How the Supreme Court Is Dismantling the Separation of Church and State

This past term, the U.S. Supreme Court further undermined one of the most sacred tenets of American democracy: the separation of church and state. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Together, these two clauses safeguard religious freedom by ensuring that the government can neither favor nor disfavor a given religion. The American promise of freedom of religion has allowed a panoply of faiths—Christianity, Hinduism, Judaism, Shintoism, Islam, and more—to flourish in this country. Unfortunately, Chief Justice John Roberts’ court has steadily weakened this cherished constitutional principle over the past decade, creating a system in which religion and government are not separate but instead increasingly intertwined.

A majority of current Supreme Court justices now champion a vision of religion that diverges significantly from that of the founders. Instead of ruling that the Constitution requires church and state to be separate, the Roberts court has often held the opposite, repeatedly finding that the government must allow or even fund certain religious activities. The court has also regularly permitted private individuals to force their religious views onto others in the public sphere. In so doing, it has chipped away at the establishment clause in favor of an expansive vision of the free exercise clause. Today, the establishment clause seems to prevent little else than the government explicitly establishing a national religion, while the free exercise clause is so expansive that it permits discrimination and requires government funding for religious activities. Far from separating church and state, the Supreme Court seemingly would prefer that the two operate symbiotically—in clear violation of the founders’ vision for the nation.

This report outlines the history of the Constitution’s religion clauses as well as the Roberts court’s steady weakening of First Amendment protections. It concludes with summaries of the three key religion cases heard by the Supreme Court last term: 1) Mahmoud v. Taylor; 2) Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission; and 3) Oklahoma v. Drummond.

For millennia prior to the founding of the United States, many nations across the world tied religion to government. In fact, in the medieval era, monarchs in Western Europe justified their rule by claiming that they were chosen to rule by God through a principle known as the “divine right of kings.” However, as Christian sects started to divide and multiply, religious conflict and government subjugation of religion became commonplace. In England, Catholics and Protestants were alternately killed or privileged depending on the decade. Over time, this conflict led to multiple wars and the deaths of citizens and monarchs alike. This religious strife and intolerance ultimately inspired many of the original European colonists to set out for the Americas.

Initially, a majority of colonists sought to create religious utopias where their chosen religions could thrive. Many viewed the task of colony building as intrinsically intertwined with religion, as illustrated by John Winthrop’s famous sermon in which he proclaimed that Massachusetts would “be as a city upon a hill. The eyes of all people are upon us.” Colonies often collected taxes to pay for religious institutions and required colonists to attend religious ceremonies. The original colonies were variously Catholic, Protestant, and Quaker, but as revolutionary spirit started to grow, so too did the desire to create a new, secular form of government.

Wary of the religious intolerance that prompted many Europeans to leave their home countries, the founders explicitly sought to limit the role of both religion in government and government in religion. To quote Justice Hugo Black:

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power.

Some members of the founding generation, such as Roger Williams, felt that government corrupted religion, while others, such as Thomas Jefferson, felt that religion corrupted government. Though motivated by different fears, both sides understood the importance of “building a wall of separation between Church & State.” Their efforts culminated in the establishment (“Congress shall make no law respecting an establishment of religion”) and free exercise (“or prohibiting the free exercise thereof”) clauses of the First Amendment.

Over time, two discrete visions of the separation of church and state have emerged: separationist and accommodationist. Under the separationist view, as described by Howard Gillman and Erwin Chemerinsky in their book The Religion Clauses, the establishment clause “create[s] a wall between church and state,” and the free exercise clause holds that the “government should stay out of the business of worship and the internal operations of religious institutions.” Under the accommodationist view, the establishment clause requires the government to “accommodate religion in government and government support for religion,” and the free exercise clause holds that “the government must adopt the approach that imposes the least restriction on religious liberty, even if that practice means exempting religious practitioners from laws that everyone else has to obey.” Put simply, the separationist view is that church and state should not mix, while the accommodationist view requires special treatment for religion.

