How the Supreme Court remade religious liberty in the Christian right’s image
· Vox
The Republican Party’s supermajority on the Supreme Court was barely a month old when the justices handed down one of the most consequential religion decisions of the last several decades. It was Amy Coney Barrett’s first significant vote as a justice.
The issue in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) was whether churches and other houses of worship were exempt from Covid-era restrictions on attendance. At the height of the pandemic, New York imposed strict limits on how many people could attend worship services at the same time — a rule that steered straight into the emerging partisan divide over whether pandemic restrictions had gone too far — although these restrictions were actually less stringent than the rules imposed on similar secular venues like theaters and lecture halls.
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Just months earlier, a 5-4 Court had upheld similar restrictions in California, with Republican Chief Justice John Roberts joining the Court’s Democrats. Although Roberts typically votes with his fellow Republicans in religion cases, he worried that the judiciary “lacks the background, competence, and expertise to assess public health” and decide life or death matters like how to halt the spread of Covid. The Court’s other four Republicans dissented, but this was before Barrett joined the Court, so they were still in the minority.
But the new majority’s decision in Roman Catholic Diocese rejected this restrained approach, and the decision fundamentally shifted the Court’s approach to lawsuits seeking religious exemptions from state laws. Before Republicans gained their supermajority on the Court, the justices gave states a fair amount of leeway to navigate the fraught political questions that arise when someone exercises their faith in a way that can harm other people, or limit their legal rights.
But now the justices typically make these calls themselves, and they usually do so in favor of religious conservatives. As a result, under the current Supreme Court, one of the Constitution’s most difficult balancing acts — the task of weighing when one person’s religious beliefs should overcome another person’s freedoms — has toppled over on the side of religious individuals and groups, often allowing them to violate the freedoms of others. This is especially true when lawsuits pit religious conservatives against people exercising sexual freedoms such as the right to use birth control or to marry a person of the same sex.
Prior to Roman Catholic Diocese, the rule was that religious institutions must comply with state law, so long as the state does not single people of faith out for inferior treatment. If a state closed all venues where people gather in auditorium-like settings, that was considered constitutional, even though some of those venues are churches. The courts would only get involved if a state tried to, say, close mosques but not movie theaters.
But Roman Catholic Diocese effectively ended that regime. The new majority held that churches may only be subject to the least restrictive rules that apply to any secular business, even if that business bears little resemblance to a house of worship. Indeed, Roman Catholic Diocese indicated that churches must be treated the same as outdoor facilities like “camp grounds” or “garages” where the risk of transmission, compared to a church, was minimal.
It was a clear sign of where the Court’s new majority wanted to take its religion cases. Under this majority, lawsuits brought by plaintiffs seeking religious exemptions from the law have largely been used to resolve cultural disputes between Democratic and Republican constituencies in favor of the latter.
This Court’s religion cases, in other words, fit a pattern that is also found in its decisions on topics as diverse as voting rights, abortion, race, and the question of whether Present Donald Trump is subject to US law. The Republican justices seek to advance policy goals that are popular within their political party and unpopular among Democrats, and they aren’t afraid to overrule a wide range of foundational Supreme Court precedents in order to do so.
More broadly, the Court’s new approach to religion threatens to disrupt public schools’ ability to operate, undercut many anti-discrimination laws, and potentially turn every future conflict between cultural liberals and the religious right into a constitutional case that must be resolved by the Supreme Court.
Conflicts between religious and secular visions of America are inevitable under the Constitution
Many of the Supreme Court’s religion cases are driven by two separate clauses in the Constitution that often pull in opposing directions. The First Amendment contains two provisions governing religion, the clause protecting “free exercise” of faith, and a clause prohibiting the government from making any law “respecting an establishment of religion.” The first provision guarantees everyone the right to practice their faith, while the latter was historically understood to prohibit the government from trying to advance a particular religious belief.
As the Supreme Court said in 1971, there is an “internal tension” between these two provisions — in part because it is inevitable that the government will make decisions that conflict with many people’s sincere religious beliefs. Taxes fund wars that many Americans believe are sinful. Public schools teach values that may be at odds with what their students hear in their temples, churches, synagogues, and mosques. Not long after Congress prohibited racial discrimination by restaurants in 1964, the owner of a South Carolina barbecue joint claimed that he could not comply because serving Black people violated his white supremacist religion (he lost in the Supreme Court).
Before Roberts was crowned as leader of America’s judiciary, the Court often resolved this tension by deferring to democratically elected officials. The Court permitted states to subsidize religious schools, but did not require it. It gave people who object to laws on religious grounds some exemptions from those laws, but did not allow these exemptions to give religious business owners an unfair advantage against their competitors. As the Court said in Locke v. Davey (2004), there must be some “play in the joints” between the competing values espoused by the Constitution’s two religion clauses.
