the states through the Fourteenth Amendment. Courts look to the Due Process Clause to identify rights that are fundamental and therefore enforceable against state governments. For a clear restatement of the Fourteenth Amendment’s role in incorporation, see the constitutional overview at Cornell’s Legal Information Institute Cornell’s Legal Information Institute or our overview of constitutional rights constitutional rights.

Cantwell as an incorporation milestone

One early and important step in applying free exercise protections to the states came in Cantwell v. Connecticut, where the Supreme Court held that the Free Exercise Clause limits state action and that states could not broadly criminalize or suppress religious solicitation. The Cantwell decision is widely cited as a foundational incorporation case for free exercise protections at the state level Cantwell opinion.

By treating free exercise as a right that states must respect, Cantwell established a baseline: states cannot enact laws that simply prohibit the exercise of religion across the board. That said, incorporation did not fix a single doctrinal test for all disputes. Over time the Court and lower courts developed different standards for when state actions that affect religion trigger close judicial scrutiny versus when more deferential rules apply.

Foundational cases that applied the Establishment Clause to states

Everson and early rulings on establishment

In Everson v. Board of Education the Supreme Court decided that the Establishment Clause also constrains state governments, effectively incorporating that Clause through the Fourteenth Amendment’s protections. Everson explained that state and local authorities could not use their powers to establish a religion or give direct support that favors religion over nonreligion, and the opinion has long been treated as a seminal statement on establishment incorporation Everson opinion.

Everson and related early cases help distinguish two different incorporation tracks: one track brings the Free Exercise Clause against states, focusing on forbidding state interference with religious practice, while another track applies the Establishment Clause to prevent government endorsement or establishment of religion. The two tracks overlap in some disputes, but courts treat the questions differently depending on whether the problem is state coercion, favoritism, or denial of access to public benefits.

Recent Supreme Court decisions and how they changed the landscape

Trinity Lutheran and equal access to public benefits

Starting in 2017, the Supreme Court issued decisions that changed how courts view religious claimants seeking access to generally available public benefits. In Trinity Lutheran Church of Columbia, Inc. v. Comer the Court ruled a state could not deny a public benefit solely because the applicant was a religious institution, saying that excluding religious entities from a neutral public program based on their religious character raises constitutional concerns Trinity Lutheran opinion.

Espinoza and religious entities in public programs

Espinoza v. Montana Department of Revenue built on that reasoning by holding that a state may not disqualify religious schools from public support simply because they are religious, when the program provides benefits to a wide class of beneficiaries. The opinion emphasized that states cannot adopt rules that effectively bar religious entities from generally available public programs, although the scope of that rule depends on context and statutory design Espinoza opinion. For further analysis, see the Harvard Law Review discussion of Espinoza Harvard Law Review.

Kennedy v. Bremerton and religious expression in public institutions

Kennedy v. Bremerton addressed a different but related area: individual religious expression by public employees and students. The Court in Kennedy emphasized constitutional protections for individual religious expression in public institutions under certain circumstances, and the decision has influenced how lower courts weigh free exercise claims involving speech and prayer in schools and workplaces Kennedy v. Bremerton opinion.

Taken together, these post-2017 cases expand protections for religious claimants in public-benefit and public-school contexts, but they do so using different doctrinal approaches. That variety means outcomes often turn on the specific legal test a court chooses to apply and the precise facts before it.

How courts decide: doctrinal tests and standards of review

Strict scrutiny and Sherbert-style analysis

Court review standards determine how hard it is for a government policy to survive a constitutional challenge. Under strict scrutiny, a law that burdens religious exercise must serve a compelling government interest and be narrowly tailored to achieve that interest. Historically, some free exercise claims used a Sherbert-style analysis that applied heightened review in cases where a law substantially burdened religious practice Cornell’s Legal Information Institute.

Neutral-law rules and generally applicable regulations

At other times courts have applied a neutral-law framework: when a law is generally applicable and neutral toward religion, it may not trigger heightened religious protection. That approach limits free exercise claims in some contexts, especially for broadly applicable health, safety, and licensing rules. Recent opinions have sometimes emphasized neutrality as a central consideration in deciding whether to apply heightened review or not Trinity Lutheran opinion.

Historical or structural approaches used by some opinions

Some recent opinions and opinions cited by them have relied on historical or structural reasoning about the Constitution’s original meaning and the balance between free exercise and establishment concerns. These approaches can lead to different outcomes than a pure strict scrutiny or neutral-law analysis, and lower courts have found this doctrinal diversity challenging when deciding which test to apply.

When courts choose among these tests, the practical effect is that similar cases can produce different results depending on whether a judge emphasizes historical practice, neutrality, or heightened scrutiny. That doctrinal flexibility is why the same basic facts-say, a ban on a religious practice or a refusal to fund a religious group-can lead to different legal outcomes in different courts.

