Blue States Are Narrowing Religious Freedom to Worship Alone, Which Constitution and Precedent Do Not Support
Source: Andrea Picciotti-Bayer. "Blue States Are Redefining Religious Freedom." October 9, 2026. thefederalist.com
The Gist
The author says some Democratic-run states are treating religious freedom as only the right to worship in church, while forcing religious hospitals, nuns, and schools to act against their beliefs in everyday life. She argues that history, Justice Scalia's rulings, and leading scholars show religious freedom covers living out one's faith, so courts should protect these religious groups.
Conclusion
Religious freedom under the Constitution protects the full exercise of faith in conduct and service, not merely worship inside a sanctuary, and courts should therefore protect religious institutions and individuals from state mandates that force them to violate their faith.
Premises
- Blue states are imposing requirements on religious institutions that conflict with their teachings, such as assisted-suicide participation mandates in Illinois and New York and Colorado's exclusion of Catholic preschools from its universal preschool program over marriage and sexuality policies.
- Religious exercise by its nature extends beyond the sanctuary into works of mercy and service, and Catholic, Jewish, Muslim, and Protestant traditions all understand faith as something to be lived coherently, not confined to worship.
- Requiring religious people to split into a 'Sunday self' and a 'Monday self' leaves them unfree, and a state that tolerates only private worship while demanding conformity elsewhere is exercising control over religion, which is hostility rather than neutrality.
- The theory that founding-era free exercise covered only public worship (Drakeman) would, if accepted, permit these state mandates, since it would leave a nun at a patient's bedside outside constitutional protection.
- Legal precedent and history contradict the narrow theory: Scalia's opinions in Locke v. Davey, Hosanna-Tabor, and Employment Division v. Smith treated religious exercise as reaching beyond worship, and McConnell's historical work, the 1777 New York constitution's carve-outs for 'licentiousness,' and Madison's Memorial and Remonstrance show the founding generation understood the right to reach conduct.
Assumptions
- The state mandates described are burdens on religious exercise rather than neutral, generally applicable regulations or conditions on voluntary participation in a public program.
- Scalia's and McConnell's views, and an originalist reading of founding-era sources, are authoritative guides to the meaning of the Free Exercise Clause.
- Drakeman's historical thesis is accurately characterized as limiting free exercise to worship and as implying the outcomes the author describes.
- The left's motive is a deliberate drive to secularize religion itself, rather than competing concerns such as patient access, nondiscrimination, or child welfare.
- Religious conduct in the cited cases (assisted suicide, preschool teaching on sexuality) is core religious exercise warranting exemption, outweighing the state's interests.
- Failing to receive a government benefit (preschool funding) can constitute a constitutionally cognizable burden on religion.