As illustrated below, these two visions have overlapped at various times in U.S. history, with the Supreme Court previously adopting a separationist view of the establishment clause and an accommodationist view of the free exercise clause. The battle over the appropriate lens through which to interpret the religion clauses is currently being waged at the Supreme Court. As it stands, the court’s far-right majority espouses the accommodationist view for both clauses, meaning that the “wall between church and state” may soon be less a wall than a welcome mat. Before delving into the events of last term, however, it is important first to review the jurisprudential history of the religion clauses. This history illustrates how far the Roberts court has strayed from its predecessors when it comes to the First Amendment.

In 1878, the Supreme Court issued its first religion clause decision in Reynolds v. United States. The court took a “belief versus conduct” approach in Reynolds, finding that the free exercise clause permits freedom of belief but does not allow exemptions from generally applicable laws—in this case, a law prohibiting polygamy. Chief Justice Morrison Waite, writing for a unanimous court, stated: “To permit [an exemption] would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” The Reynolds court’s separationist view of the free exercise clause dominated First Amendment discourse until the mid-20th century.

In Braunfeld v. Brown (1961), the Supreme Court opened the door to the accommodationist approach by holding that a statute can burden religious exercise only when the state simply cannot avoid burdening religion. Braunfeld effectively heightened the standard of review for free exercise cases, requiring a “strict scrutiny”-esque analysis of laws limiting religious conduct. For context, strict scrutiny is the highest constitutional standard of review, requiring courts to ask whether a given law is “‘narrowly tailored’ to further a ‘compelling government interest.’” It is very hard for laws to meet strict scrutiny and survive judicial review. Though in Braunfeld, the Supreme Court did not find that the law burdened free exercise, its strict scrutiny approach led to a steady increase in exemptions for religious conduct, with the court officially adopting strict scrutiny in Sherbert v. Verner (1963).

Nine years later, in Wisconsin v. Yoder (1972), perhaps the most famous accommodationist opinion pre-Roberts court, the justices ruled that a law requiring parents to send their children to school or face fines did not apply to the Amish community, who objected to public schooling on religious grounds. Confusingly, post-Yoder, the court switched back to a separationist approach, routinely ruling against religious exemptions though still ostensibly applying strict scrutiny.

Then, in 1990, the Supreme Court pivoted drastically from the strict scrutiny approach in Employment Division v. Smith. This case involved a challenge to Oregon’s refusal to provide unemployment benefits to Native Americans who were fired due to their religious use of peyote. In an opinion authored by Justice Antonin Scalia, the court held that strict scrutiny need not apply to laws of general applicability and that it should be reserved for laws that single out given religions. This opinion marked a significant departure from the Braunfeld years, during which the court routinely used strict scrutiny to justify granting exemptions to generally applicable laws.

Following Smith, Congress acted quickly to pass the Religious Freedom Restoration Act (RFRA), which aimed to restore the strict scrutiny test. The RFRA was intended to serve as a shield for religious freedom, preventing the government from interfering with Americans’ religious beliefs and practices. However, in the ensuing years, far-right litigants have used the RFRA as a sword to impose their religious beliefs on others in public settings, as discussed in more detail below.

Importantly, the Supreme Court struck down part of the RFRA in City of Boerne v. Flores (1997), finding it unconstitutional as applied to state and local governments. Congress can create legislation to ensure that states abide by the due process and equal protection clauses of the 14th Amendment but only when that legislation is “appropriate.” Put simply, the 14th Amendment holds that Congress cannot fundamentally reinterpret the Constitution or impose new constitutional obligations onto states. In Flores, the Supreme Court found that Congress significantly expanded the scope of the First Amendment through the RFRA. Notably, it did not fully strike down the act, which can still be used to sue the federal government.

