I. Introduction

Censorship, generally, creates net harm to society.[1] When people freely express themselves, the “marketplace of ideas” flows, generating progress.[2] The confluence of different ideals and moralities creates far better solutions absent such open and honest dialogue.[3] Yet specific topics are so polarizing that the marketplace of ideas fails, encouraging groupthink and yielding increased division.[4] Religious beliefs and the foundational tenets stemming from those beliefs continue to divide society.

While overt infractions on religious beliefs have long been cognizable under the Freedom of Exercise Clause of the First Amendment, nuanced causes of actions have been pushed aside. As a result, even if a person genuinely believes a form of religious expression is indirectly inhibited due to government action, there is no current avenue for relief.[5] Absent hard evidence of a governmental regulation specifically aimed at a religious belief, plaintiffs have had scant success fighting for protection.[6] However, given the Court’s recent expansion of protections for religious expression in Kennedy v. Bremerton School District,[7] the next logical step is to adopt a form of prophylactic protection—chilling—into Free Exercise jurisprudence.

Respect for both religious and secular beliefs requires an understanding that an omission of expression that stems from government actions violates the Free Exercise Clause. Moreover, when these beliefs are omitted from society because the government action has the downstream effect and propensity to reduce expression, the government action should no longer stand. When providing injunctive relief, the Court requires a threat of specific future harm; however, chilling religious exercise has yet to pass constitutional muster, which means a mere threat alone is insufficient.[8] This creates a paradox between the First Amendment and the current jurisprudential landscape. Rather than proactively protecting both religious and nonreligious beliefs and expressions, plaintiffs must wait until there is complete proof of injury after the fact.[9] Thus, the harm is complete, and a person’s beliefs are already actively suppressed and omitted from society.

Deterring expression and creating a state in a society where citizens believe that omission is the only path moving forward runs contrary to the ideal societal form—one where religious beliefs coexist through prospective protection and prevention against omission. The separation of church and state requires protecting all ideals and beliefs. The downstream effects of not protecting against chilling and the current jurisprudence of only providing post hoc relief require reframing. Religious and nonreligious expressions are indispensable to life in a free and diverse republic. Discouraging types of expression that require insulation from governmental interference necessitate proactive protection. Accordingly, given Kennedy’s expansion of religious protection, government action that incidentally inhibits expression requires an avenue of relief for plaintiffs. The logical next step for the Court is to adopt constitutional chilling in the Free Exercise context.

This Note next turns to the history of the Court’s understanding of constitutional chilling under the First Amendment. Historically, the Court has grappled with chilling in the Free Speech context.[10] However, this Note takes a new approach and proposes that courts adopt chilling under the Free Exercise Clause. Then, the Note analyzes the Court’s recent expansion of religious protections afforded by the Free Exercise Clause. Three recent opinions, Kennedy, Carson ex rel. v. Makin, and Espinoza v. Montana Department of Revenue, all support why the Free Exercise Clause should protect against constitutional chilling.[11] The Note then discusses why constitutional chilling is warranted under the Free Exercise Clause and how courts should adopt the approach moving forward. Additionally, the Note provides two examples of how incorporating constitutional chilling would serve religious protections by discussing it in the context of 303 Creative LLC v. Elenis and Employment Division of Oregon v. Smith.[12]

II. Background

Implementing constitutional chilling under the Free Exercise Clause helps to ensure that citizens receive more comprehensive protection for their right to exercise their religious liberties (or not) freely.[13] Justice Brennan expressed some support for chilling in his concurrence in Lamont v. Postmaster General of the United States.[14] In doing so, Justice Brennan recognized that government actions could chill or deter First Amendment rights, even if such rights are not prohibited outright by the relevant government action.[15]

However, seven years later, the Court decided Laird v. Tatum, severely limiting the applicability of chilling moving forward.[16] The Court concluded that chilling could not satisfy the standing requirements under Article III of the Constitution because subjective fears could not amount to a present or immediate injury.[17] Over a decade later, in Meese v. Keene, the Court partially walked back its stance on chilling and found that the possibility of cognizable injury could satisfy Article III’s standing requirement.[18] Thus, while chilling has never been formally adopted into the Court’s First Amendment jurisprudence, the Court has recognized, to some extent, the validity of various chills.[19] As discussed in the subsequent portions of this Note, given the Court’s expanded protection under the Free Exercise Clause, it is appropriate to adopt constitutional chilling into its framework.[20]

A. What Constitutes Chilling?

Constitutional chilling occurs when a First Amendment right is inhibited by the prospect of government action.[21] For example, shortly after the Second Red Scare, Louisiana passed the Louisiana Subversive Activities and Communist Control Law and Communist Propaganda Control Law, which plaintiffs alleged were employed to discourage them from promoting desegregation.[22] The plaintiffs asserted that Louisiana curbed their supporters from expressing their beliefs because it continually threatened to arrest their supporters.[23] The district court dismissed the complaint for lack of standing.[24] The U.S. Supreme Court disagreed because, even if prosecution under the statutes was ultimately unsuccessful, the supporters’ free speech rights would be substantially chilled.[25] Accordingly, the statutes’ broad reach and possibility of future prosecution, even if unsuccessful, required the Court to find the statutes “void on their face.”[26]

Governmental chilling typically extends to constitutional state-action requirements, chilling actually occurring, or violation of a constitutional right.[27] Under the state-action requirement, if the state’s statute incidentally abridges free speech but does so in relation to the legitimate interests of the state, mere chilling is insufficient to invalidate the law.[28] However, this relies upon the assumption that the law itself is aimed “against socially harmful conduct,” which implies the court is also the arbiter of societal values.[29] Accordingly, chilling under state action is governed pursuant to the state’s notions of values and a court’s corresponding validation.[30] The chilling effect itself refers to two different “chills.”[31] “Procedural chill[s]” occur from either inevitable litigation or imprecise regulations, and “deterrent” chills recognize both the effect of inhibition and prohibition against the Free Exercise Clause. [32] This Note argues for the Court to adopt and recognize deterrent chills in its Free Exercise Clause analysis.

Deterrent chills fundamentally concern the censorship of the populous.[33] Under this theory, there are two forms of self-censorship.[34] First, people choose to self-censor because of another person’s belief system, and this leads to the conclusion that self-censorship is wrong because another person subjects their belief system to the belief systems of others, restraining the independent right of expression.[35] Second, a self-censor chooses to censor, and because it is a personal choice, seemingly disconnected from outside forces, the blame belongs to the self-censor—with no blame awarded to the force that created the attendant circumstances leading to the censorship.[36] Most theories discard chilling, assuming the second view of self-censorship and believing that it is far too short of satisfying Article III’s injury-in-fact requirement.[37]

B. Laird v. Tatum Imposed a Devastating Blow to Chilling

Chilling took a devastating blow in Laird v. Tatum when the Court dismissed the plaintiff’s suit premised on the theory of suffering from a subjective chill.[38] In Laird, the Department of the Army, pursuant to 10 U.S.C. § 331, began a data-gathering system established to create a plan for the Army to assist local law enforcement.[39] The Court recognized recent and previous cases that allowed plaintiffs to satisfy Article III standing under the chilling effect.[40] However, mere knowledge of the agency’s actions or fear of potential detrimental future action is insufficient.[41] For a chilling effect to create Article III standing, there must be a current or future direct impact on the plaintiff’s conduct.[42] In his dissenting opinion, Justice Douglas referenced Justice Brennan’s concurrence in Lamont and expanded that “the gist of the standing issue is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’”[43] Constitutional chilling, which had seemingly expanded over the past decade,[44] acquired its perimeter—“present or immediate[] threatened injury resulting from unlawful government action.”[45]

