by Josh Blackman • 3 minutes
Imagine the government made it a crime to say “Merry Christmas” on public streets, but people could still offer non-religious season’s greetings. This war on Christmas would infringe the First Amendment three times over. First, the law prohibits a message based on its content, a violation of the Freedom of Speech Clause. Second, the law targets the sincerely held religious beliefs of only one faith—Christians—in violation of the Free Exercise of Religion Clause. And third, the law favors secularism over faith, in violation of the Establishment Clause.
This simple hypothetical illustrates the close relationship between the freedom of speech and religious liberty. Indeed, many of the Supreme Court’s most important religious decisions arose in the context of free speech disputes. Let’s consider several landmark cases.
During the early 20th century, states required school children to salute the flag while reciting the Pledge of Allegiance. For most Americans, this act of patriotism would be welcome. But for Jehovah’s Witnesses, saluting a flag amounts to worshiping a graven image. They could no more recite the pledge than they could pray to an idol of Zeus. Three children of this faith challenged West Virginia’s mandatory salute. The trial court found the law violated their free exercise of religion.
On appeal, the Supreme Court found the law violated the freedom of speech. In West Virginia v. Barnette (1943), Justice Robert H. Jackson declared, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Barnette is a landmark free speech case, but provides critical protections for religious liberty.
The Supreme Court seemed more comfortable resolving this case on free speech grounds, rather than religious liberty grounds. Why? My theory is that ruling on the former grounds protects people of all faiths, or no faith at all. By contrast, a ruling based on the religion clauses would only affect certain people of faith, and leave others without legal protection. In either event, the Jehovah’s Witness children received the accommodation they needed.
Despite Justice Jackson’s clear understanding of freedom, governments continue to trample on these fundamental rights. Colorado, in particular, sadly has not learned the lesson from Barnette. Lori Smith designed websites. But due to her sincerely held Christian beliefs, she refused to build a website for a same-sex wedding. Colorado, however, would have forced her to engage in this artistic act in violation of her conscience. In 303 Creative LLC v. Elenis (2023), the Supreme Court held that such compelled speech violated the Free Speech Clause of the First Amendment. Justice Neil Gorsuch’s majority opinion, citing Barnette, ruled that “the government may not compel a person to speak its own preferred messages.”
Colorado was also prepared to force Jack Phillips, a Christian baker, to design a cake for a same-sex wedding. In Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), the Supreme Court found that the state unconstitutionally targeted Phillips for his traditional religious beliefs. In another case, Colorado allowed mental health professionals to “transition” minors to another sex, but prohibited them from counseling children to be comfortable in their own bodies. Chiles v. Salazar (2026) ruled that a Christian therapist had the right to engage in talk therapy, consistent with her own beliefs.
One final case brought by First Liberty Institute is especially important. Coach Joe Kennedy would pray at the 50-yard line after high school football games. The school barred Coach Kennedy from praying, fearful that students would feel coerced to pray with him. Kennedy v. Bremerton School District (2022) ruled that the government violated Coach Kennedy’s speech rights. Prayer is simply a form of speech, much like wishing someone a Merry Christmas. Justice Neil Gorsuch further determined that merely exposing students to prayer did not offend the Establishment Clause. In doing so, the Court overruled the dreaded Lemon test, which barred most public displays of religion.
These cases demonstrate the close linkage between the freedom of speech and religious liberty. We should be grateful the Framers recognized this connection and tied these first liberties together in the First Amendment.
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Josh Blackman is a national thought leader on constitutional law and the United States Supreme Court. He also serves as a professor at the South Texas College of Law Houston. He holds the Centennial Chair of Constitutional Law.