Like its sister clause, the establishment clause has been interpreted in various ways throughout the course of U.S. history. The first significant establishment clause decision did not reach the Supreme Court until 1947 with Everson v. Board of Education. Everson involved a New Jersey taxpayer’s challenge to a public program that reimbursed parents for their children’s school transportation costs. Everson, the taxpayer, alleged that this program violated the establishment clause because it reimbursed parents for costs incurred transporting students to Catholic schools. The court disagreed, finding 5-4 that the law did not privilege one religion over another but rather allowed parents of all religions to send their children to school. The court held that the establishment clause must be balanced with the free exercise clause and that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.” Importantly, the court did not hold that the state was required to provide this public benefit; instead, it could provide the benefit so long as it did so neutrally and without regard to religious status. Justice Wiley Rutledge, writing in dissent, stated:

The Amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

In Engel v. Vitale (1962), the Supreme Court held 6-1 that the New York State Board of Regents violated the establishment clause when it allowed public schools to start the day with a prayer. The court found that prayer is a quintessentially religious activity, with Justice Hugo Black writing, “we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.” Justice Black grounded his establishment clause analysis in U.S. history, writing, “this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.”

Nine years later, in 1971, the Supreme Court articulated its first real test for establishment clause cases in Lemon v. Kurtzman. Lemon involved two statutes in Pennsylvania and Rhode Island that allowed public funds to pay for textbooks, teacher salaries, and other supplies at religious schools. Taxpayers in both states sued, alleging that the statutes violated the establishment clause. The court sided with the taxpayers 8-1 on the Rhode Island statute and 8-0 on the Pennsylvania statute. In a separationist opinion authored by Chief Justice Warren E. Burger, the court created a three-pronged test for an establishment clause violation: “First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion … finally, the statute must not foster ‘an excessive government entanglement with religion.’” The Lemon test did not sit well with all members of the court, and many subsequent establishment clause cases do not cite Lemon.

After decades of invoking the establishment clause to justify a strict separation of church and state, the Supreme Court slowly started pivoting back to accommodationism in the 1980s. In Marsh v. Chambers (1983), the court held 6-3 that the Nebraska Legislature’s practice of starting each legislative session with a prayer from a paid chaplain did not violate the establishment clause. Despite only recently adopting the Lemon test, Chief Justice Burger did not cite it in the majority opinion, instead focusing on the history of starting legislative sessions with prayers. According to Burger, the prayers were “simply a tolerable acknowledgment of beliefs widely held among the people of this country.” This historical approach opened the door to more mixing between church and religion, as many of the original colonies were avowedly religious.

Six years later, in Allegheny County v. ACLU, the Supreme Court evaluated the constitutionality of religious displays on government property. The first display was a nativity scene outside the Allegheny County Courthouse in Pittsburgh; the second was a large menorah next to a Christmas tree outside the City-County Building. The nativity scene was in the center of the courthouse and read “Glory to God in the Highest” in Latin, and the menorah was located outside, including a plaque with the mayor’s name and the phrase “salute to liberty.” In this case, the court focused on the endorsement theory, which holds that “the Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from ‘making adherence to a religion relevant in any way to a person’s standing in the political community.’” Using this theory, the court found that the crèche violated the establishment clause but the menorah did not. The crèche was clearly religious and not surrounded by any nonreligious objects, which could have added a more secular tone to the display. The menorah, on the other hand, was situated next to another religion’s symbol, a Christmas tree, and its accompanying plaque referenced “liberty,” not any religious message.

The above cases illustrate just how much the Supreme Court’s establishment clause jurisprudence has varied over the years. In each era, however, the court has both upheld and overturned statutes and practices on establishment clause grounds—with varying degrees of nuance. The Roberts court has been decidedly less nuanced in its religion jurisprudence.

Under the stewardship of Chief Justice John Roberts, the Supreme Court has routinely weakened the separation of church and state in recent years, espousing a frail version of the establishment clause and an overpowered version of the free exercise clause. Effectively, the court has taken the stance that free exercise is paramount and that government support for religion is not unconstitutional; in fact, it may be constitutionally required in certain instances. This radical view of the religion clauses is supported neither by constitutional text nor by history, but over time, the Supreme Court has steadily moved the needle, rewriting the First Amendment to almost ignore the establishment clause. The line of cases from Hobby Lobby in 2014 to Catholic Charities and Mahmoud last term compellingly illustrates how the court has warped the clauses over time.

In Burwell v. Hobby Lobby Stores, Inc. (2014), the Court ruled 5-4 that employers with religious objections to contraception did not need to cover birth control in their employee health plans. This Justice Samuel Alito-authored opinion used the RFRA to expand the free exercise clause, allowing private companies to impose their religious preferences onto their employees. Public pushback from some quarters was swift, but this was only the start of the Roberts court allowing religious individuals and businesses to foist their views on others.