The Court concluded that such a speculative standard created a potential abuse of power, potentially leading to an influx of litigation aimed to hinder proper action.[46] The Court used Laird to draw in the reigns of past cases and clarify that its prior decisions did not approve the theory of subjective fear providing the only basis to negate regulation.[47]

C. A Slight Comeback? Potentially After Meese v. Keene

Yet, after Laird appeared to apply restraints to chilling, the Court decided Meese v. Keene, which found that harming a person’s reputation due to stigma associated with labeling foreign-made films political propaganda was sufficient for Article III standing.[48] The injury “demonstrated more than a ‘subjective chill’” because cognizable injury could occur.[49] The risk of injury could be traced to enforcement of the statute, and thus, the plaintiff could suffer injury from the statute’s enforcement.[50] However, even though the plaintiff established proof that a cognizable injury could occur, it did not amount to a legitimate injury for which the plaintiff could receive recompense.[51] The Court mirrored the logic of the second view of self-censorship, discussed above, by holding that the plaintiff could “combat any such bias simply by explaining [why it is not actually political propaganda].”[52] Apparently, the public is acutely aware that the term “political propaganda” is neutral, so there is no legitimate harm because the public can sort it out.[53] Finally, the “neutral and evenhanded” nature of the term “propaganda” fell in line with other examples of legislation, all of which the Court deemed neutral as well.[54]

Justice Blackmun, joined by Justices Brennan and Marshall, wrote a dissenting opinion where he agreed with the majority’s stance concerning Article III standing but raised substantial concerns over the majority’s dismissive tone and application of the law under its First Amendment analysis.[55] Due to the majority’s flawed classification of political propaganda as neutral, it ignored the legitimate effects of the term and how it negatively impacted and violated the First Amendment.[56] Blackmun recognized that coercion does not necessitate a “direct restriction” because “indirect discouragements are fully capable of a coercive effect on speech.”[57] Blackmun considered the downstream effects of the statute and saw that the restriction allowed Congress to indirectly restrict speech because, even though facially it might not restrict speech, the scheme itself nevertheless brought that result.[58] Thus, even slight infringements require a compelling government interest, which Blackmun believed was entirely lacking.[59]

Nevertheless, there remain two forms of chilling post-Meese.[60] First, plaintiffs may claim a regulation deters them from engaging in an activity out of fear of violating that regulation.[61] The regulation can also implement an imprecise definition, creating a risk-reward ratio that is too high due to the potential punishment.[62] Second, the regulation might explicitly govern a form of expression, creating societal pressure to abandon the activity.[63] People will abstain from the regulated activity because of governmental or societal pressures.[64] The prohibitory nature of the regulation could become broad enough to bar the activity. In the alternative, the negative externalities of adhering to the rule pose too significant a risk and create an authentic but artificial barrier to entry that is too high for an ordinary citizen to engage.[65]

D. An Alternative to Chilling

Before analyzing how to incorporate constitutional chilling into Free Exercise jurisprudence, it is important to highlight an emerging approach that utilizes a direct impact analysis rather than chilling.[66] The direct impact analysis recognizes the classic shortcoming of the chilling effect—misplaced assumptions.[67] Instead of focusing on the impact sustained by potential actors, it focuses on real actors.[68] In doing so, it calls for courts to assume speech exists, determine whether First Amendment protections apply, and use existing tests to determine if there is a violation.[69] However, as discussed in the rest of this Note, it is the ability of regulations to chill the free exercise of religion that makes them invidious.[70] The forward-looking nature of chilling creates a level of prophylactic protection that religious and non-religious expressions should receive.

III. The Court’s Recent Expansion of First Amendment Protections Creates an Opportunity to Recognize Chilling Formally

Before beginning the analysis of incorporating chilling into Free Exercise jurisprudence post-Kennedy, it is essential to note that even if a regulation inhibits religious exercise, it does not automatically raise a constitutional concern.[71] Properly enacted regulations, or benign chillings, pose no threat to the Free Exercise Clause because there is no inherent constitutional concern.[72] The only forms of chilling that this Note argues implicate the Free Exercise Clause are those that discourage a citizen’s freedom to exercise their religious beliefs because this right requires insulation from government interference and regulation.[73] Just as subtle inhibitions of a person’s speech result in an injury to Free Speech, the same holds true for subtle inhibitions of religious exercise.[74] Thus, the injury in question is not merely the subjective harm sustained due to the omitted religious expression but also the reason the chilling occurs in the first place.

In 2022, the Court decided two cases that have expanded religious protections under the Free Exercise Clause: Kennedy v. Bremerton School District and Carson ex rel. v. Makin.[75] In doing so, the Court began to recognize that its prior cases had not aligned with the principles established in the First Amendment. Under these two holdings, a state cannot discriminate against religious or non-religious practices or coerce religious or non-religious expressions, and the Free Speech, Free Exercise, and Establishment Clauses are devoid of a hierarchy moving forward.[76] Thus, the level of parity the Court provided regarding religious and non-religious conduct offers an apt opportunity to allow citizens to formally challenge regulations under the chilling framework.[77]

The subsequent subsection discusses Kennedy’s central holding and underlying analytical framework. It emphasizes how the Court expressly stated that the Free Exercise Clause extends beyond mere coercive activity. Then, this Section will turn to the Court’s recent holding in Makin. Critically, the Court’s holdings in Kennedy, Makin, and Espinoza v. Montana Department of Revenue make it appear that the Free Exercise and Free Speech Clauses have more weight than the Establishment Clause.[78] Thus, these recent holdings all provide the necessary foundation for courts to recognize chilling in the Free Exercise Clause’s context.

A. Kennedy v. Bremerton School District Expanded the Religious Protections Provided by the Free Exercise Clause

In Kennedy v. Bremerton School District, Joseph Kennedy, a high school football coach, prayed on the fifty-yard line at the conclusion of every game he coached.[79] Although Kennedy initially prayed alone, players began to join, and the School District (District) asked him to stop praying at the fifty-yard line moving forward.[80] After briefly complying with the District’s request, Kennedy’s sincerely held religious beliefs led to an inability to comply moving forward.[81] The District subsequently placed Kennedy on paid administrative leave and recommended he not be rehired because “he ‘failed to follow District policy’ regarding religious expression and ‘failed to supervise student-athletes after games.’”[82]

