A trio of religion cases marks Spring on the Supreme Court’s argument docket

After a brief hiatus, the U.S. Supreme Court soon will jump back into an area of law likely to be a legacy of the Roberts Court—religion.

The justices will hear arguments this spring in a trio of separate cases involving the First Amendment’s Establishment and Free Exercise clauses. The cases arrive at the Court with very different contexts: denial of a state tax exemption; parental rights in school curriculums, and America’s first religious charter school.

The Roberts Court’s conservative majority seems to have a somewhat insatiable appetite for religion cases, particularly those involving the Free Exercise clause. Some scholars who follow the Court’s religion decisions closely believe the majority has elevated that clause above the Establishment clause by showing little concern for government entanglement with religion.

Those scholars note a shift that began in the 1990s away from protecting non-mainstream religions from government favoring mainstream religions and their ideas and policies, and towards protecting mainstream Christian religions or organizations from secular laws and boundaries between government and religion.

The trio of religion cases this term will become important pieces of the overall picture of the Roberts Court’s view of religion, and one of the three in particular could work a sea change in American education.

Not surprisingly, two legal organizations quite familiar to the justices brought the cases to the high court. The Alliance Defending Freedom and the Brennan Center for Religious Liberty, acutely aware of the court’s sympathetic conservative majority, have been successful in presenting and arguing the free exercise issues in a number of recent cases.

The Cases

The justices will hear the first of the religion clause trio on March 31. The case, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission, is an appeal by Catholic Charities of a Wisconsin Supreme Court decision upholding a denial of an exemption from the state’s unemployment tax.

The state court held that Catholic Charities (an arm of the Catholic diocese) was not “operated primarily for religious purposes” as required for the tax exemption under the state statute, and its activities, instead, were “primarily charitable and secular” rather than religious. The court said Catholic Charities and its sub-entities provided charitable benefits to all persons, not just Catholics, employed non-Catholics and did not proselytize those it served.

Catholic Charities and the solicitor general of the United States argue that the state court was wrong in its analysis of what the state law requires. “The statutory text makes clear that the inquiry focuses on whether the organization actually operates primarily for religious reasons, not on the nature of its activities or on whether another organization could undertake the same activities for nonreligious reasons.”

They also argue that the court decision violates the Establishment and Free Exercise clauses because it invites inquiries into whether an act is “intrinsically religious or nonreligious.” That reasoning, they add, “would permit government officials or judges to second-guess the sufficiency of religious values, inspect practitioners’ adherence to religious doctrine, and discriminate among various faiths.”

The other two religion clause cases will be argued in late April. In 2023, a group of parents of different religious backgrounds sued the Montgomery County, Maryland, public school board when it eliminated notice and opt-out options for parents who did not want their children participating in lessons involving LGBTQ-inclusive “Storybooks” in the English Language arts curriculum. The books featured characters and themes related to sexual orientation and gender identity.

The parents argued that the denial of notice and opt-out violated their free exercise of religion and their parental rights. The lower federal appellate court disagreed, saying on the “scant  record” before it, the parents failed to show that the exposure to the Storybooks compelled them to change their religious beliefs or conduct.

In Mahmoud v. Taylor, to be argued April 22, the parents argue that under the appellate court’s reasoning “parents cannot be heard until after the damage has been done to their children. But there is no unringing that bell—by then, innocence will be lost and beliefs undermined. New government-imposed orthodoxy about what children are ‘supposed’ to think about gender and sexuality is not a constitutional basis to sideline a child’s own parents.”

The school board counters that the parents want to unsettle “a decades-old consensus that parents who choose to send their children to public school are not deprived of their right to freely exercise their religion simply because their children are exposed to curricular materials the parents find offensive.”

The final case in this trilogy is Oklahoma Statewide Charter School Board v. Drummond, to be argued April 30. The Oklahoma constitution requires the state to establish a system of public schools open to all children in the state and “free from sectarian control.” A state law also authorizes the creation of public charter schools which are overseen by three governmental bodies.

Oklahoma Attorney General Gentner Drummond said that the state charter school board violated the state and U.S. constitutions and Oklahoma law when it approved a contract with the St. Isidore of Seville Virtual Charter School Inc. to establish a state-funded, religious charter school, the St. Isidore of Seville Virtual Charter School. St. Isidore planned to operate the charter school as a Catholic school.

The Oklahoma Supreme Court agreed with Drummond. The state court said, “the expenditure of state funds for St. Isidore’s operations constitutes the use of state funds for the benefit and support of the Catholic church,” and that violates the “plain terms” of the state constitution.

The court also said that “enforcing the St. Isidore contract would create a slippery slope and what the framers warned against– the destruction of Oklahomans’ freedom to practice religion without fear of governmental intervention.”

St. Isidore argues that the state court decision “requires St. Isidore to ‘disavow its religious character’ before it can operate a charter school, thus ‘imposing a penalty on the free exercise of religion.’ “This harms religious schools and religious parents who wish to send their children to schools that align with their values.”

There will be much more to say about the religion trio after arguments and the justices’ decisions. Each is worth tuning into the arguments as these cases almost always reveal more about how the individual justices view the relationship between religion and government.

Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.