That same year, the Supreme Court ruled 5-4 in Town of Greece v. Galloway that a town’s decision to start almost all meetings with a Christian prayer did not violate the establishment clause. For almost a decade, Greece, New York’s, town board began all monthly meetings with a prayer issued by a Christian minister. Justice Elena Kagan, writing in dissent, highlighted that the town made no effort, except after the lawsuit was filed, to include other religions in the morning prayer. Kagan and her three fellow dissenters claimed that the town’s conduct impermissibly privileged Christianity above all other faiths: “When the citizens of this country approach their government, they do so only as Americans, not as members of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines.”

In 2017, the Supreme Court further eroded the separation of church and state in Trinity Lutheran v. Comer. This 7-2 free exercise decision, authored by Chief Justice Roberts, held that Missouri could not deny a church access to a public benefit that it provided to nonreligious entities. Here, the Missouri government operated a program that provided schools with funding to resurface their playgrounds. Due to restrictions on funding religious organizations, sectarian schools were excluded from the program. One such school sued, alleging that the government violated the free exercise clause by refusing to provide the school with access to this public benefit. In her dissent, Justice Sonia Sotomayor wrote:

The Court today profoundly changes that relationship [between church and state] by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

In another free exercise decision in 2018, Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court ruled in favor of a baker who refused to make a wedding cake for a same-sex couple. The couple visited Masterpiece Cakeshop following their wedding to order a cake for their Colorado celebration. Yet the owner of the shop refused to bake the cake, alleging that same-sex marriage violated his religious beliefs and that making the cake would amount to support for same-sex marriage. The couple then filed a complaint against the owner before the Colorado Civil Rights Commission, alleging that the shop violated Colorado’s anti-discrimination law. The commission sided with the couple, and the bakery sued, alleging First Amendment violations. The 7-2 holding, written by Justice Anthony Kennedy, found that the Colorado Civil Rights Commission expressed impermissible religious animus when it found the baker in violation of the state’s anti-discrimination law and thus violated the free exercise clause.

In 2019, the Supreme Court continued to limit the establishment clause in American Legion v. American Humanist Association. In a 7-2 decision, the court permitted a 32-foot cross to remain on a busy public roundabout in Maryland, finding that the cross was a tribute to those who died in World War I, not a religious symbol. Justice Alito, who authored the majority opinion, went further than any other court previously, stating that there should be a “presumption of constitutionality” when evaluating religious symbols on government property. It is unclear why there should be a presumption of constitutionality when the founders were so wary of government support for religion. Justice Ruth Bader Ginsburg, writing in dissent, stated, “By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion.”

A few years later, Kennedy v. Bremerton School District (2022) involved a confrontation between the establishment and free exercise clauses. High school football coach Joseph Kennedy routinely prayed with his players following football games. His public school district instructed him to stop doing so, as it feared this was an establishment clause violation. Kennedy was then placed on leave, and the school district elected not to renew his contract. He then sued the school district, alleging that it violated his free exercise and free speech rights. This case fell squarely in line with the public school prayer endorsement cases cited above, but instead of ruling that Kennedy’s prayers violated the establishment clause, the Supreme Court sided 6-3 with the football coach, finding that the district infringed on Kennedy’s free exercise rights when it requested that he stop praying on the football field. Justice Neil Gorsuch’s majority opinion stated that the court abandoned Lemon and its endorsement test long ago and that establishment clause cases should now be judged based on an analysis of “historical practices and understandings,” significantly weakening the establishment clause.

In 2022, the Supreme Court further extended Trinity Lutheran in Carson v. Makin, holding 6-3 that if a state funds tuition for students attending secular schools, it must also fund tuition for students attending religious schools. Carson involved a Maine program that provided parents with tuition assistance if they lived in an area without public schools. Parents seeking to enroll their children in religious schools sued, as Maine refused to fund tuition for religious schools—understandably believing this would violate the Constitution. Chief Justice Roberts delivered the opinion, finding that the state needed to subsidize the students’ religious education.