The Court analyzed Kennedy’s claim under both the Free Exercise and Free Speech Clauses of the First Amendment and ultimately found Kennedy’s suspension unsustainable under either standard.[83] The District believed that Kennedy’s rights had to yield to a potential Establishment Clause violation, relying on the analysis set forth in Lemon v. Kurtzman, which the Court made crystal clear is no longer applicable.[84] The Court held that the Free Exercise Clause is not limited to protecting religious beliefs in the confines of a person’s home but also extends to a person’s daily life.[85] And while coercing religious practice is a clear violation of the Free Exercise Clause, the Clause does “its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life though ‘the performance of (or abstention from) physical acts.’”[86] Moreover, the Court recognized the interplay between the Free Exercise Clause and Free Speech Clause within the First Amendment and declared that they are complementary to one another, devoid of a hierarchy.[87] Importantly, this interplay led the Court to conclude that the argument that “ha[ving] a duty to ferret out and suppress religious observances even as it allows comparable secular speech,” is insufficient because it violates both the Free Exercise Clause and the Free Speech Clause.[88]

The Establishment Clause requires interpretation according to “historical practices and understandings.”[89] An essential part of joining a tolerant citizenry is tolerating speech or prayers of all kinds. Coercing religious practices is a clear violation of the Free Exercise Clause.[90] The First Amendment provides a double layer of religious protection, and one cannot veil religious liberty when the regulation would actually suppress it.[91] The Court concluded that the First Amendment does not allow discrimination by suppressing religious speech while concurrently allowing nonreligious speech of the same nature.[92] However, the dissent believed that the holding placed individual religious rights over societal rights and interests.[93]

B. Carson ex rel. O.C. v. Makin Lends Additional Support for Incorporating Chilling

In a case decided one week before Kennedy, the Court provided additional support under the Free Exercise Clause in the context of coercion.[94] In Carson ex rel. O.C. v. Makin, petitioners argued that a nonsectarian requirement for tuition assistance in Maine’s constitution violated, inter alia, the Free Exercise Clause.[95] Under this implementation, most nonsectarian private schools received tuition assistance.[96] However, petitioners could not receive tuition assistance because the schools they sent their children to did not qualify as nonsectarian.[97]

Ultimately, the nonsectarian requirement violated the Free Exercise Clause because, under the policy, a school’s religious affiliation (or lack thereof) was dispositive of whether it received the “otherwise generally available tuition assistance payments.”[98] The Court echoed semi-similar points that it made in Kennedy.[99] Free Exercise Clause violations include overt coercion, penalties, and outright prohibitions, as well as “indirect coercion [and] penalties.”[100] A state cannot pick and choose what benefits a religious organization can receive when such benefits are available to the general public.[101] Accordingly, the Free Exercise Clause prohibits both “discrimination on the basis of religious status” and “use-based discrimination.”[102] This view led to the ultimate conclusion that a state’s interest in separating the church and state cannot survive when it overtly discriminates against religions, which excludes those who practice religion to exercise their religious beliefs.[103] However, the dissent believed that Maine’s tuition assistance program furthered the ideals of neutrality between the government and religion because the state should have the ability “to avoid spending public money to support what is essentially the teaching and practice of religion.”[104]

IV. What’s the Point? Chilling Seems Like Too Much Work

The primary justification for adopting chilling is that continually eroding constitutional rights has an extreme downstream effect. Chilling offers a form of prophylactic protection meant to insulate the right of religious expression by making sure those on the margins are not negatively affected over time.[105] Moreover, the associated chilling effects are not immaterial—they are real and cognizable.[106] While the Court has responded to chills by implementing the overbreadth doctrine,[107] there is still more work to be done.

Given that the First Amendment is essential in “establish[ing] an open marketplace of ideas,”[108] collective decision-making relies on a level of personal autonomy that necessitates freedom to engage in expressive behaviors,[109] including religion. Abuse of protected speech creates a level of censorship that chills expression at the same level as government regulation.[110] Such abuse of protected speech establishes a form of social chilling where citizens are chilled due to other people’s conduct or the prevailing social norm.[111] This creates a level of compliance that would not occur but for the inherent ambiguity in a government law or action, leading to actual and perceived uncertainty.[112] Thus, behavioral science reveals that instead of acting with full autonomy and individual expression, people mirror the behaviors they believe others would condone, creating a circular flow of compliance whose causal link is from fear of not complying rather than complying in accordance with how the law is actually written.[113]

Fear of not complying with societal norms has led some people not to engage in protected action and speech that is unpopular unless they can remain anonymous.[114] Thus, stripping away anonymity discourages a level of protected speech by chilling expression.[115] Taking away anonymity creates a level of normative conformity that deters expression because it instills fear of behaving in a manner that does not accord with the prevailing social norms.[116] These social norms create “invidious chillings” because an activity protected by the Constitution is now discouraged.[117] Thus, the fundamental beliefs upholding the First Amendment—the exchange of information, search for truth, open criticism of the government, and religious freedom—demand a strong base for societal interactions and growth.[118] Absent prophylactic protection for expression, not only are people actively discouraged from engaging in protected expression, but the marketplace is also deprived of the exposure.

These issues have led to the “jud[icially] [created overbreadth] doctrine, aimed at eliminating . . . chill[s] [from overly broad] statutes.”[119] By weighing the “competing costs” of First Amendment rights and government regulation, the overbreadth doctrine facially invalidates a statute when it “prohibits a substantial amount of protected speech.”[120] However, expanding the overbreadth doctrine creates two distinct disadvantages.[121] First, it can deter states from sanctioning conduct that is not constitutionally protected.[122] Second, it can lead to states failing to prosecute conduct that they seek to condemn, even though there is no constitutional barrier to do so.[123] Accordingly, there are inherent issues with maintaining chills within the overbreadth framework,[124] even though overly broad regulations affect both the targeted unprotected conduct and the protected conduct outside of its primary target.[125]

Thus, courts should look at the religious expression chilled by government regulation or activity to determine the harm resulting from both the chilling and chilled expression.[126] The standing issue is moot: Injury-in-fact is proven because the Court has found that government action can induce self-censorship.[127] Additionally, the chilling effect is genuine.[128] Thus, when a substantial number of persons are chilled from exercising their rights, a cognizable injury occurs.[129] The conformity and compliance resulting from chills create “less creativity, experimentalism, dynamism, and innovation [and] sharing.”[130] Conformity can advance destructive antisocial behaviors affecting personal relationships and, more broadly, societal interactions within the United States.[131] The belief that chills are merely subjective, self-inflicted, and too speculative is misguided, stemming from a short-sighted analysis, overlooking an ever-increasing number of studies that substantiate the chilling effect.[132] Further, when dealing with religion, it is often difficult “to separate the belief from the believer,” which can create the opportunity for increased chills.[133] The Court should formally adopt the chilling analysis into its Free Exercise framework because it accords with the principle of “protect[ing] religious exercises, whether communicative or not.”[134] Most importantly, the Free Exercise Clause looks to protect peoples’ rights to live their daily lives in accordance with their religion by protecting the right to “perform[ ] (or abst[ain] from) physical acts.”[135]

Finally, the Court has recently recognized that government action does chill protected activity. In Lozman v. City of Riviera Beach, the Court recognized that government retaliation against protected speech aimed to silence a form of speech requires sufficient means of redress.[136] Because the speech at issue was pursuant to the right to petition, the petitioner’s speech was “high in the hierarchy of First Amendment values.”[137] In Federal Election Committee v. Wisconsin Right to Life, Inc., the Court rejected an intent-based test when deciding whether or not a speaker intended to affect an election, in violation of Section 203 of the Bipartisan Campaign Reform Act of 2002.[138] In doing so, the Court stated that it must apply an objective standard in its determination to avoid “chilling speech through the threat of burdensome litigation.”[139] Given that the Court recognizes chills in the context of the First Amendment, and that they negatively impact society, the logical next step is to incorporate chilling into the Free Exercise framework to provide a more protective safeguard against religious and non-religious liberties moving forward.