But the current Court, which often seeks to centralize power within itself, has pushed hard to take away states’ ability to resolve some of these tensions, and instead resolves them itself. Under the old regime, blue states would sometimes operate their schools, or otherwise conduct their affairs, in ways that upset religious conservatives. And that was okay because that’s how things work in a multistate democracy.
This Court’s religion policies are both anti-federalist and anti-democratic. They restrict Colorado’s ability to bar anti-LGBTQ discrimination by religious business owners, and they force Maine to fund religious schools that label gay people “deviants” and “perverted.” These policies seek to impose a red-state vision on all 50 states, and, in some cases, they may go even further than that — requiring the government to subsidize religion in ways that even very conservative states reject.
The Republican justices, in other words, have taken two vague constitutional provisions that espouse sometimes-conflicting values, and that reasonably can be read in many ways, and used them to impose their own values on the entire nation. The primary effects of these decisions are twofold: This Court often elevates religious freedom over other kinds of freedom, and it is rapidly tearing down the wall between church and state.
Religious freedom vs. others’ rights: The tug-of-war over the free exercise clause
The 20th-century Court cases that laid the groundwork for many modern debates over the Constitution’s free exercise clause are a bit of a muddle.
In the 1960s, the Court used expansive language to describe the scope of this clause, and how easy it should be for religious plaintiffs to seek exemptions from complying with the law. Sherbert v. Verner (1963) held that laws that burden someone’s faith must “be justified by a ‘compelling state interest in the regulation of a subject within the State’s constitutional power to regulate.’” As any law student who has passed their first semester of constitutional law will recognize, this “compelling state interest” language is associated with a legal test known as “strict scrutiny,” the most demanding standard that courts apply in constitutional cases. Thus, Sherbert seemed to hold that nearly everyone who seeks a religious exemption from a state or federal law should receive one.
But the Court soon grew uncomfortable with the implications of this broad language — should people who claim that God does not want them to pay taxes, for example, really be exempt from the obligation to do so? — and began to place limits on who could get exemptions.
The Court has ruled at least three times in favor of religious conservatives who sought an exemption from state laws or municipal policies that prohibit discrimination against LGBTQ people.
The expansive and easily available religious exemptions that Sherbert seemed to call for never actually came about. A 1992 study by legal scholar James Ryan found that federal appeals courts heard 97 free exercise of religion cases that applied Sherbert’s compelling interest test between 1980 and 1990, and they rejected 85 of those cases.
In United States v. Lee (1982), the Supreme Court rejected an employer’s demand for a religious exemption from paying Social Security taxes. And, in Alamo Foundation v. Secretary of Labor (1985), it ruled against a religious cult whose members worked in commercial businesses for no pay — the cult claimed that it should be exempt from minimum wage laws.
Both decisions were animated by a concern that a too-expansive reading of Sherbert would allow businesses that claimed religious exemptions to gain unfair advantages over their competitors. As the Court held in Lee, “when followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”
But then the Supreme Court went too far.
In Employment Division v. Smith (1990), the objectors were two Native American men who lost their jobs and were denied employment benefits by the state of Oregon, because they used the drug peyote during a religious ceremony. The Court said that no one was exempt from any law so long as it applied equally to religious and nonreligious people alike.
The decision triggered instant backlash, with Sen. Edward Kennedy (D-MA) warning that Smith could lead to the government controlling “the selection of priests and ministers” and barring “the use of wine in communion service.” It’s likely that Smith was so widely disliked because the justices picked the worst possible case to put their foot down against religious objectors. The two men’s participation in a religious ritual did not injure anyone else. And the Court’s suggestion that the government may ban Native American religious practices smacked of colonialism.
Congress attempted, semi-successfully, to overrule that case when it enacted the Religious Freedom Restoration Act of 1993 (RFRA).
RFRA sought to “restore the compelling interest test as set forth in Sherbert … and Wisconsin v. Yoder,” a 1972 case establishing that Amish communities may educate their own teenage children instead of sending them to public high schools. The law, in other words, was intended to be a reset button, returning to the pre-Smith status quo when plaintiffs seeking religious exemptions were more likely to prevail.
But achieving that goal required answering a difficult question: What did the Religious Freedom Restoration Act actually seek to restore? Was it the expansive reading of Sherbert that courts never actually implemented — ie., that nearly everyone who seeks a religious exemption should get one — or the actual practice that existed prior to Smith, which was far more restrained?