As the above cases attest, the Roberts court has steadily narrowed the separation between church and state over the past decade. With each case, the Supreme Court has rewritten the religion clauses in clear violation of the intent of the framers. Last term saw this concerning trend continue.

This past year, the Supreme Court ruled on three significant religion clause cases: Mahmoud v. Taylor, Catholic Charities v. Wisconsin Labor and Industry Review Commission, and Oklahoma v. Drummond. Though some of the decisions are narrow in scope or uphold a modicum of separation between church and state, the court is clearly positioning itself to further elevate an accommodationist view of the free exercise clause at the expense of the establishment clause.

Three years ago, the Montgomery County Public Schools in Maryland added a series of books featuring LGBTQ+ individuals and their families to the pre-kindergarten through 12th-grade curricula. The district initially had an opt-out policy, allowing parents to remove their children from select class days but soon realized the policy was functionally untenable, as the opt-outs led to a high level of absences and a significant administrative burden on teachers. Furthermore, there was concern that the opt-out policy promoted the social stigmatization and isolation of LGBTQ+ students and students with LGBTQ+ families.

A group of parents brought suit to bring back the opt-out option, allowing them to prevent their elementary-age children from reading the challenged books. The parents claimed that removing the opt-out amounted to the social indoctrination of their children and thus violated the free exercise clause. The district pushed back on this claim, stating that the parents’ argument conflated mere exposure to ideas with indoctrination. Reading stories with LGBTQ+ characters or themes is no more indoctrination than seeing an LGBTQ+ couple out in the world. Visibility is not propaganda; it is reality. Furthermore, research on the experiences of LGBTQ+ children and their caregivers in K-12 education shows that they face discrimination and exclusion in schools absent concrete inclusion efforts.

In an opinion authored by Justice Alito, the Supreme Court ruled 6-3 that the district unconstitutionally infringed on the parents’ free exercise rights by removing the opt-out option. The majority also found that the district’s actions were subject to strict scrutiny, the highest tier of scrutiny, and that the school could not show a sufficiently compelling interest to justify removing the opt-out policy. According to Alito, “‘[W]e have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.’ … And we have held that those rights are violated by government policies that ‘substantially interfer[e] with the religious development’ of children.” Under the court’s reasoning, exposure to LGBTQ+ books “substantially interfer[es] with the religious development” of children. In the 10 years since the Supreme Court decided Obergefell, it is profoundly disheartening to see how much it has backtracked in its LGBTQ+ rights jurisprudence.

Parents across the United States should be concerned by the slippery slope of an opt-out education. The Supreme Court’s holding may allow children to be removed from myriad foundational, widely accepted lessons on topics ranging from evolution to the civil rights and women’s rights movements. Opt-out requirements also would likely force teachers and school administrators to alter their curricula to avoid potentially controversial material. As Justice Sotomayor noted in her dissent, districts may begin to remove books that some parents find objectionable to avoid the hassle of opt-out requirements, effectively engaging in self-censorship. This will hurt the intellectual progression of students. Deborah Caldwell-Stone, director of the American Library Association’s Office for Intellectual Freedom, asserts that “students who can find books about their experience or lives or that offer alternative perspectives, have far better educational outcomes than when censorship is used in school to indicate one viewpoint is not acceptable.”

Herein lies the trouble with the accommodationist view of the freedom of religion: It curbs the rights of those not being accommodated. The freedom of one person should not infringe upon the rights of another, but Mahmoud allows for just that. Public school children across the country will now receive an education tailored not to their needs but to the demands of their classmates’ parents. To quote Justice Sotomayor:

Today’s ruling threatens the very essence of public education. The Court, in effect, constitutionalizes a parental veto power over curricular choices long left to the democratic process and local administrators. That decision guts our free exercise precedent and strikes at the core premise of public schools: that children may come together to learn not the teachings of a particular faith, but a range of concepts and views that reflect our entire society. Exposure to new ideas has always been a vital part of that project, until now.