A. Formally Adopting Chilling into the Free Exercise Clause Serves Both Religious and Non-Religious Conduct[140]

A valid concern is that chilling might favor the majority religion over others or secularism. The Kennedy decision has faced an outcry of condemnation from various news sources that believe the separation between church and state is dissipating.[141] These claims overlook Kennedy’s conclusion, which states that the government cannot “ferret out and suppress religious observances even [if] it allows comparable secular speech. [Because] [t]he Constitution neither mandates nor tolerates that kind of discrimination.”[142]

Nevertheless, “[a]t [the Establishment Clause’s] core, [it] forbid[s] ‘sponsorship, financial support, and active involvement of the sovereign in religious activity.’”[143] While this may be true, the Establishment Clause does not go so far as to require all religious expression to be “purge[d] from the public sphere.”[144] The crux of the complementary, yet sometimes competing ideals between the Free Exercise Clause and the Establishment Clause is that the government cannot discriminate between religious and non-religious individuals and organizations.[145] When the religion clauses compete with one another, the competition must amount to more than a “mere shadow,” because “phantom constitutional violations” are not cognizable.[146]

The prophylactic effect of protecting chillings in the Free Exercise context ensures that the Establishment Clause does not exceed its scope of authority by reducing religious expression.[147] Moreover, chillings work both ways; they also protect non-religious speech and prevent government actions from interfering with the public sphere.[148]

The protection provided by the free exercise of religion does not confound other people’s rights because it does not demand more protection; it asks for equal application for the freedom to either express or not express religious beliefs.[149] The central issue of impermissible coercion[150] does not rise because chilling requires a level of “social conformity and compliance,” which stems from uncertainty and ambiguity within the law.[151]

B. 303 Creative LLC v. Elenis Exemplifies Why Chilling Is Needed[152]

In 2021, the Tenth Circuit decided 303 Creative LLC v. Elenis.[153] In doing so, the court determined whether 303 Creative violated Colorado’s Anti-Discrimination Act (CADA) when it decided not to create a website celebrating same-sex marriages without any regard for the potential patrons’ status.[154] While 303 Creative provides website services to the LGBTQ community, it does not provide website services celebrating same-sex marriages due to the founder’s religious beliefs.[155] Upon review, the Tenth Circuit discussed standing, Free Speech, Free Exercise, and the overbreadth doctrine.[156]

In its Free Exercise analysis, the court determined whether CADA is neutral, generally applicable and, therefore, not intolerant to religious practices or beliefs.[157] The court rejected 303 Creative’s argument that Colorado would not apply CADA with neutrality following Masterpiece Cakeshop, due to a lack of evidence in the record.[158] It did not side with 303 Creative classifying CADA as a religious-speakers policy and, therefore, failing the general applicability test.[159] The court considered Tandon v. Newsom and Roman Catholic Diocese of Brooklyn v. Cuomo.[160] Both cases dealt with COVID-19 restrictions and the disparate treatment the government provided, which restricted access to religious exercise, while not restricting access to secular activities.[161] These two cases proved illustrative because 303 Creative could not point to a similarly situated secular-speaker.[162] Moreover, any message-based refusal allowed under CADA did not create an individualized exemption because it only allowed refusals “unrelated to class-status.”[163]

303 Creative would trigger constitutional chilling under the Free Exercise Clause. The Court in Kennedy stated that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.”[164] The Tenth Circuit’s decision concerning how Colorado’s CADA operates creates ambiguity and uncertainty within the statute relating to permissible and impermissible religious expression and obscures how a business is permitted to operate moving forward.[165] Out of fear of violating CADA, people in Colorado will over-adjust and forgo religious expression that would potentially not violate CADA in order to comply with the perceived mandate of CADA.

The Tenth Circuit’s holding creates a level of tension with the Court’s 2015 decision, Obergefell v. Hodges, which inhibits religious expression.[166] The Laird Court feared that allowing chills to satisfy Article III’s standing requirement would flood the courts with litigation, and needs to be corrected.[167] It requires correction because cases such as 303 Creative spark conscious and subconscious fear of violating judicially imposed social norms.[168] Litigation proceedings asserting chilling do not flood courts with meaningless litigation; they aim to protect fundamental rights.[169] Cases such as 303 Creative create over-compliance and silence expression, impairing societal religious expression. Certainly, this is not how the Free Exercise Clause should operate because all religious beliefs fall under its protection, which encompasses secret beliefs, well-known beliefs, expression, and abstention.[170]

C. An Example of Government Regulation Chilling Native American Ceremonies—Employment Division, Department of Human Resources of Oregon v. Smith

Finally, Employment Division, Department of Human Resources of Oregon v. Smith illustrates the powerful effect chilling has in protecting religions not widely practiced in the United States. The two respondents partook in a ceremony at the Native American Church where they smoked peyote.[171] Their employer fired them for ingesting peyote, and Oregon subsequently denied their request for unemployment benefits because the employer fired them “for work-related ‘misconduct.’”[172] The Court held that the denial of unemployment benefits was constitutional because the criminal statute operated in a generally applicable fashion and did not discriminate based on religious practices by categorizing any burden as merely incidental.[173]

Strikingly enough, the Court concluded its opinion by recognizing that the democratic process might not afford ill-represented religious groups the level of accommodation necessary to protect their sincerely held religious beliefs, deeming it an “unavoidable consequence.”[174] Constitutional chilling in the context of the Free Exercise Clause considers how social pressures lead to widespread conformity, providing apt support for religious minorities lacking proper representation in the democratic process.[175] A social norm can breed widespread silence while encouraging normative behavior at the cost of religious freedoms.[176] The diverse religious nature of the United States does not create an unsolvable paradox when the interests of religious expression and government regulation must negate one or the other.[177] In fact, comparing the chilled religious expression to harm resulting from the chill itself reveals the concrete nature of the injury[178] and potential attempts (albeit perhaps unintentional) to discriminate against religious exercise.[179]

While the activity after the fact amounts to a benign chilling in Smith, it could amount to an invidious chilling.[180] Kennedy and Smith share a fundamental similarity: religious practices directed to a respective divinity.[181] Additionally, the Court in Kennedy expressly endorsed people living out their religion through either “perform[ing] (or abstain[ing] from) physical acts,” which the Court in Smith condemned.[182] Incorporating chilling into the Free Exercise Clause jurisprudence increases religious protections across the spectrum and respects communicative conduct.[183]

V. Conclusion

Constitutional chilling of religious exercise is complex and often challenging to navigate. However, given the Court’s recent expansion of religious protections post-Kennedy, chilling provides a logical outgrowth. Not only do government actions chill people from exercising their First Amendment rights, but they are also proven to chill other rights as well. True separation between the government and religion requires respect when governmental action can curb both religious and non-religious expressions. For a respectful and pluralistic society to move forward, potential downstream effects of government actions require more exacting scrutiny to ensure those foundation principles encapsulated in the Free Exercise Clause. Thus, chilling should be formally adopted into the Court’s jurisprudence.

