It has been almost three years since the Supreme Court last heard arguments in a case that turned on one of the religion clauses of the First Amendment, a curious lull in what had been a signature project for the court led by Chief Justice John G. Roberts Jr.: to bolster the place of faith in public life.
The hiatus is over. In the space of a month this spring, the court will hear three important religion cases. The first one, to be argued Monday, asks whether a Catholic charity in Wisconsin should receive a tax exemption. In April, the court will consider whether a Catholic charter school in Oklahoma is constitutional and whether parents with religious objections to the curriculum in Maryland schools may withdraw their children from classes.
Taken together, the three cases will test the limits of the court’s assertive vision of religious liberty, which has been one of its distinctive commitments for more than a decade.
Since 2012, when the court unanimously ruled that religious groups were often exempt from employment discrimination laws, the pro-religion side has won all but one of the 16 signed decisions in argued cases that concerned the First Amendment’s prohibition of government establishment of religion and its protection of the free exercise of religion.
“Religious liberty has been on a winning streak at the Supreme Court since 2012,” said Eric Rassbach, a lawyer with the Becket Fund for Religious Liberty, which represents the plaintiffs in two of the three cases to be argued this spring. “It isn’t yet on par with freedom of speech, but it is getting a lot closer.”
Justice Brett M. Kavanaugh expressed satisfaction with the general trend in remarks at Catholic University’s Columbus School of Law in September. Asked to identify “some of the big themes of the court’s religious liberty cases in recent years,” he said, “We’ve made, in my view, correct and important strides” in “recognizing the constitutional protection of religious equality and religious liberty.”
Not everyone is happy with the general trend or where it seems to be heading.
“This spring’s trio of religion cases threatens nothing less than to raze foundational structures of American law and life,” said Justin Driver, a law professor at Yale, adding that the court has been steadily moving the protection of free exercise to center stage while relegating the concerns about government entanglement with religion to the wings. The two education cases, Professor Driver said, are particularly fraught.
“The Supreme Court this term could quite plausibly destroy the American public school as we have known it for the last several decades,” he said. “Of course, many conservatives will regard that destruction not as a vice, but a virtue.”
There has been one exception to religion’s winning streak at the court in the last decade: the justices’ rejection in 2018 of a challenge to the first Trump administration’s ban on travel from several predominantly Muslim countries.
That is telling, said Rachel Laser, the president of Americans United for Separation of Church and State. “The law used to bend over backwards to protect religious minorities,” she said. “Now it’s Christians, and oftentimes conservative Christians, who are repeatedly being favored by Supreme Court rulings.”
The court has ruled in recent years that state programs supporting private schools in Maine and Montana must allow parents to choose religious ones, a boon to Christian schools. On April 30, the court will hear arguments on a variation on that question, but with an important twist.
The new case asks whether Oklahoma must use government money to pay for a religious charter school, St. Isidore of Seville Catholic Virtual School, to be operated by the Archdiocese of Oklahoma City and the Diocese of Tulsa and dedicated to infusing its curriculum with Catholic teaching.
The schools in the earlier cases were private. Under Oklahoma law, charter schools are public.
“It would be a sea change to allow public schools, or any schools that are directly funded with tax dollars, to be religious schools,” Ms. Laser said. “You’re talking about your neighborhood school becoming a Sunday school.”
Gentner Drummond, Oklahoma’s attorney general, a Republican, opposed the religious charter school, and the Oklahoma Supreme Court ruled against it, saying it violated the First Amendment’s prohibition of government establishment of religion and the state Constitution’s ban on spending public money to support religious institutions.
In its brief to the U.S. Supreme Court, the school argued that it is like the ones in the cases from Maine and Montana.
St. Isidore “hopes to offer another educational option for Oklahomans, and no student will be compelled to attend St. Isidore,” the brief said. “Rather, the school will receive students, and state funding, only through the private choices of families.”
Douglas Laycock, a law professor at the University of Virginia, said the case, Oklahoma Statewide Charter School Board v. Drummond, No. 24-394, “almost just comes down to an issue of characterization.”
“Is a charter school a public school with private management, or is it a private school with public funding?” he asked.
Justice Amy Coney Barrett recused herself from the case but has not said why. She is a former law professor at Notre Dame, whose religious liberty clinic represents the charter school, and is close friends with Nicole Garnett, a professor there who has assisted St. Isidore.
A second case involving schools, Mahmoud v. Taylor, No. 24-297, will be argued on April 22 and asks whether the Constitution gives parents of public school students the right to have their children excused from classroom discussion of storybooks featuring L.G.B.T.Q. characters and themes.
Montgomery County Public Schools, Maryland’s largest school system, introduced the storybooks in the fall of 2022. For most of that academic year, school administrators gave parents notice when the storybooks were to be discussed, along with the opportunity to have their children excused from those sessions. But in the spring of 2023 the school system announced that it would no longer give parents notice or let them opt out of the classes.
The school system’s lawyers told the justices opt-out requests were hard to administer, led to high student absenteeism and stigmatized and isolated students who believed the books represented them.
Several parents, including Muslims and Roman Catholics, sued, saying the new policy burdened their religious rights.
Michael McConnell, a law professor at Stanford and a former federal appeals court judge who filed a brief supporting the parents, said the curriculum was an assault on religious freedom.
“The underlying issue here is whether public schools should be used as an instrument of ideological persuasion,” he said. “These textbooks are for teaching reading, and to my mind it’s highly objectionable that in choosing which books to teach for reading they don’t choose them on the basis of their literary or grammatical or other value but rather because they’re trying to undermine parental beliefs.”
Professor Driver, who filed a brief supporting the school system, saw it differently. “A decision enabling parents to flyspeck public schools’ curricular decisions would bring the American educational system to a grinding halt,” he said.
The third case, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, No. 24-154, to be argued Monday, asks whether Wisconsin was free to deny a tax exemption to a Catholic charity on the grounds that its activities were not primarily religious.
The Wisconsin Supreme Court ruled that because the charity does not “attempt to imbue program participants with the Catholic faith nor supply any religious materials to program participants or employees,” its work does not qualify for the exemption. Another strike against the charity, the court said, was that it did not limit employment or its services on the basis of religion.
A dissenting justice said the majority had been wrong to “answer theological questions well beyond the judiciary’s purview.”
If history is a reliable guide, the arguments from the charter school, the charity and the parents will receive a friendly reception at the court.
A 2021 study of religion rulings in argued cases since Chief Justice John G. Roberts Jr. joined the court in 2005 found that the nature of its rulings had changed from those issued by the courts led by Chief Justices Earl Warren, Warren E. Burger and William H. Rehnquist.
The study, conducted by Lee Epstein, of Washington University in St. Louis, and Eric Posner, of the University of Chicago, found that the Roberts court ruled in favor of religious people and groups over 83 percent of the time, compared to about 50 percent of the time for other courts since 1953.
“In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations,” they wrote.
The study considered cases that turned on the First Amendment’s religion clauses, but religion has also figured in other cases. In 2023, for instance, the court unanimously ruled in favor of a postal worker who refused to work on his Sabbath under an employment discrimination law. That same year, it split 6-to-3 in favor of a web designer who did not want to create sites for same-sex weddings under the First Amendment’s free speech clause.
The rate of pro-religion rulings from the Roberts court has risen since the study was conducted, to 86 percent, Professor Epstein found. If the court rules in favor of religious claims in all three of the pending cases, the rate will rise again, to 88 percent.