Wisconsin allows houses of worship, religious schools, and many other religious organizations to be exempt from its state tax that funds unemployment benefits. Catholic Charities Bureau (CCB), however, has been subject to these taxes since 1972, when the organization “self-reported the nature of its operations as ‘charitable,’ ‘educational,’ and ‘rehabilitative,’ not ‘religious.’” In 2016, CCB asked the Department of Workforce Development for an exemption from the unemployment benefits tax; the request was denied. The state government determined the group was not eligible for the exemption because, although it was associated with the Catholic Church, CCB did not operate “primarily for religious reasons.”

CCB argued that this was a violation of the free exercise clause. The state determined that because CCB’s activities were not rooted in worship or proselytization, the organization was not considered “religious,” but CCB asserts that its charitable activities are derived from its religious beliefs. Furthermore, Catholic teachings forbid proselytization when doing charitable acts, so CCB believed it was excluded for a dogmatic difference. CCB then brought suit alleging that the department’s decision violated the establishment clause. The case bounced from court to court, finally landing at the Wisconsin Supreme Court. The state supreme court affirmed the state government’s decision, ruling that CCB should not be exempt as it primarily provides secular services and does not “attempt to imbue program participants with the Catholic faith nor supply any religious materials.”

CCB then appealed this decision to the U.S. Supreme Court, which ruled unanimously that Wisconsin must exempt CCB from its state unemployment tax. The justices held that the state’s decision violated the free exercise clause because in excluding CCB, the state did not “maintain ‘neutrality between religion and religion.’” According to the court, exclusions based on theological differences amount to “denominational discrimination.” In an opinion authored by Justice Sotomayor, the court held, “When the government distinguishes among religions based on theological differences in their provision of services, it imposes a denominational preference that must satisfy the highest level of judicial scrutiny.” Accordingly, the court ruled that the Department of Workforce Development’s actions did not meet strict scrutiny.

The precedent set in this case may lead to an abuse of exemptions nationwide. In Catholic Charities, the Supreme Court broadened the definition of religious activities, or at least opened the door for other jurisdictions to do so. This may lead to fringe groups whose activities are vaguely religious receiving religious exemptions from generally applicable laws and policies.

In 2023, an Oklahoma state school board approved a charter school application by St. Isidore of Seville Catholic Virtual School, paving the way for it to become the “first publicly-funded religious charter school” in the country. Charter schools are publicly funded but run by private groups, often a management company. In this case, St. Isidore would be managed by the Archdiocese of Oklahoma City. Though at times controversial, the existence of charter schools is not at issue in this case; Drummond solely concerns the existence of religious charter schools.

St. Isidore argued that excluding the school from the charter program amounts to unconstitutional religious discrimination and that the creation of a religious public school does not equate to state sponsorship of religion. Yet this perspective is ill-founded. Charter schools are public schools—plain and simple—and under a reasonable separationist interpretation of the establishment clause, public schools cannot be religious. Federal law classifies charter schools as public schools, which must be “nonsectarian in [their] programs, admissions policies, employment practices, and all other operations.”

In 2024, the Oklahoma Supreme Court found the concept of a religious charter school to be unconstitutional at both the state and federal levels. Given the fact that “St. Isidore is an instrument of the Catholic church,” the court held that allowing it to operate as a charter school “would create a slippery slope and what the [state constitutional] framers warned against—the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.” St. Isidore then appealed the Oklahoma Supreme Court’s decision to the U.S. Supreme Court.

On May 22, 2025, the Supreme Court deadlocked 4-4 on Drummond, thereby leaving the Oklahoma Supreme Court decision in place. Leaders of various faith backgrounds applauded the outcome. Rabbi David Saperstein, director emeritus of the Religious Action Center of Reform Judaism, stated:

Church-state separation, as well as such investment in the American public school system, has, over a number of past generations, allowed countless minority communities, including Jews, to have access to the learning so vital to contributing our society and to building flourishing lives in the United States … To incorporate the teaching of religion into a publicly-funded school’s practices and curriculum, such as in the case of the Catholic St. Isidore, will lead to discrimination against students with diverse beliefs. Religious freedom means allowing students and their families to make their own decisions about faith, without concern for their ability to receive an education. We must continue to ensure that all public schools, including charter schools, remain secular and open to all students.