By the time Burwell v. Hobby Lobby (2014) reached the justices, the two major political parties both had divergent answers to this question. That case asked whether employers who object to contraception on religious grounds could refuse to provide their employees with health plans that cover birth control — despite a federal regulation establishing that these workers had a right to contraceptive coverage. The central question in Hobby Lobby, in other words, was whether one person’s religion may be invoked to diminish another person’s rights.
Most of the justices, the ones appointed by Republican presidents, answered this question with a resounding “yes.”
Dissenting in Hobby Lobby, Democratic Justice Ruth Bader Ginsburg laid out her political party’s concern that one person’s rights should not be used to diminish another’s. She rejected the view that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.”
But there were five Republicans and only four Democrats on the Court when Hobby Lobby was decided, so Ginsburg’s view did not prevail. Justice Samuel Alito’s majority opinion says that RFRA imposes an “exceptionally demanding” burden on the government when it wishes to enforce a law against a religious objector, and it ruled that a federal regulation requiring employers to offer contraceptive care in their health plans does not overcome this burden.
Yet even Alito seemed to recoil at the most expansive reading of Sherbert. His opinion concedes that “allowing tax-payers to withhold a portion of their tax obligations on religious grounds would lead to chaos.” So at least some aspects of Lee, the decision holding that private businesses must follow the same laws as their competitors, remain good law.
After Hobby Lobby, the Republican Party’s position appears to be that religious objections trump laws that embrace a more liberal view of sexuality, or that otherwise resolve cultural conflicts between Democratic and Republican constituencies, but people of faith may not claim an exemption from literally every single law. At the very least, everyone still has to pay taxes.
Since Hobby Lobby, this agenda has come to define the Court’s religious liberty cases, including a number of recent ones that limit state governments’ ability to navigate political conflicts between religious conservatives and gay or trans people. While these cases are technically distinct from Hobby Lobby because RFRA only benefits plaintiffs who object to federal (that is, not state) laws, they also track the result in Hobby Lobby.
The Court has ruled at least three times, for example, in favor of religious conservatives who sought an exemption from state laws or municipal policies that prohibit discrimination against LGBTQ people.
The Roberts Court, in other words, inherited a muddled mess of precedents governing when religious objectors may seek exemptions from the law, and much of this area of the law remains fairly muddled. Thus far, for example, this Court has not revealed whether it wishes to overrule cases like Alamo Foundation, that protect the rights of workers — though when it took up a case in 2025 that could have called Alamo Foundation into question, the Court did not do so.
But one bit of clarity that the current Court has provided is that, when the interests of religious conservatives conflict with the interests of queer people, queer people lose.
The Roberts Court has used education cases to tear down the wall separating church and state
Many of the Court’s cases involving religion in public schools also empower religious conservatives in cultural fights against LGBTQ Americans. In Mahmoud v. Taylor (2025), for example, the Republican majority held that religious parents who object to books with gay or trans characters must be allowed to opt their children out of lessons that use such books. And, in Mirabelli v. Bonta (2026), the Republican justices appeared to hold that the Constitution requires public school teachers to out trans students to their parents, even if those students ask the teachers to keep their gender identity a secret.
But this Court has also advanced another project concerning religion, particularly in its cases about religion and education — dismantling the very idea that church and state must be separated.
The First Amendment’s establishment clause — which prohibits the government from making any law establishing a religion — was long understood to require a degree of separation between government and religion. The Roberts Court hasn’t simply abandoned this reading of the establishment clause; it’s indicated that the very idea of separation between church and state is unconstitutional.
For much of the 20th century, the Supreme Court maintained that the wall separating church and state was quite high. In Everson v. Board of Education (1947), for example, the Court declared that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
The Court abandoned this approach nearly a quarter century ago, in its 5-4 decision in Zelman v. Simmons-Harris (2002). But Zelman merely held that states could offer vouchers that can pay for tuition at private religious schools if they want to, not that they were required to do so.
One thing that is emphatically not forbidden by the current Court is government funding of religious institutions that many Americans find offensive.
Similarly, before Chief Justice John Roberts joined the Court in 2005, the Court generally insisted that public schools must remain neutral on religion. When schools promote a religious view, according to Lee v. Weisman (1992), that places “subtle and indirect” pressure on students to conform to that view, and leaves the student with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”
Yet, while Lee was consistent with mid-20th-century precedents regarding religion in schools, the consensus favoring government neutrality on religion was already fading by the early 1990s. Lee was a 5-4 decision, and its author, the moderate conservative Justice Anthony Kennedy, often argued that his more liberal colleagues read the establishment clause too expansively. Three years before Lee, for example, Kennedy dissented from a decision barring a county from displaying a Nativity scene in its courthouse. This decision, Kennedy wrote, “reflects an unjustified hostility toward religion.”
