America Has Plenty of Religious Freedom Laws. Why Aren’t They Enough?
America already has laws protecting religious liberty. The greater challenge is enforcing them, and a single court victory can accomplish what years of legislation cannot.
America does not suffer from a shortage of laws protecting religious freedom. It suffers from a shortage of accountability when those protections are violated. The First Amendment already prohibits government interference with religious exercise. Congress has enacted additional protections. State legislatures have followed suit. Yet religious discrimination persists. The answer is not necessarily another statute. It is more effective litigation that forces government to respect the rights Americans already possess.
Legislation is politically attractive. Lawmakers introduce bills, hold press conferences, declare victories, and move on. Religious liberty organizations can point to new laws as evidence of progress. But a statute sitting in a lawbook offers little comfort to someone whose church has been closed, who faces discrimination, or whose employer refuses a lawful accommodation.
A courtroom offers something different: an enforceable judgment.
Consider Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission (2025). Wisconsin denied Catholic Charities a religious exemption from unemployment insurance taxes, reasoning that its charitable work was insufficiently religious. The organization did not proselytize or restrict its services to Catholics.
The Supreme Court unanimously rejected that approach. Government could not draw distinctions among religious organizations based on their theological choices about how to serve others.
No new religious freedom statute was necessary. The First Amendment supplied the constitutional protection. Litigation made it meaningful.
Or consider Carson v. Makin (2022). Maine excluded religious schools from an otherwise available private-school tuition assistance program. The Supreme Court held that exclusion unconstitutional. The decision established a constitutional rule extending beyond the families who brought the lawsuit.
That is the power of constitutional litigation. A case can establish binding precedent that constrains government officials throughout an entire judicial jurisdiction. A Supreme Court ruling can establish a nationwide constitutional rule. Such precedent can be reconsidered by courts, yet an ordinary legislature cannot simply vote it out of existence.
Statutes deserve credit where they provide protections beyond what courts recognize under the Constitution. The Religious Freedom Restoration Act and federal employment discrimination laws are significant examples.
For decades, people lobbied for the passage of the Federal Workplace Religious Freedom Act. But despite major endorsements, it never gained the traction necessary to get a vote. Those efforts were instrumental in educating politicians and the public about why it was necessary, but it took a Supreme Court decision to actually bring it to fruition. In Groff v. DeJoy (2023), the Supreme Court clarified the demanding standard employers must meet to deny religious accommodations under Title VII.
Again, litigation gave existing legislation greater practical force.
There is another problem with constantly passing new religious liberty laws. Every new statutory protection can bring new definitions, exceptions, political compromises, and interpretive disputes. Legislatures can amend or repeal ordinary statutes. Courts can find them unconstitutional. In City of Boerne v. Flores (1997), the Supreme Court invalidated RFRA’s application to state and local governments under Congress’s asserted Fourteenth Amendment authority.
None of this means litigation is inexpensive, predictable, or automatically successful. It also does not mean that legislative advocacy is not necessary to at least highlight key issues of concern. Both are needed. Bad judicial decisions can weaken liberty just as good decisions can strengthen it. Legislative remedies remain valuable where constitutional protections fall short.
But religious freedom advocates measure success by more than the number of bills enacted. A well-chosen constitutional case can protect believers across denominations, across state lines, and across changes in political leadership.
The objective should be straightforward: establish legal principles, challenge unconstitutional conduct, and compel compliance.
We have spent decades persuading politicians to promise religious freedom.
Perhaps more of our energy should go into making government keep that promise.