Though the outcome was less severe than many anticipated, the fact that four justices did not view this case as an open and shut violation of the establishment clause is extremely concerning. This stance flies in the face of the U.S. Constitution as well as decades of court precedent. The Rev. Dr. Shannon Fleck, an Oklahoma faith leader, told the Center for American Progress in response to this holding:*

Although the decision by the U.S. Supreme Court can be considered a win, in that it reverts back to the Oklahoma Supreme Court’s 7-1 decision, it is alarming the court was not more united in the fact that this case was, at its core, unconstitutional. In their split decision, the country can clearly see the dramatic shift of the court away from the firm constitutionality of the Establishment Clause and the Free Exercise Clause, towards a potential future where these guardrails are lost in our nation. Our founders intentionally established a secular government, in order for all people to be free from the constraints of state sponsored religion, which seeks theological enforcement, rather than theological freedom.

Both Mahmoud and Drummond are part of a broader religious legal movement aiming to eliminate the divide between church and state. The Becket Fund for Religious Liberty, which served as counsel for the petitioners in Mahmoud, is seemingly at the heart of the far-right religious encroachment movement. Becket also served as counsel in Hobby Lobby and submitted amicus briefs in various high-profile religion cases, such as Trinity Lutheran and Masterpiece Cakeshop. The law firm is deeply intertwined with the broader conservative legal movement that has ensnared the Supreme Court; Leonard Leo, the man behind the modern conservative legal movement, serves on Becket’s board and has provided funding to the firm. Becket is also part of the State Policy Network, an organization associated with the billionaire Koch brothers, who are known for their “dark money” backing of conservative interests.

Drummond similarly has ties to the religious, far-right legal machine. A group of law professors at the Religious Liberty Clinic at the University of Notre Dame have planned to utilize a potential religious charter school as a method to reshape the Constitution—a blueprint that was the impetus for Drummond. Justices Amy Coney Barrett and Samuel Alito have ties to the Notre Dame clinic Justice Barrett recused herself from the case, likely due to her close personal ties with a Notre Dame professor that advised St. Isidore. Mahmoud and Drummond are therefore not only the culmination of the Supreme Court’s yearslong corrosion of the establishment clause but another example of how ultraconservative outside interests are influencing the American legal landscape and rewriting the Constitution.

Though there were many era-defining issues in front of the Supreme Court last term, 2025 may well be remembered as one of the most significant years for the erosion of religious freedom in the United States’ history. Even though the court stopped short of approving publicly funded religious charter schools, the 4-4 decision is a stark and undeniable sign of what is to come. Importantly, none of the cases cited herein prohibit people or institutions from freely practicing their religion in their private, daily lives. Rather, this court has gone out of its way to allow individuals and institutions to impose their religious beliefs and restrictions onto others.

Accommodationists will likely support more Supreme Court challenges on this issue, and the court must correct its ahistorical and anti-constitutional course. Enforcement of the establishment clause cannot be sacrificed to an overly broad interpretation of free exercise. Importantly, the preservation of religious freedom cannot rely entirely on the conscience of the Roberts court. Lawmakers must also reform the Religious Freedom and Restoration Act. In 2016, then-Rep. Joe Kennedy III (D-MA) and Rep. Bobby Scott (D-VA) introduced the Do No Harm Act, which would hold that the RFRA cannot overcome federal civil rights protections, such as Title VII. The act was reintroduced this past March and would go a long way to restoring the religious freedoms that have been lost at the hands of the Roberts court.

The separation of church and state is not a mere theory or constitutional surplusage; it protects the right of all Americans to worship freely and to follow their religions without fear of repression or forced compliance. To quote the Rev. Dr. Fleck:

Religion and faith should never be enforced by a nation’s government, and there are endless historic (and present) examples of how such enforcement goes awry. The United States was a unique “first” in ensuring this protection for its people, and the richness of faith has been made better by the absolute freedom of individuals to choose it for themselves.

At their core, the cases discussed in this report are not solely about religion and education. They are about what type of country America should be moving forward.

* The authors communicated with the Rev. Dr. Fleck via email on June 16, 2025.