John L. Carbonari

  1. See Ashwini Ashokkumar et al., Censoring Political Opposition Online: Who Does It and Why, J. Experimental Soc. Psych., Nov. 2020, at 2 (discussing how “silencing dissenters . . . prevents them from voicing their views,” which may stem from a censor’s “hostile motivation to nullify opponents”).

  2. Tabatha Abu El-Haj, "Live Free or Die"—Liberty and the First Amendment, 78 Ohio St. L.J. 917, 943–44 (2017).

  3. See Peter M. Shane, “The Expanding First Amendment” in an Age of Free Speech Paradox, 78 Ohio St. L. Rev. 773, 776–77 (2017) (explaining that the appeal of democratic self-governance resides in the individual exercise of the right to express themselves).

  4. See William B. Swann Jr. & Michael D. Buhrmester, Identity Fusion, 24 Current Directions in Psych. Sci. 52, 52–55 (2015) (explaining that when people become “strongly fused” with certain beliefs, they tend to become continually and increasingly entrenched in these “fused” beliefs).

  5. See Laird v. Tatum, 408 U.S. 1, 11–15 (1972) (finding that subjective fears are insufficient for Article III standing).

  6. See Suneal Bedi, The Myth of the Chilling Effect, 35 Harv. J.L. & Tech. 267, 275–76 (2021) (explaining how chilling is typically limited to the Free Speech context).

  7. See Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022) (“[The Free Exercise and Speech] Clauses work in tandem. Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities.”); see, e.g., Waln v. Dysart Sch. Dist., 54 F.4th 1152, 1158–61 (9th Cir. 2022) (citing that exact proposition from Kennedy and relying substantially on Kennedy’s holding in the Ninth Circuit’s Free Exercise Clause analysis). In Waln, a district policy prohibited graduating seniors from decorating their caps and gowns. Id. at 1157. While the high school permitted some graduates to decorate their caps and gowns with secular symbols, it did not allow the plaintiff to adorn her graduation cap with an “eagle plume [that] was blessed in a religious ceremony.” Id. at 1156–57. The eagle feather (1) served as “[a]n important part of her religious beliefs,” (2) is culturally significant because in the past “schools practiced forced assimilation techniques . . . and t[aught] students that Native American religious and cultural practices were wrong,” and (3) under Native American cultural norms, “may not be covered or worn underneath a cap, [as it] would be considered desecration or disrespect.” Id. In Kennedy, the Ninth Circuit held that the district had not offered a compelling government interest that would satisfy strict scrutiny on either Free Speech or Exercise grounds because “learning how to tolerate diverse expressive activities has always been part of learning how to live in a pluralistic society.” Id. at 1163–64 (quoting Kennedy, 142 S. Ct. at 2431).

  8. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013) (concluding that the plaintiff’s “subjective fear of surveillance d[id] not give rise to standing”).

  9. See id.

  10. See discussion infra Sections II.A–C.

  11. See discussion infra Sections III.A–B and accompanying footnotes.

  12. See infra Sections IV.B–C.

  13. See Monica Youn, The Chilling Effect and the Problem of Private Action, 66 Vand. L. Rev. 1473, 1493 (2013) (explaining that government action that deters expression covered by the First Amendment chills the covered expression).

  14. Lamont v. Postmaster Gen. of U.S., 381 U.S. 301, 309 (1965) (Brennan, J., concurring).

  15. Id.

  16. See infra Section II.B.

  17. Laird v. Tatum, 408 U.S. 1, 13–14 (1972).

  18. See infra Section II.C.

  19. See generally Part II (providing examples of Supreme Court decisions that demonstrate how chilling typically implicates First Amendment rights).

  20. See infra Part IV.

  21. See Lamont v. Postmaster Gen. of U.S., 381 U.S. 301, 309 (1965) (Brennan, J., concurring).

  22. See Dombrowski v. Pfister, 380 U.S. 479, 482 (1965).

  23. Id.

  24. Id. The court asserted that even though the plaintiffs raised First Amendment issues, “[they] did not present a case of threatened irreparable injury to federal rights.” Id. at 482–83. Moreover, the court held that it could not “emasculat[e]” the state of Louisiana and its statutes. Id. at 483.

  25. Id. at 487.

  26. See id. at 497.

  27. Youn, supra note 13, at 1501.

  28. Younger v. Harris, 401 U.S. 37, 51 (1971).

  29. See id. at 52. If societal values evolve to the point where a subjective injury is regarded as a real injury, then the court cannot bar the litigation from proceeding. Jonathan R. Siegel, Chilling Injuries As a Basis for Standing, 98 Yale L. Rev. 905, 917–18 (1989).

  30. See Younger, 401 U.S. at 53 (“[F]ederal court[s] can[not] properly enjoin enforcement of a statute solely on the basis of a showing that the statute ‘on its face’ abridges First Amendment rights.”).

  31. Youn, supra note 13, at 1492–93.

  32. Id. at 1492. Procedural chills are eerily similar to the overbreadth and void-for-vagueness doctrines. Id. at 1493. This Note does not move to adopt procedural chills into Free Exercise jurisprudence.

  33. John Horton, Self-Censorship, 17 Res Publica 91, 102 (2011).

  34. Id.

  35. Id.

  36. Id.

  37. See, e.g., Laird v. Tatum, 408 U.S. 1, 13–14 (1972).

  38. Id.

  39. Id. at 3–5.

  40. Id. at 11.

  41. Id.

  42. See id. While indirect effects on First Amendment rights can establish standing, there is still a fundamental prerequisite that “he must show that he has sustained[,] or is immediately in danger of sustaining[,] a direct injury as a result of [the complained] action.” Id. at 13 (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937) (per curiam)).

  43. Id. at 25–26 (Douglas, J., dissenting) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).

  44. See generally Baird v. State Bar of Ariz., 401 U.S. 1 (1971); Keyishian v. Bd. of Regents, 385 U.S. 589 (1967); Baggett v. Bullitt, 377 U.S. 360 (1964).

  45. Laird, 408 U.S. at 15.

  46. John S. Vento, Constitutional Law—Chilling Effect on First Amendment Rights—Army Surveillance of Civilian Political Activity, 11 Duquesne L. Rev. 419, 427 (1973).

  47. Id. at 425–26. The Court did not believe that the forward-looking and subjective injury asserted fell within the judiciary’s constitutional scope. Id.

  48. Meese v. Keene, 481 U.S. 465, 483–84. The plaintiff asserted that the statute deterred him from showing foreign-made films because requiring him to state that the films were “political propaganda” hurt his image. Id. at 472–73.

  49. Id. at 473.

  50. Id. at 476.

  51. Id. at 484.

  52. See id. at 481.

  53. Id. at 483. Further, the Court believed that only a “partially informed” audience could believe the term “political propaganda” is pejorative rather than neutral. Id. at 484. In doing so, the Court essentially refused to consider the claim absent direct evidence of a partially informed audience, believing the term was not neutral because it believed the theory was too attenuated. See id.

  54. Id. Importantly, the Court did not consider the implications of pairing “political” with “propaganda” and chose only to consider “propaganda” in isolation. Id. at 484 & n.19.