Practical effects: what states generally can and cannot do

Public-benefit programs and religious exclusion

One consistent practical rule from recent Supreme Court decisions is that states generally may not categorically exclude religious entities from neutral public benefit programs simply because they are religious. Trinity Lutheran and Espinoza stand for the proposition that a state cannot deny a generally available public benefit to a religious claimant solely on the basis of its religious character, though specific applications depend on statutory and factual details Trinity Lutheran opinion.

That principle does not mean every payment or contract with a religious institution is automatically required. Courts still examine program structure, whether funds would be used for religious instruction or worship, and whether accepting religious claimants would run afoul of other constitutional provisions or state rules. The line between permissible inclusion and impermissible establishment risk often requires careful factual analysis and legal argument in specific cases Espinoza opinion.

School policies and religious speech or practice

For public schools, recent decisions have underscored protections for individual religious expression in some settings while also balancing Establishment Clause concerns. Kennedy and other precedents guide courts looking at prayer, school activities, and on-campus speech to determine whether a school has unlawfully punished or suppressed religious expression or, conversely, endorsed religion. The outcomes are fact driven and depend on the precise circumstances of the speech or action Kennedy v. Bremerton opinion. For further commentary on schools and competing rights, see related analysis Mitchell Hamline Law Journal.

Neutral regulatory laws and accommodation issues

Neutral, generally applicable health and safety rules present a different set of questions. When a law is both neutral and generally applicable, courts are sometimes reluctant to apply heightened religious scrutiny, though there are exceptions for laws that intentionally single out religion or are applied in a discriminatory way. The interplay between neutral-law doctrines and recent expansion of religious protections has left some uncertainty for states and regulated parties facing accommodation requests Cornell’s Legal Information Institute.

Examples and scenarios readers may encounter

A religious nonprofit denied a public grant

Fact pattern: a religious nonprofit applies for a state grant program that funds community services and is denied solely because the organization is faith-based. Legal question: does the denial violate the Fourteenth Amendment as interpreted by recent Supreme Court opinions? Trinity Lutheran and Espinoza suggest a strong argument that a categorical denial based on religious status may be unconstitutional when the program is neutral and benefits a broad class of recipients Trinity Lutheran opinion.

How courts analyze this scenario: a court will examine the program rules, the purpose of the funding, whether funds would be directly used for religious worship or indoctrination, and statutory restrictions. The presence of explicit state limits on use of funds for religious instruction can matter, and outcomes will depend on those precise program details.

Student religious expression at a public school

Fact pattern: a student prays or leads other students in a voluntary prayer at school activities and faces discipline. Legal question: are school actions permissible under the Establishment Clause or do they unlawfully burden free exercise? Kennedy and earlier establishment cases show courts balance the protection of individual expression with the need to avoid school endorsement of religion; context and coercion are central facts courts evaluate Kennedy v. Bremerton opinion.

Practical note: discipline that targets individual religious expression can raise constitutional concerns, but courts distinguish between official endorsement and private speech, and the line depends on supervision, school policy, and how the speech is presented to others.

Neutral health or safety rules that affect religious practice

Fact pattern: a town adopts a neutral public health ordinance that incidentally affects a religious ritual. Legal question: must the government make an accommodation for the ritual? Courts treat neutral, generally applicable health and safety laws differently from cases about public benefits; if a law is genuinely neutral and not targeted at religion, courts may decline to apply heightened scrutiny, though discriminatory application can change that result Cornell’s Legal Information Institute.

Because of post-2017 precedent, plaintiffs may press free exercise claims in many settings, but success depends on the chosen doctrinal framework and the particular facts of the case.

Open questions and what to watch next

Lower courts are still working out how to apply the post-2020 precedent consistently, so litigation over school policies, public funding, and neutral laws will continue to test the boundaries of incorporation and the Free Exercise and Establishment Clauses. Watch how appellate panels frame the applicable test and whether they adopt historical, neutrality, or strict scrutiny approaches in practice Espinoza opinion.

Areas likely to generate new disputes include voucher and scholarship programs, the scope of permissible accommodations under neutral health and safety laws, and cases where individual speech by public employees or students intersects with institutional concerns. Future Supreme Court decisions may refine or reconcile the doctrinal diversity created by recent rulings, but until then outcomes will be fact dependent and vary across jurisdictions Kennedy v. Bremerton opinion.

Key takeaways: what readers should remember

The Fourteenth Amendment is the principal constitutional path for applying First Amendment religion protections to state and local governments, using incorporation through the Due Process and Equal Protection clauses as courts have explained Cornell’s Legal Information Institute.

Recent Supreme Court decisions such as Trinity Lutheran, Espinoza, and Kennedy have expanded protections for religious claimants in particular contexts, especially public-benefit programs and individual expression in public institutions, but they use different doctrinal tests and often produce fact-driven outcomes Trinity Lutheran opinion.