This Note argues that religious offenses, meaning laws which penalize conduct for religious purposes, should be barred by the Establishment Clause of the Constitution, as the Clause was interpreted in Kennedy v. Bremerton School District. This is because Kennedy interpreted the Establishment Clause to prohibit each of the several types of laws which early Americans associated with religious establishment—the historical practice wherein early states would adopt a religion as the state religion and pass various types of laws for its support. And religious offenses, this Note argues, were amongst the types of laws which early Americans so associated with religious establishment. This Note performs an extensive analysis of historical evidence to support this conclusion, relying upon early American statutes and the writings of William Blackstone, Joseph Story, and Richard Mentor Johnson. Because early Americans understood religious offenses to be linked to religious establishment, this Note argues that the Establishment Clause should also prohibit contemporary religious offenses, which similarly penalize conduct for religious purposes. Such contemporary offenses include, amongst others, laws penalizing the teaching of evolution in public schools.
