When the U.S. Supreme Court returned to the bench on the first Monday in October, no explicit church-state separation cases were waiting on the justices’ docket for the start of the 2024-25 term.
But that doesn’t mean religious freedom advocates are breathing easy — there are a handful of cases waiting in the wings that would give the court’s ultra-conservative bloc more opportunities to chip away at church-state separation and the rights and freedoms that depend on it.
“We are bracing ourselves for more rulings in lockstep with the white Christian Nationalist agenda that is becoming more clear to more Americans every day,” Americans United President and CEO Rachel Laser told CNN on the eve of the new term. “When the Roberts court rules on religion, it’s almost always coming down in support of not just religion, but of mainstream Christian interests.”
After several consecutive years of devastating religious freedom rulings from the court, the issue was relatively absent from the court’s docket last term. The two cases Americans United weighed in on were those brought by members of the billion-dollar Shadow Network of Christian Nationalists to continue the attack on abortion rights. Noting that abortion bans and restrictions on reproductive health care are an attempt to enshrine one narrow set of religious beliefs into law, AU joined friend-of-the-court briefs in both cases.
“If America is to make good on its promise of religious freedom, each of us must be free to make our own decisions about our own bodies based on our own beliefs,” Laser said.
Laser made a similar comment in September when AU joined a friend-of-the-court brief in a case the Supreme Court will hear this term — U.S. v. Skrmetti. The federal government and families are challenging Tennessee’s ban on gender-affirming health care for transgender youth. Much like with abortion bans, religious beliefs often are inserted into arguments to restrict the rights and health care of LGBTQ+ people.
In just the last three years, 24 states have banned hormone therapy for trans youth. Some federal courts have found the bans to be unconstitutional in part because they are discriminatory and subject trans youth to unequal treatment compared to cisgender (non-trans) youth who seek similar medical care. But the 6th U.S. Circuit Court of Appeals has allowed bans in Tennessee and Kentucky to remain in effect.
“You don’t have to know about transgender health care to know that these bans are not about medicine — they are about discrimination,” said Jennifer Levi, senior director of transgender and queer rights at GLBTQ Legal Advocates & Defenders, a group involved in the amicus brief AU joined. “They ban safe, effective and widely available medications only when they are prescribed for transgender adolescents. The discrimination baked into these laws is intentional, clear, and devastating.”
Arguments in the case are scheduled for Dec. 4.
Nation’s first religious public school
A case AU is closely watching is Drummond v. Oklahoma Statewide Virtual Charter School Board, one of the lawsuits challenging Oklahoma’s approval of what would be the nation’s first religious public charter school, St. Isidore of Seville Virtual Catholic School.
AU and allies filed the first lawsuit challenging the school’s creation in July 2023. A few months later, Oklahoma Attorney General Gentner Drummond (R) filed a similar challenge directly with the Oklahoma Supreme Court. In June, the state’s high court ruled in Drummond’s case, barring the state from creating or funding a religious public charter school.
However, both the school and the state charter school board appealed to the U.S. Supreme Court in October, asking the justices to take up the case.
AU and its allies — the American Civil Liberties Union, Education Law Center and Freedom From Religion Foundation — issued a joint statement in response to the U.S. Supreme Court petition: “The law is clear: Charter schools are public schools that must be secular and welcome all students. The Oklahoma Supreme Court’s decision was correct and should be allowed to stand because it safeguards public education, religious freedom, and church-state separation.
“Oklahoma taxpayers, including our plaintiffs, should not be forced to fund St. Isidore of Seville Catholic Virtual School, which plans to discriminate against students, families, and staff and indoctrinate students into one religion,” the organizations added. “Turning public schools into Sunday schools would be a dangerous sea change for our democracy.”
Several of the Shadow Network legal groups that push a Christian Nationalist agenda support the school and are involved in the petitions to the U.S. Supreme Court. Representing St. Isidore are lawyers from the University of Notre Dame’s Religious Liberty Clinic, recently the feature of an NBC News profile about its connections to conservative members of the U.S. Supreme Court. Alliance Defending Freedom represents the state charter school board, which includes Oklahoma Superintendent of Public Instruction Ryan Walters. Walters has been separately represented by First Liberty Institute in AU’s lawsuit.
The U.S. Supreme Court has not yet decided whether to take up the case. Meanwhile, in the case AU and allies brought to challenge the school, the parties reached a court-approved agreement to put the case on hold at least until Feb. 1, 2025, while developments in the Drummond case are pending. St. Isidore agreed not to accept charter-school funding from the state or open to students as a charter school during the 2024-25 school year as part of that agreement.
Monetary damages for religious freedom violations
The court has signaled its interest in another case that asks whether people whose religious freedom has been violated by government officials have the right to sue for monetary damages. The latest case involves Damon Landor, a Rastafarian whose knee-length dreadlocks were shaved by Louisiana prison guards in 2020.
While he was incarcerated, Landor, who had been growing his hair for nearly 20 years in accordance with his faith, had taken to carrying a copy of a federal court decision that said Rastafarian prisoners have religious freedom rights to keep their dreadlocks. Prison guards left his hair alone for four months. But a month before the end of his sentence, Landor was transferred to another prison where guards threw his copy of the court decision in the trash, handcuffed him to a chair and shaved his head.