  55. Id. at 485–86 (Blackmun, J., dissenting).

  56. Id. at 490.

  57. Id. (citing Am. Commc’ns Ass’n v. Douds, 339 U.S. 382, 402 (1950)).

  58. Id. at 490–91.

  59. Id. at 495–96.

  60. Michael N. Dolich, Alleging a First Amendment “Chilling Effect” to Create a Plaintiff’s Standing: A Practical Approach, 43 Drake L. Rev. 175, 186 (1994).

  61. Id.

  62. Fred C. Zacharias, Flowcharting the First Amendment, 72 Cornell L. Rev. 936, 987 (1987).

  63. Dolich, supra note 60, at 186.

  64. Zacharias, supra note 62, at 987.

  65. Id. at 985–92.

  66. Jennifer M. Kinsley, Chill, 48 Loyola U. Chi. L.J. 253, 284 (2016).

  67. Id. at 283–85.

  68. Id. at 288.

  69. Id. at 285.

  70. See infra Part IV.

  71. Frederick Schauer, Fear, Risk and the First Amendment: Unraveling the “Chilling Effect”, 58 Bos. U. L. Rev. 685, 690 (1978).

  72. Id.

  73. Id.

  74. See Siegel, supra note 29, at 913–14.

  75. See infra Sections III.A–B; Andrew R. Lewis, The New Supreme Court Doctrine Against Religious Discrimination, Wash. Post (July 7, 2022, 7:00 AM), https://www.washingtonpost.com/politics/2022/07/07/scotus-carson-makin-maine-schoolsbremerton-football-coach/ [https://perma.cc/FQ69-UVGY].

  76. See infra Sections III.A and III.B.

  77. See infra Section IV.A.

  78. See infra note 103.

  79. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2416 (2022).

  80. Id. at 2416–17.

  81. Id. at 2417–18.

  82. Id. at 2418–19 (quoting Kennedy v. Bremerton Sch. Dist. 689 F.3d 813, 820 (9th Cir. 2017)).

  83. Id. at 2426.

  84. Id. at 2426–27. The Lemon test originally “called for an examination of a law’s purposes, effects, and potential for entanglement with religion” that later morphed into a determination of “whether a ‘reasonable observer’ would consider the government’s challenged action an ‘endorsement’ of religion.” Id. at 2427 (quoting Cnty. of Allegheny v. Am. Civ. Liberties Union, 492 U.S. 573, 593 (1989)).

  85. See Kennedy, 142 S. Ct. at 2421.

  86. Id. at 2421, 2429 (quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)).

  87. Kennedy, 142 S. Ct. at 2426 (explaining that “[a] natural reading of [the First Amendment] would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others” (quoting Everson v. Bd. of Educ., 330 U.S. 1, 13, 15 (1947))).

  88. Kennedy, 142 S. Ct. at 2433.

  89. Id. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)).

  90. See Kennedy, 142 S. Ct. at 2429–30.

  91. See id. at 2431. Further, “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.” Id. at 2432–33.

  92. Id. at 2433.

  93. Id. at 2453 (Sotomayor, J., dissenting). The dissenting opinion believed that religion, its beliefs, and its expression require preservation within the private sphere, outside of public discourse. Id. at 2441 (“‘[P]reservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere,’ which has the ‘freedom to pursue that mission.’” (quoting Lee v. Weisman, 505 U.S. 577, 589 (1992))).

  94. Carson ex rel. O. C. v. Makin, 142 S. Ct. 1987, 1996 (2022). The Court’s decision has faced backlash from various news outlets. See, e.g., Ian Millhiser, The Supreme Court Tears a New Hole in the Wall Separating Church and State, Vox (June 21, 2022, 1:30 PM), https://www.vox.com/2022/6/21/23176893/supreme-court-carson-makin-religion-schools-vouchers-chief-justice-roberts [https://perma.cc/26Z8-3CTA] (“Maine’s taxpayers will soon have to fund education at schools with outlandish or even bigoted worldviews.”); ACLU Comment on Supreme Court Decision in Carson v. Makin, ACLU (June 21, 2022, 10:45 AM), https://www.aclu.org/press-releases/aclu-comment-supreme-court-decision-carson-v-makin [https://perma.cc/G4QM-SY3N] (“[T]his Supreme Court has rendered a decision completely contrary to the founding principle of separation of church and state.”); Mark Joseph Stern, The Supreme Court Just Forced Maine to Fund Religious Education. It Won’t Stop There., SLATE (June 21, 2022, 2:04 PM), https://slate.com/news-and-politics/2022/06/carson-makin-supreme-court-maine-religious-education.html [https://perma.cc/TUQ5-QEMN] (“Carson takes this radical theory [of subsidizing religious schools once the state subsidizes private education] to a new extreme, ordering Maine to extend public education funds to religious indoctrination.”).

  95. Makin, 142 S. Ct. at 1995.

  96. Id. at 1993.

  97. Id. at 1994–95.

  98. Id. at 2002.

  99. Here, the Court discussed coercion and Maine’s interest in separating church and state, id. at 1996, 1998, just as in Kennedy, when the Court discussed coercion and the school district’s interest in avoiding an Establishment Clause violation. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2426, 2429 (2022).

  100. Makin, 142 S. Ct. at 1996 (quoting Lyng v. N.W. Indian Cemetery Protective Ass’n, 485 U.S. 439, 450 (1988)).

  101. See Makin, 142 S. Ct. at 1996. Thus, it appears as though true neutrality is required moving forward, and any preferential treatment is disallowed when it is not provided to religions/religious affiliations as well.

  102. Id. at 2001.

  103. See id. at 1998. Merely two years prior, in 2020, the Court examined the contours of a state advancing an interest “in achieving greater separation of church and [s]tate than is already ensured under the Establishment Clause.” Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2260 (2020). In Espinoza, the statute in question barred religious schools and parents who sent their children to religiously affiliated schools from receiving aid. Id. at 2255. The Court held that the Free Exercise Clause limits this state interest and noted that the “case turn[ed] expressly on religious status and not religious use.” Id. at 2256. Accordingly, it appears as though the line drawn in the sand by the Court was that the funds ultimately go towards education, and the religious affiliation of the school is subordinate. Id. at 2261.

    Combining Kennedy, Makin, and Espinoza, the cases seem to collectively indicate that the Establishment Clause is merely ancillary to the Free Speech and Free Exercise Clauses. If this is the case, then the complementary purposes of these clauses discussed in Kennedy, 142 S. Ct. at 2426, may not, in fact, be wholly complementary. If this is true, chilling certainly belongs because it primarily works to protect those two clauses.

  104. Makin, 142 S. Ct. at 2012 (Breyer, J., dissenting) (“The Religion Clauses give Maine the right to honor [state] neutrality by choosing not to fund religious schools as part of its public school tuition program.”). Justice Sotomayor believed the decision would “lead[] us to a place where separation of church and state becomes a constitutional violation.” Id. at 2014 (Sotomayor, J., dissenting).