This idea — that government neutrality toward religion is itself a form of hostility against people of faith — could often be found in conservative critiques of the Court’s establishment clause decisions from this era. In a 1989 essay that foreshadowed many of the Roberts Court’s later decisions, legal scholar (and future federal judge) Michael McConnell made the then-audacious argument that the Constitution requires the government to subsidize religious schools.
The idea is that states typically tax all of their residents to pay for public schooling, but only some children actually attend these schools. Other families choose to pay out of their own pockets for private religious education, while still other families would prefer to send their children to a religious school but cannot afford it. This familiar system, where public schools are available to everyone and private schools are only available to people who can pay the tuition, McConnell claimed, is a form of discrimination against religious people.
“That some parents wish their children to receive education in a religious environment should not deprive them of their fair share of the public resources devoted to education,” McConnell wrote. They pay the same taxes as families who send their kids to public schools. And so, McConnell argued, these religious families should be allowed to use that tax revenue to pay for their child’s private religious education.
Something close to the vision McConnell laid out in this 1989 essay is now the law. The seminal case is Carson v. Makin (2022), which involved a Maine program that provides private school vouchers for students in sparsely populated areas where it is not cost-efficient for the state to operate a public school.
Maine law provides that these vouchers may only be used at “nonsectarian” schools, and not religious ones. But, according to Roberts’s majority opinion in the decision, a system that “pays tuition for certain students at private schools — so long as the schools are not religious” is “discrimination against religion.” Carson, in other words, turns the old rule from Everson on its head. What was once forbidden is now mandated.
More broadly, the Court’s Republicans have ground the establishment clause down to such a tiny nub that little of it remains. For many years, the Court read that clause to forbid the government from advancing a particular religious view, but the Court overruled the older cases prohibiting government endorsements of religion in Kennedy v. Bremerton School District (2022), and they replaced them with something much narrower. Under this Court’s new test, the government can only violate the establishment clause by making “a religious observance compulsory” or otherwise coercing nonbelievers to engage in a “formal religious exercise.”
So the government cannot arrest you if you skip church services. Nor can a government official hold a gun to your head and force you to declare that Jesus is your personal lord and savior. But it is not clear that, under this Court’s approach to the establishment clause, anything else is forbidden. One thing that is emphatically not forbidden by the current Court — indeed, under cases like Carson, it is now required in many states — is government funding of religious institutions that many Americans find offensive.
A plaintiff in Carson, according to Maine’s brief in that case, wanted the state to pay for tuition at a school that requires teachers to sign a statement agreeing that “God recognize[s] homosexuals and other deviants as perverted.” Previous federal court cases involved schools that teach girls they have a religious obligation to be subservient to their future husbands, or that prohibited Black students from having romantic relationships with white students. Under the Roberts Court’s new rules, taxpayers who find these views abhorrent — or who may even object to them on religious grounds — must nonetheless pay for tuition at schools that teach these values.
McConnell criticized the old regime for taxing religious parents to pay for secular education they find objectionable, but the converse is also true about the current regime — it taxes secular parents to pay for religious education that many Americans also find objectionable.
One nationwide solution
The unfortunate reality is that, in a pluralistic society, it is impossible to come up with a legal regime that won’t impose obligations on anyone that they object to on religious grounds. If a nation taxes citizens, some of them will object to how that money is spent. If it provides public schools, some families will object to the values taught in those schools. And if it changes which values are taught, some other families will object to the new lessons.
The Roberts Court’s solution to these inevitable conflicts has largely been to resolve them in ways that favor members of the Republican Party’s coalition, such as religious conservatives, that burden members of the Democratic Party’s coalition, such as LGBTQ people, and that advance longtime Republican Party goals such as making private school vouchers widely available.
That’s certainly one way to do constitutional law. The GOP controls the Supreme Court, and to the victor go the spoils.
But it is far from clear why many of these decisions should be made by a handful of unelected lawyers in black robes, especially in a nation that purports to be a democracy — and that also purports to be a federation of many diverse states. There was a lot of wisdom in Zelman’s approach, which allowed Maine to devise an education policy that makes sense for Maine and Alabama to devise an education policy that makes sense for Alabama.
At the very least, cases like Zelman did not claim that the Constitution, with its two vague and often-contradictory approaches to religion, calls for one nationwide solution to the question of how to run a country made up of people of many faiths.