State officials condemned what happened to Landor and insisted the Louisiana Department of Corrections and Public Safety had amended its policies to prevent such violations from happening again. However, when Landor sued, officials argued the law doesn’t allow him to hold prison officials personally liable for the violation and that he’s not entitled to monetary damages.
The 5th U.S. Circuit Court of Appeals agreed with state officials, but several judges on the court called for the U.S. Supreme Court to answer whether the Religious Land Use and Institutionalized Persons Act (RLUIPA) — the law that protects the religious freedom of incarcerated people — allows for monetary damages in the same way that the court has said the Religious Freedom Restoration Act (RFRA), RLUIPA’s sister statute, does.
In a unanimous 8-0 ruling in 2020, the Supreme Court ruled in Tanzin v. Tanvir that RFRA allows plaintiffs to seek monetary damages against federal employees. The case was brought by Muslim men who sued the federal agents who had added them to the no-fly list, allegedly in retaliation for their refusal to spy on other Muslims. (Justice Amy Coney Barrett did not participate in the opinion because the case was argued before she joined the court.)
Americans United had filed a brief in support of the Muslim men in that case. “Money damages against the individual-capacity defendants are now the only way to vindicate respondents’ rights and deter future violations,” AU had noted in a brief joined by eight other religious and civil rights organizations.
Zack Tripp, one of Landor’s attorneys, told The New York Times that RLUIPA must similarly allow for monetary damages.
“Congress passed this law to prevent these sorts of abuses, and especially to protect members of minority faiths,” Tripp said. “The law requires prison officials to respect the religious practices of people who are incarcerated. But without damages, the law has no teeth. It is a right without a remedy, and prison officials can ignore it with impunity.”
Landor’s attorneys have requested the Supreme Court to review his case. On Oct. 7, the court asked the U.S. solicitor general to submit a brief outlining the opinion of the federal government. Although not a guarantee the case will ultimately be taken up, court watchers note the invitation for the solicitor general’s input signals strong interest by at least four justices.
Shadow Network cases in the pipeline
Organizations that are part of the Christian Nationalist Shadow Network have several more cases awaiting on the court’s doorstep. Many have been spearheaded by the Becket Fund, the Christian Nationalist legal group behind cases that resulted in the Supreme Court allowing employers and universities to cite religious beliefs to deny workers and students access to birth control as required by the Affordable Care Act, a taxpayer-funded foster care agency in Philadelphia being allowed to continue discriminating against prospective LGBTQ+ parents, and religious employers being able to call a broader swath of employees “ministers” so they aren’t protected by civil-rights laws.
A few of the cases Becket has asked the court to take up include:
- Mahmoud v. Taylor: Religiously conservative parents in Montgomery County, Md., want to be able to “opt out” their children from being exposed to any stories that include LGBTQ+ characters or themes. So far courts have ruled that it doesn’t violate parents’ religious freedom for their children to learn about the existence of concepts that may not align with their faith.
- Diocese of Albany v. Harris: The Catholic Diocese of Albany and other religious groups object to New York requiring employer-provided health insurance plans to cover medically necessary abortions.
- Apache Stronghold v. U.S.: A coalition representing Indigenous people sued the federal government for trading federal land in Arizona to an international mining company that plans to mine for copper. The land, known as Oak Flat, is viewed as sacred by Western Apaches. They argue the government’s actions violate their religious freedom, as well as an 1852 treaty.
- Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission: Earlier this year, the Wisconsin Supreme Court ruled Catholic Charities is not exempt from paying unemployment taxes because its charitable operations are not primarily religious.
Another case that a member of the Shadow Network recently asked the court to take up is Hittle v. Stockton, a lawsuit brought by First Liberty Institute (the same organization that represented Joe Kennedy, the public high school football coach who wanted to pray with students on the 50-yard line after games).
First Liberty represents Ron Hittle, who was employed as a fire chief for Stockton, Calif., until the city fired him in 2011. The city pointed to his attendance of a religious event during work time and use of a city vehicle to get there, his alleged favoritism of other employees who shared his Christian beliefs, and other violations of city policies and procedures. First Liberty claims he was fired because of his religious beliefs. Lower courts have ruled against Hittle, so First Liberty on Oct. 15 filed a petition asking for Supreme Court review.
It’s unclear which, if any, of these cases the Supreme Court may take up this term. The justices have already declined to review two other cases that deal with church-state separation issues — one out of Michigan asking the court to force the state to fund private religious schools, and one out of Florida dealing with a transit authority’s refusal to display religious ads (an action already invalidated by a lower court).
But there’s no question that Christian Nationalists will keep bringing cases that urge the court to further weaponize religious freedom and undermine church-state separation.
“The free-exercise litigators think they’ve got the votes now and they’re being pretty aggressive about pushing cases up there,” Douglas Laycock, a University of Virginia law professor emeritus, told CNN. “What you’re seeing is a response to the conservatives’ enthusiasm for free exercise.”