  105. Richard H. Fallon, Jr., Making Sense of Overbreadth, 100 Yale L.J. 853, 867–68, 870 (1991). Fallon discusses First Amendment chilling in the context of the overbreadth doctrine. Id. at 867. In doing so, Fallon states prophylactic protection serves “to combat [the] chilling effect and other impediments to constitutionally valuable expression.” Id. at 868. However, prophylactic protection does have its drawbacks, namely, enabling judges to cut back protections, just as they may expand protections. Id. at 870. However, the associated drawback might be overstated because the Court’s significant rulings in the 2019–2020 term tended to fall in line with public opinion. James F. Smith, U.S. Supreme Court v. American Public Opinion: The Verdict Is In, Harv. Kennedy Sch. (July 13, 2020), https://www.hks.harvard.edu/faculty-research/policy-topics/democracy-governance/us-supreme-court-v-american-public-opinion [https://perma.cc/HC38-TW6K]. However, the 2022 results provided a different conclusion as the Court began to trail public opinion. Stephen Jessee et. al, The Supreme Court Public Opinion Project, Harv. Univ. (June 6, 2022), https://projects.iq.harvard.edu/scotus-poll [https://perma.cc/Q79V-7KWC].

  106. Brandice Canes-Wrone & Michael C. Dorf, Measuring the Chilling Effect, 90 N.Y.U. L. Rev. 1095, 1114 (2015). Chilling is not limited to Free Speech or Free Exercise because, pre-Dobbs, late-term abortion restrictions chilled abortions that were on the margins but legal. Id. at 1113. Just as those on the margins of abortion regulations suffered this chill, the freedom to express and engage in religious activity, or not, on the margins is similarly chilled. See Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 343–45 (1987) (Brennan, J., concurring). The Court held that the religious organization exception under Title VII, which ordinarily prohibits religious discrimination in the employment context, can extend to the secular nonprofit activities of those religious organizations. Id. at 329–30 (majority opinion). Justice Brennan cautioned that “determining whether an activity is religious or secular requires a searching case-by-case analysis . . . [that can] create the danger of chilling religious activity.” Id. at 343–44 (Brennan, J., concurring). Notably, the case-by-case analysis creates an inherent danger that religious organizations would under-classify religious activities out of fear that only activities easily identifiable as religious would receive an exemption. See id. Thus, those religions and religious activities on the margins face an increased propensity to suffering chills.

  107. Canes-Wrone & Dorf, supra note 106, at 1098.

  108. El-Haj, supra note 2, at 943.

  109. Shane, supra note 3, at 776.

  110. See id. at 774–75 (“The effect of massive volumes of vituperative, but constitutionally protected speech, in discouraging public debate is not literally censorship, but arguably as chilling as any government regulation.”).

  111. See Johnathon W. Penney, Understanding Chilling Effects, 106 Minn. L. Rev. 1451, 1528 (2022) (“[C]hilling effects is an inherently social and an external behavioral effect, and not merely a ‘subjective fear’ that is ‘self-inflicted.’ It is a product of social norms and other external social behavioral influence that have great impact—both consciously and subconsciously—leading to powerful chilling and conforming effects.”).

  112. Id. at 1488.

  113. Id.

  114. Julian R. Murphy, Chilling: The Constitutional Implications of Body-Worn Cameras and Facial Recognition Technology at Public Protests, 75 Wash. & Lee L. Rev. Online 1, 26 (2018).

  115. Id.

  116. Id.; Penney, supra note 111, at 1494 (explaining normative conformity’s “motivation is, among other things, to achieve ‘approval’ from others, to enhance reputation as well as self-image”).

  117. Schauer, supra note 71, at 690.

  118. See id. at 693–94.

  119. Fallon, supra note 105, at 907. The overbreadth doctrine also “induc[es] state legislatures to craft statutes narrowly and [empowers] state courts to furnish narrowing constructions [of statutes].” Id.

  120. United States v. Williams, 553 U.S. 285, 292 (2008) (citing Virginia v. Hicks, 539 U.S. 113, 119–20 (2003)).

  121. Fallon, supra note 105, at 890.

  122. Id.

  123. Id.

  124. Id. at 885 (“The uncertainty surrounding the protective effect of [chills within the overbreadth framework] serves as a nagging embarrassment to the argument that [the] overbreadth doctrine helps to alleviate a chill.”). The first issue is that citizens must have a level of awareness of how the statute is written and operates, which most do not have. Id. The second is that a court’s finding that a statute is overly broad would not likely “alleviate [the] fear of [future] sanctions.” Id. However, even if people understand how a statute is written and operates, those people are likely chilled from engaging in protected activity because they are aware of the ambiguity within the law. Id. at 887.

  125. Canes-Wrone & Dorf, supra note 106.

  126. Schauer, supra note 71, at 705. Thus, the comparison is governmental regulation of religious expression to the religious expression itself.

  127. See Siegel, supra note 29, at 913–14.

  128. Canes-Wrone & Dorf, supra note 106.

  129. Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter, J., concurring) (“[I]nhibition of freedom of thought, and of action upon thought, in the case of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.”).

  130. Penney, supra note 111, at 1516.

  131. Id.

  132. Id. at 1527–28.

  133. See Horton, supra note 33, at 103.

  134. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421 (2022).

  135. Id. (quoting Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 877 (1990)).

  136. Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954 (2018).

  137. Id. at 1954–55 (citing Connick v. Myers, 461 U.S. 138, 145 (1983)).

  138. FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 468 (2007).

  139. Id. at 469 (citing Virginia v. Hicks, 539 U.S. 113, 119 (2003)).

  140. Religious Landscape Study, Pew Rsch. Ctr., https://www.pewresearch.org/religion/religious-landscape-study/ [https://perma.cc/A2K3-QV6V] (last visited Jan. 10, 2023). At the time of publication, the religious makeup of the United States is 70.6% Christian, 5.9% non-Christian faiths, 22.8% unaffiliated, and 0.6% who are unsure. Id.

  141. See, e.g., Mark Joseph Stern, Supreme Court Lets Public Schools Coerce Students into Practicing Christianity, SLATE (June 27, 2022, 4:19 PM), https://slate.com/news-and-politics/2022/06/coach-kennedy-bremerton-prayer-football-public-school.html [https://perma.cc/R89W-DCEQ] (referring to the Kennedy decision as “extreme”); Ira C. Lupu & Robert W. Tuttle, Kennedy v. Bremerton School District—A Sledgehammer to the Bedrock of Nonestablishment, Am. Const. Soc’y (June 28, 2022), https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/ [https://perma.cc/M2HV-VZ6T] (arguing that Kennedy “left nothing in its wake to prevent the government and its agents from using religion as an engine of policy”); ACLU Comment on Supreme Court Decision in Kennedy v. Bremerton School District, ACLU (June 27, 2022, 10:00 AM), https://www.aclu.org/press-releases/aclu-comment-supreme-court-decision-kennedy-v-bremerton-school-district [https://perma.cc/5A92-JQ6C] (“This decision strains the separation of church and state . . . .”).

  142. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2433 (2022).

  143. Id. at 2441 (Sotomayor, J., dissenting) (quoting Walz v. Tax Comm’n, 397 U.S. 664, 668 (1970)).

  144. Id. at 2427 (majority opinion) (quoting Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring)).

  145. See Shurtleff v. City of Boston, 142 S. Ct. 1583, 1594–95 (2022) (Kavanaugh, J., concurring).

  146. Kennedy, 142 S. Ct. at 2432 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 308 (1963) (Goldberg, J., concurring)). Under Goldberg’s concurrence, which the Kennedy majority cites, the state action that violates the Establishment Clause must involve “direct[] or substantial[] involve[ment].” Schempp, 374 U.S. 203, 308 (1963) (Goldberg, J., concurring).

