How the Supreme Court could still reshape religious liberty with decisions in two cases

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How the Supreme Court could still reshape religious liberty with decisions in two cases
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SCOTUS takes up case on LGBTQ+, inclusive books in schools
Demonstrators on both sides protested as the Supreme Court heard a school district's case on parents' rights and LGBTQ+ books.
The U.S. Supreme Court deadlocked 4-4 on May 22, blocking religious charter schools.
But the court could still reshape religious liberty in the United States with decisions in two other cases.
One deals with whether parents in Maryland can opt-out of curriculum they find objectionable on religious grounds.
The other centers on a Wisconsin case and whether a Catholic charity must contribute to the state's unemployment system.
The U.S. Supreme Court's May 22 deadlock prevented the establishment of the nation's first religious charter school.
A decision allowing such an institution would have dramatically overhauled long-standing norms about public education and religious freedom in the United States.
But decisions in two other cases centered on religion and the First Amendment are still ahead, and experts say those, too, could reshape what religious liberty means across the nation.
The cases – one dealing with public school curriculum and the other with tax exemptions for religious organizations – are "very significant" for different reasons, but all are coming before justices amid a broader trend of the court intervening to protect the free exercise of religion, said Daniel Conkle, a professor of law emeritus at Indiana University's Maurer School of Law.
Plus, there's been an 'almost complete ideological switch on the court' in recent years, said Eugene Volokh, a professor of law emeritus at the UCLA School of Law. He and other experts attributed the shift to a conservative-majority that currently includes three Trump appointees.
The court now tends to have a 'very minimalist view of the establishment clause and a very robust view of the free exercise clause,' said Erwin Chemerinsky, a law professor and dean of Berkeley Law.
In the First Amendment, one clause prohibits the government from establishing a religion and the other bans the government from interfering with citizens' free practice of religion as long as, according to a federal court analysis, "the practice does not run afoul of 'public morals' or a 'compelling' governmental interest."
The court's rulings in the remaining religious liberty cases will indicate whether that trend will continue.
Maryland parents fight for right to opt kids out of LGBTQ school materials
The school case surrounds parents' objections in Maryland to books with LBGTQ+ characters that Montgomery County Public Schools, which is based in the Washington metro area, added to its curriculum in 2022.
Though the district initially accommodated parents who did not want their children to be exposed to such materials, it later prohibited the opt-outs.
Parents sued the district, lost their case and ultimately appealed to the Supreme Court, which heard oral arguments in April.
Volokh, who co-signed an amicus brief with Yale law professor Justin Driver arguing against a constitutional right to parental opt-outs, said it is 'going to be potentially a very important case.'
A Supreme Court ruling in favor of the parents could open the floodgates to countless other religious objections to public education materials, which Duke law professor Richard Katskee said stands to be "incredibly disruptive."
'Anybody who's run a school knows you can't provide individualized, tailored instruction to every kid based on that kid's parents' religious viewpoints,' Katskee said.
There would also be logistical questions to address, including who's responsible for supervising students if they are made to leave their classroom during certain lessons and how to select alternative material that is inoffensive to their parents.
Conkle pointed to the Supreme Court's 1972 ruling in Wisconsin v. Yoder, which found that a state law requiring Amish parents to send their children to public school until at least the age of 16 violated the parents' free exercise right.
Though the Maryland case also revolves around the extent to which religious parents can shape their children's education in a public school setting, Conkle said a decision in favor of the parents could create a 'significantly different and greater administrative burden' than the ruling in Yoder did.
There would be a greater risk of "administrative headaches" in granting parents the right to opt their children out of any element of public school curriculum they find objectionable, he said, than there is in allowing them to simply opt out of the public school system altogether.
'Can public schools really function in that kind of cafeteria-line way?' Chemerinsky said.
Justice Elena Kagan questioned the broad scope of opt-outs during oral arguments. She asked what the implications would be if the court affirmed a constitutional right to effectively "opt out for anything" in public education.
Lawyer Eric Baxter, who is representing the petitioners in the case, was skeptical that such a ruling would lead to countless lawsuits.
"We just don't find these kinds of cases or these kinds of burdens where parents are bringing extreme examples," he said. "You know, parents with kids really don't have a lot of time to be suing the school board, and they're looking for a reasonable compromise."
An amicus brief filed by Protect the First Foundation and other groups argued in support of an opt-out right, saying parents "live in fear that the religious, moral or ethical principles they attempt to instill in their children at home will simply be unwound at school."
A brief from groups including the Church of Jesus Christ of Latter-day Saints and the Southern Baptist Convention's Ethics and Religious Liberty Commission said public schools notifying parents about new reading material and allowing them to opt their children out were "modest accommodations."
They argued the district had violated the parents' right to free exercise of their religion, saying that the petitioners have a "religious duty to be their children's primary guardians in matters concerning marriage, sexuality and gender."
Wisconsin unemployment tax case could be 'quite important'
The tax exemption case centers on whether a Catholic charity operated by a diocese in Wisconsin is required to contribute to the state's unemployment system.
The state's supreme court previously ruled that Catholic Charities, operated by the Diocese of Superior in northwest Wisconsin, was not exempt from paying an unemployment tax like the larger Catholic Church is.
Religious organizations do not have to pay such taxes, but the state found the charity's work was too secular in nature to warrant a similar exemption.
Justices across the political spectrum "appeared sympathetic" to the notion that that was effectively religious discrimination against Catholic Charities, SCOTUSblog reported.
The issue is 'conceptually quite important,' Volokh said, though its application would depend on states' tax rules and may not have implications as far-reaching as the Maryland case.
Most states, however, have laws similar to Wisconsin's that exempt church-controlled organizations "operated primarily for religious purposes" from contributing to unemployment programs, USA TODAY previously reported.
The extent to which the charity's work could be considered religious was debated among the justices during oral arguments in March.
Justice Brett Kavanaugh said that the law appears to emphasize "why they do it, not what they do," while Justice Ketanji Brown Jackson said what matters is actions, not intentions.
"There are lots of hard questions in this area ... but I thought it was pretty fundamental that we don't treat some religions better than other religions," Kagan said.
Impact of cases ultimately depends on how court's rulings are written
Meanwhile, experts agreed the court's deadlock in the Oklahoma case leaves room for the question of religious charter schools to return to the court's docket in the future.
Chemerinsky said it is "hard to overstate the importance of this issue," which epitomizes the court's shift to a wider application of the free exercise clause.
"I think the only conclusion to be drawn is that when the issue comes back to the court, it will all depend on Justice Barrett's views," he said, referencing Amy Coney Barrett's recusal from the case.
But when it comes to the two other religion cases currently before the court, experts said their impact will ultimately depend on how the rulings are written.
'The broader the rulings, the more destructive they are to public education and to religious freedom for us all,' Katskee said.
Contributing: Maureen Groppe
USA TODAY'S coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners. Funders do not provide editorial input.