The Historic Origins of Denominational Neutrality

Annika Barkdull*

The Supreme Court’s recent decision in Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission reiterated a long-held principle: “the government may not ‘officially prefe[r]’ one religious denomination over another.”¹ The Court has rooted that principle in the Establishment Clause, but also acknowledged that it “is inextricably connected with the continuing vitality of the Free Exercise Clause,” because “the ‘fullest realization of true religious liberty requires that government’ refrain from ‘favoritism among sects.’”² But the Court has said little about the origins of this requirement of denominational neutrality.

This Essay examines a key set of sources that illuminate the Founding generation’s development and understanding of denominational neutrality: state constitutions adopted from the onset of the Revolution until shortly after the ratification of the First Amendment. State constitutions “are the most appropriate analogue to the Bill of Rights because they served the same purpose: to establish limits to the power of government in a written declaration of fundamental liberties.”³ Furthermore, they were often written by the same state legislatures which ratified the Bill of Rights, and can thus provide unique insight into the ratifiers’ views of free exercise and establishment.⁴ And by tracking the evolution of those provisions from 1776 to 1793, we gain insight into the evolution of those principles throughout the Founding era.

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© 2026 Annika Barkdull. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Research Fellow, BYU Law. Thank you to Mark Storslee, Michael Helfand, Phillip Muñoz, Nicole Garnett, and Sherif Girgis for helpful comments and conversations. I am also grateful to Henry Purser for excellent research assistance. My sincerest thanks to the editors of the Notre Dame Law Review for convening this Symposium and for their hard work preparing this piece for publication.

1 Cath. Charities Bureau v. Wis. Lab. & Indus. Rev. Comm’n, 145 S. Ct. 1583, 1591 (2025) (alteration in original) (quoting Larson v. Valente, 456 U.S. 228, 244 (1982)).

2 Id. (quoting Larson, 456 U.S. at 245–46) (internal quotation marks omitted).

3 John K. Wilson, Religion Under the State Constitutions, 1776-1800, 32 J. CHURCH & STATE 753, 753 (1990).

4 See id. at 753–54.