  147. See, e.g., Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 901–02 (1990) (O’Connor, J., concurring) (“[T]he language of the [Free Exercise] Clause itself makes clear, an individual’s free exercise of religion is a preferred constitutional activity.”).

  148. See Schauer, supra note 71, 691–96.

  149. See Kennedy, 142 S. Ct. at 2426 (stating that the First Amendment does not “war” within itself or create a hierarchy of speech).

  150. Id. at 2429.

  151. Penney, supra note 111, at 1491.

  152. 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021). This Note was authored before 303 Creative LLC v. Elenis, 143 S. Ct. 2298 (2023), and strictly analyzes the Tenth Circuit’s decision.

  153. Id. The tension between the First Amendment principles in the case has led to adverse reactions, including believing that “Justice Samuel Alito and Neil Gorsuch were . . . aiming for a maximalist outcome that’ll empower lower courts to make civil rights laws optional for bigoted businesses.” Mark Joseph Stern, The Easy-to-Miss Twist That Makes the Supreme Court’s New Gay Rights Case So Strange (Dec. 05, 2022, 6:15 PM), https://slate.com/news-and-politics/2022/12/303-creative-gay-rights-free-speech-supreme-court.html [https://perma.cc/AR9G-RHP3] (stating further that “[t]here’s also no reason why this principle would apply exclusively to sexual orientation, and not race, religion, gender, or other protected traits”).

  154. 303 Creative, 6 F.4th at 1168–70 (“CADA restricts a public accommodation’s ability to refuse to provide service based on a customer’s identity.”).

  155. Id. at 1170.

  156. See generally id. However, for the purposes of this Note, the discussion will focus on the Free Exercise Clause.

  157. See id. at 1183–85. A law is not neutral when it is intolerant of religion because of a particular religious nature and hinges on the relevant surrounding facts of that specific law. Id. at 1183. General applicability requires an even application to both secular and nonsecular conduct and if there are exemptions within the law, equal access to exemptions for secular and nonsecular conduct. Id. at 1184–85. If a statute is both neutral and generally applicable, it is not subject to strict scrutiny. Id. at 1183. Finally, merely incidentally burdening religion passes constitutional muster if the law is both neutral and generally applicable. Id.

  158. Id. at 1184. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Colorado enforced CADA with religious animus toward a baker whose sincerely held religious beliefs made him unable to bake a wedding cake for a same-sex couple’s wedding. Masterpiece Cakeshop, Ltd. V. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729–31 (2018). Though in Masterpiece Cakeshop, the commissioner stated the baker’s objection “[was] one of the most despicable pieces of rhetoric [a person] can use.” Id. at 1729. Here, a different commissioner expressed support for the commissioner’s statement in Masterpiece Cakeshop, but multiple commissioners “voiced their agreement with the Court’s ruling, or their commitment to follow[ing Masterpiece Cakeshop].” 303 Creative, 6 F.4th at 1184.

  159. Id. at 1185–87.

  160. Id. at 1186.

  161. Id. In both Tandon v. Newsom and Roman Catholic Diocese of Brooklyn v. Cuomo, the Court stated that the COVID-19 policies violated the Free Exercise Clause because the states did not provide an exemption for religious activities even though it provided exemptions for secular activities. Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (per curiam); Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66–67 (2020) (per curiam).

  162. 303 Creative, 6 F.4th at 1186.

  163. Id. at 1186–87. However, the court did go on to make two notable statements. First, the court did not close off the possibility of CADA violating the Free Exercise Clause in 303 Creative’s situation as long as 303 Creative provided a more comprehensive record that Colorado used CADA in a discriminatory fashion against religion. Id. at 1187–88. Second, the court stated that the bona fide relationship exemption, allowing sex-based discrimination if it is sufficiently related to the business, would prompt strict scrutiny post-enforcement if unequally applied to religious and nonreligious reasons. Id. at 1188.

  164. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2432–33 (2022).

  165. See 303 Creative, 6 F.4th at 1186–87. As discussed, the court left the door open for potential applications of CADA that would violate the Free Exercise Clause but did not provide a reasonably conclusive answer. See supra note 157–59. The principle of protecting communicative religious exercises, Kennedy, 142 S. Ct. at 2421, is unsustainable when sincerely held religious beliefs are defeated by statute or judicial action. Compare 303 Creative, 6 F.4th at 1190 (stating that 303 Creative’s religious beliefs might “damage society . . . when [it] would exclude others from unique goods or services”), with Penney, supra note 111, at 1520 (“[S]ocial norms, including ones that people do not necessarily even believe or accept as proper or moral can [chill] . . . as conformity breeds silence or encourages speech, perspectives, and other behavioral norms . . . .”). See also 303 Creative, 6 F.4th at 1191 (Tymkovich, C.J., dissenting) (“CADA forces Ms. Smith to violate her faith on pain of sanction both by prohibiting religious-based business practices and by penalizing her if she does speak out on these matters in ways Colorado finds ‘unwelcome’ or ‘undesirable.’”).

  166. See Obergefell v. Hodges, 576 U.S. 644, 679–80 (2015) (“The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths . . . .”).

  167. Laird v. Tatum, 408 U.S. 1, 13–15 (1972).

  168. See Penney, supra note 111, at 1527.

  169. See Kennedy, 142 S. Ct. at 2431–32 (discussing how the First Amendment serves as a “double protection for religious expression”).

  170. Id. at 2421.

  171. Emp. Div., Dep’t of Hum. Res. of Or. v. Smith, 494 U.S. 872, 874 (1990).

  172. Id. The Supreme Court of Oregon determined that peyote, even though consumed pursuant to bona fide religious purposes, did not fall within an exception to the state’s criminal code. Id. at 876. Moreover, the court determined that the prohibition of peyote that operated to deny unemployment benefits violated the Free Exercise Clause. Id.

  173. Id. at 878, 890. The Court opined that implementing the Sherbert balancing test and considering religious exemptions like those asserted by the respondents would prove unfeasible. Id. at 882–85. Moreover, a religious objector’s spiritual beliefs could not enter into the equation as this would create an infeasible process. Id. at 885.

  174. See id. at 890 (“[L]eaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”).

  175. Penney, supra note 111, at 1494 (the “perceived consensus” influences normative).

  176. Id. at 1520.

  177. See Smith, 494 U.S. at 888.

  178. Schauer, supra note 71, at 705.

  179. Schurtleff v. City of Boston, 142 S. Ct. 1583, 1608–09 (2022) (Alito, J., concurring).

  180. Schauer, supra note 71. Benign chilling has an inhibitory effect from properly enacted regulation, and invidious chilling occurs when a constitutionally protected activity is discouraged. Id.

  181. Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2430 (2022); Smith, 494 U.S. at 874.

  182. Kennedy, 142 S. Ct. at 2421; Smith, 494 U.S. at 890.

  183. Kennedy, 142 S. Ct. at 2421 (“[T]he Free Exercise clause protects religious exercise[.]”).