Religious rights are sparking both unanimity and deep divisions on the Supreme Court this term, with one major decision still to come.
On Thursday, all nine justices sided with Catholic Charities Bureau in its tax fight with Wisconsin. But weeks earlier, the court’s 4-4 deadlock handed those same religious interests a loss by refusing to greenlight the nation’s first religious charter school.
Now, advocates are turning their attention to the other major religion case still pending this term, which concerns whether parents have the First Amendment right to opt-out their children from instruction including books with LGBTQ themes.
“The court has been using its Religion Clause cases over the past few years to send the message that everything doesn’t have to be quite so polarized and quite so everybody at each other’s throats,” said Mark Rienzi, the president and CEO of Becket, a religious legal group that represents both the parents and Catholic Charities.
The trio of cases reflect a new burst of activity on the Supreme Court’s religion docket, a major legacy of Chief Justice John Roberts’ tenure.
Research by Lee Epstein, a professor at Washington University in St. Louis, found the Roberts Court has ruled in favor of religious organizations over 83 percent of the time, a significant jump from previous eras.
The decisions have oftentimes protected Christian traditions, a development that critics view as a rightward shift away from a focus on protecting non-mainstream religions.
But on Thursday, the court emerged unanimous.
The nine justices all agreed that Wisconsin violated the First Amendment in denying Catholic Charities a religious exemption from paying state unemployment taxes.
Wisconsin’s top court denied the exemption by finding the charity wasn’t primarily religious, saying it could only qualify if it was trying to proselytize people. Catholic Charities stressed that the Catholic faith forbids misusing works of charity for proselytism.
Justice Sonia Sotomayor authored Thursday’s majority opinion finding Wisconsin unconstitutionally established a government preference for some religious denominations over others.
“There may be hard calls to make in policing that rule, but this is not one,” Sotomayor wrote.
The fact that Sotomayor, one of the court’s three Democratic-appointed justices, wrote the opinion heightened the sense of unity.
“She’s voted with us in several other cases, too, and I think it just shows that it is not the partisan issue that people sometimes try to make it out to be,” said Rienzi.
However, Sotomayor’s opinion notably did not address Catholic Charities’ other arguments, including those related to church autonomy that Justice Clarence Thomas, one the court’s leading conservatives, endorsed in a solo, separate opinion.
Ryan Gardner, senior counsel at First Liberty Institute, which filed a brief backing Catholic Charities, similarly called the unanimity an “encouraging” sign.
“If they can find a way to do that, they want to do that. And that’s why I think you have the opinion written the way that it was. It was written that way so that every justice could feel comfortable signing off on it,” said Gardner.
Supporters and critics of the court’s decision agree it still poses repercussions on cases well beyond the tax context — and even into the culture wars.
Perhaps most immediately, the battle at the Supreme Court will shift from unemployment taxes to abortion.
The justices have a pending request from religious groups, also represented by Becket, to review New York’s mandate that employers’ health care plans cover abortions. The regulation exempts religious organizations only if they inculcate religious values, meaning many faith-based charities must still follow the mandate.
And for the First Liberty Institute, it believes Thursday’s decision bolsters its legal fights in the lower courts. It represents an Ohio church that serves the homeless and an Arizona church that provides food distribution, both embroiled in legal battles with local municipalities that implicate whether the ministries are religious enough.
Thursday’s decision is not the first time the Supreme Court has unanimously handed a win to religious rights advocates.
In 2023, the First Liberty Institute successfully represented a Christian U.S. Postal Service worker who requested a religious accommodation to not work on Sundays.
And two years earlier, the court in a unanimous judgment ruled Philadelphia violated the Free Exercise Clause by refusing to refer children to a Catholic adoption agency because it would not certify same-sex couples to be foster parents.
“People thought that was a very narrow decision at the time, but the way it has sort of been applied since then, it has really reshaped a lot of the way that we think about Free Exercise cases,” said Gardner.
It’s not always kumbaya, however.
Last month, the Supreme Court split evenly on a highly anticipated religious case that concerned whether Oklahoma could establish the nation’s first publicly funded religious charter school.
The 4-4 deadlock meant the effort fizzled. Released just three weeks after the justices’ initial vote behind closed doors, the decision spanned one sentence.
“The judgment is affirmed by an equally divided Court,” it reads.
Though the deadlock means supporters of St. Isidore of Seville Catholic Virtual School are left without a green light, they are hoping they will prevail soon enough.
Justice Amy Coney Barrett, President Trump’s third appointee to the court, recused from the St. Isidore case, which many court watchers believe stemmed from her friendship with a professor at Notre Dame, whose religious liberty clinic represented St. Isidore.
But Barrett could participate in a future case — providing the crucial fifth vote — that presents the same legal question, which poses consequential implications for public education.
Meanwhile, the Supreme Court still has one major religion case left this term.
The justices are reviewing whether Montgomery County, Md., must provide parents an option to opt-out their elementary-aged children from instruction with books that include LGBTQ themes. The group of Muslim, Roman Catholic and Ukrainian Orthodox parents suing say it substantially burdens their First Amendment rights under the Free Exercise Clause.
At oral arguments, the conservative majority appeared sympathetic with the parent’s plea as the court’s three liberal justices raised concerns about where to draw the line.
“Probably, it will be a split decision,” said Gardner, whose group has filed a similar lawsuit on behalf of parents in California.
But he cautioned, “you never know where some of the justices will line up.”
