Chemerinsky: Religion cases will test whether SCOTUS continues to break down walls separating church, state
Erwin Chemerinsky. (Photo by Jim Block)
In recent years, the Roberts court has dramatically changed the law with regard to the religion clauses of the First Amendment. Again, this term, the U.S. Supreme Court has several cases about the Constitution and religion.
For decades, in dealing with the establishment clause, the court saw it as embodying the words of Thomas Jefferson that there should be a wall separating church and state. Now, though, it is clear that a majority of the justices reject this view. In Kennedy v. Bremerton School District, in 2022, the court said that under the establishment clause, “[T]he line that courts and governments must draw between the permissible and the impermissible has to accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.” It appears that the court’s approach is that only government coercion violates the establishment clause, though the court has not yet provided a definition of what that means.
At the same time, for several decades, the court had taken a minimalist approach to the free exercise clause. In Employment Division v. Smith, in 1990, the court held that the free exercise clause cannot be used to challenge a general law that was not motivated by a desire to interfere with religion. But in a series of cases over the last decade, the court has taken a much more robust approach to protecting free exercise of religion and a majority of the justices have questioned the Smith test. For example, the court has held that it violates free exercise of religion to deny religious schools benefits that are provided to secular private schools. Also, the court invalidated COVID-19 restrictions applied to religious institutions, concluding that free exercise of religion requires that religion be treated as favorably as the most leniently regulated comparable secular activity.
The cases this term before the Supreme Court all involve free exercise clause challenges to government actions.
Catholic Charities Bureau Inc. v. Wisconsin Labor & Industry Review Commission
Quite understandably, the Supreme Court has never attempted to define “religion” for purposes of the First Amendment. In the 1960s, there were some cases about the meaning of religion under the Selective Service Act for purposes of determining who was entitled to be a conscientious objector during the Vietnam War. The court’s approach to the free exercise clause in Employment Division v. Smith, of not providing an exemption to general laws for religion, had the benefit of lessening the need to define what religion is.
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, which was argued Monday (March 31), may require that the court confront the question of how to define what is religious. Wisconsin law provides an exemption from the state’s unemployment tax for “an organization operated primarily for religious purposes.” Under this exemption, churches, religious schools and some religious groups do not have to pay the unemployment taxes. Wisconsin denied exemption this to Catholic Charities, a social ministry arm of each Roman Catholic diocese in Wisconsin.
Catholic Charities argues that this violates its free exercise of religion. It says that its mission is to “carry on the redeeming work of our Lord by reflecting gospel values and the moral teaching of the church.” In its brief it argues, “Put simply, Wisconsin has taken it upon itself to decide activities can be religious and which ones can’t. That is wrong. Wisconsin courts should not be in the business of deciding religious questions.”
The state of Wisconsin, by contrast, echoes the ruling of the Wisconsin Supreme Court, that the activities of Catholic Charities are secular even though its motivations are religious. Wisconsin emphasizes that Catholic Charities is providing social services to those of all faiths and without any religious content. The state says that if it is forced to expand the religious exemption, it likely would have to eliminate it altogether.
Ultimately, the issue before the U.S. Supreme Court is how a state may define what religion is for purposes of a religious exemption under state law.
Mahmoud v. Taylor
The question presented in Mahmoud v. Taylor, to be argued April 22, is “Whether public schools burden parents’ religious exercise when they compel elementary school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.”
In 2022, the Montgomery County School Board in Maryland approved a group of “LGBTQ-inclusive books as part of the English Language Arts Curriculum” for use in the Montgomery County Public Schools. These storybooks present gay and lesbian, transgender and nonbinary characters in various situations. For example, the alphabet primer Pride Puppy! depicts a family whose puppy gets lost amid an LGBTQ pride parade, with each page focused on a letter of the alphabet.
A group of parents brought a challenge contending that it violates free exercise of religion not to provide them notice and the opportunity to opt out of having their children read these books. They rely primarily on the Supreme Court’s decision in Wisconsin v. Yoder, 1972, which held that the free exercise clause prohibits government schools from “substantially interfering with the right of parents to direct the religious upbringing of their children.” In that case, the court ruled that Amish parents had the right to exempt their children from compulsory schooling after the eighth grade.
The 4th U.S. Circuit Court of Appeals rejected the parents’ religious challenge to the Montgomery County curriculum, emphasizing that “the record is threadbare.” The court explained: “Critically, however, none of these declarations provides any information about how any teacher or school employee has actually used any of the storybooks in the parents’ children’s classrooms, how often the storybooks are actually being used, what any child has been taught in conjunction with their use or what conversations have ensued about their themes.” The court stated: “We conclude that the parents have not come forward at this stage with sufficient evidence of a cognizable burden on their free exercise rights to satisfy the requirements of a free exercise claim.”
The Supreme Court granted review, and the issue is of profound significance: Do parents have a right to notice and to have their children opt out of instruction if they believe it would violate their religious beliefs? If so, how far would this extend? Could parents have their children opt out of all instruction about sexuality, of instruction about evolution, of books that include witches or of anything they find objectionable?
Oklahoma Statewide Charter School Board v. Drummond
In a series of cases over the last eight years, the Supreme Court has held that it violates free exercise of religion for the government to deny benefits to a religious school that it provides to a private secular school. In Trinity Lutheran Church of Columbia v. Comer, in 2017, the court held that it was unconstitutional for the state of Missouri to provide aid for surfacing playgrounds to public and secular private schools but not to religious schools. In Espinoza v. Montana Department of Revenue, in 2020, the court ruled that it violates free exercise of religion for Montana to provide a tax credit for those providing assistance to secular private schools but not religious schools. And in Carson v. Makin, in 2022, the court concluded that Maine violated free exercise of religion when it provided funds for children in rural areas without public schools to attend private schools but would not allow the money to be used for religious schools.
Almost every state has charter schools. These are public schools funded by the government but run by private entities. Because they are public schools, state laws require that they be secular.
Oklahoma Statewide Charter School Board v. Drummond, to be argued April 30, involves a challenge by a religious school to the Oklahoma Supreme Court’s refusal to allow it to be a charter school. The question presented is “[w]hether Oklahoma violates the First Amendment’s guarantee of the free exercise of religion when it excludes privately run religious charter schools from the state’s charter-school program because they are religious.”
The Oklahoma Statewide Charter School Board, which certifies charter schools in Oklahoma, would have allowed St. Isidore of Seville, an online Catholic school operated by the Archdiocese of Oklahoma City and Diocese of Tulsa, to be certified as a charter school. But the Oklahoma Supreme Court ruled that this would violate the Oklahoma Constitution.
Recent U.S. Supreme Court decisions have held that the government cannot deny religious schools the benefits it provides secular private schools. But this case goes much further: Does the Constitution require that the government allow religious institutions to create public schools? Would this mean that every religious school could become a public charter school if it wished to do so?
Conclusion
As the Supreme Court has created an increasingly weak establishment clause and an increasingly strong free exercise clause, it was predictable that issues like those presented in these cases would arise. The decisions are likely to have enormous practical consequences as well as providing a sense of how far the court will expand the protections provided by the free exercise clause of the First Amendment.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
