U.S. Supreme Court Jurisprudence, State and Local Government and Religion: Dueling Phrases, Dueling Constitutions

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Tom R. Hulst
December 8, 2025

Public administrators are facing a daunting legal landscape as Supreme Court opinions impact local government policies concerning religious practices. How do administrators at all levels rule on issues such as prayer in schools; grants to religious organizations; religious symbols and holiday observances; commencement exercises; released time; charter schools; and scholarships for students in parochial schools? In proceeding through this legal and administrative imbroglio, there are two constitutional sources that contribute to this jurisprudential tension. One source of conflict is within the First Amendment to the Constitution itself; the other is the clauses in the US Constitution vis-à-vis the language in state constitutions. Administrators are situated in the vortex of dueling phrases in the First Amendment to the US Constitution and between the US Constitution and state constitutions.

The U.S. Constitutional Context

The US Constitution contains two provisions in the First Amendment regarding religion: the Establishment Clause, which prohibits government from establishing a religion, and the Free Exercise Clause, which ensures individuals can practice their faith without government interference. For decades, the Supreme Court steered a course within the inherent tension between these clauses, seeking government neutrality toward religion. However, recent jurisprudence, notably the 2022 decision in Kennedy v. Bremerton School District, has substantially altered this balance. Advancing an expansive view of free exercise rights, the current Court emphasizes “historical practices and understandings” while abandoning more recent tests concerning the Establishment Clause. It has in effect erected a framework in which religion and government are becoming increasingly entangled.

In Kennedy, Justice Gorsuch wrote for the majority that a public school football coach’s post-game prayers on the 50-yard line were a protected personal religious observance under the Free Exercise and Free Speech Clauses of the First Amendment. Further, that the coach, Joseph Kennedy, was engaging in private speech, not government speech, when he offered a brief prayer on the field after games. The Court’s majority rejected the view expressed by Justice Sotomayor in dissent that students would feel social pressure to join their coach’s prayers and thus the district would cross the line concerning government encouragement of religion. The dissenting opinion averred that the ruling would undermine the separation of church and state and lead to confusion for school administrators on where to maintain the demarcation line on religious expression during school events.

U.S. Constitution in Relation to State Constitutions

Many state constitutions have provisions that prevent state support for or entanglement with religion. The constitutional language emerged in the 1880s when Congressman James G. Blaine’s proposed amendment to the US Constitution failed to pass through Congress. Subsequently, some 37 state constitutions incorporated language that prohibits public funds from being used on behalf of religious institutions. The Washington State Constitution, approved in 1889, for example, provides in Article IX Section 4 that “All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence.” These state-level constitutional stipulations have for many years served to reinforce the legal doctrine of separation of church and state, also implicit in the anti-establishment clause of the First Amendment.

The legal scaffolding has shifted dramatically in the last several years. In 2017, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the US Supreme Court ruled that the state of Missouri violated Trinity’s rights under the Free Exercise Clause of the First Amendment by denying the church an otherwise available public benefit on account of its religious status. Trinity, a religious day care and preschool, sought a state grant to resurface a playground to provide greater safety for children. The state relied on the Missouri Constitution, which states in part, “That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.” The US Supreme Court disagreed, holding that “the Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions. The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church solely because it is a church to compete with secular organizations for a grant.” The Free Exercise Clause of the First Amendment of the US Constitution trumped the religion provisions of the state constitution.

Contemporary legal debates demonstrate the complex relationship among the two federal religion clauses and state constitutions. The Blaine Amendments often impose stricter prohibitions than required by the First Amendment. Tension arises in the nuances of their application. The issue for jurists, and hence administrators, is how to balance state mandates of anti-establishment with US Constitutional commands of religious freedom. This complexity within religious liberty jurisprudence requires a sensible harmonizing of doctrinal precedent, recognition of growing cultural and religious diversity, constraint on the endorsement of religious activity by the sovereign, with freedom of conscience and belief.

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Author: Tom R. Hulst received an MA in public administration from Washington State University. He served as policy advisor to Washington Governor Daniel J. Evans, administrator in the State Superintendent Office of Public Instruction, and superintendent of Peninsula School District. He published The Footpaths of Justice William O. Douglas in 2004 and currently teaches political science at Tacoma Community College.

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