The Volokh Conspiracy
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Religion at the Supreme Court
Three Cases from OT 2024
Last month, the Supreme Court wrapped up its October 2024 Term, which included three church-state decisions. Each touched on long-running issues—public funding for religious schools, the definition of "religious" for purposes of exemptions, and parental rights in public education. But only one case, Mahmoud v. Taylor, resulted in a major ruling. The two others, for different reasons, turned out to be less eventful.
Start with Oklahoma Statewide Charter School Board v. Drummond, a case that could have clarified whether religious charter schools are permissible under the Establishment Clause. The Oklahoma Supreme Court had barred a proposed Catholic charter school, St. Isidore, reasoning that it qualified as a state actor. St. Isidore argued it was more akin to a private contractor participating in a public program—like in Espinoza and Carson, two earlier school funding cases—and thus eligible for equal treatment.
The Supreme Court granted cert, but Justice Barrett recused herself—most likely because Notre Dame's Religious Liberty Clinic was deeply involved in the litigation. That led to a 4–4 split, affirming the Oklahoma ruling without setting precedent. Had Justice Barrett participated, she likely would have sided with the conservatives, and the case might have opened the door to religious charter schools nationwide. As it stands, the issue remains unresolved and will likely return.
Catholic Charities Bureau v. Wisconsin Labor and Industry Review Commission also failed to result in a major holding. The case concerned tax exemptions for religious organizations. Wisconsin exempts nonprofits that operate "primarily for religious purposes," but denied the exemption to certain Catholic social service agencies because, as matter of belief, they didn't proselytize or limit aid to co-religionists, and so could not be considered to operate for "religious" purposes.
The Court unanimously rejected that reasoning. Writing for the Court, Justice Sotomayor explained that Wisconsin's test amounted to theological discrimination—treating some religious groups less favorably because of their faith commitments. The Court's narrow decision avoided broader questions about when religious exemptions are constitutionally required or how to define religious exercise under the Free Exercise Clause.
Then there's Mahmoud v. Taylor, a 6–3 decision that does qualify as a major ruling. The case involved a challenge to a Maryland school district's decision to eliminate opt-outs for elementary students from LGBTQ+-inclusive storybooks. Initially, the district allowed opt-outs but later rescinded the policy and stopped notifying parents when the materials would be used. Parents from several faiths sued, arguing the policy violated their Free Exercise rights.
Writing for the majority, Justice Alito agreed. The Court found that the policy substantially burdened parents' ability to direct their children's religious upbringing—since the curriculum endorsed normative messages on sexuality and gender that directly conflicted with religious teachings. Teachers were encouraged to affirm those messages and even correct students who dissented. The Court likened this to psychological coercion, particularly in the context of young children.
The majority grounded its analysis in Wisconsin v. Yoder, the 1972 case where the Court sided with Amish parents seeking to exempt their children from high school attendance. Yoder has often been treated as a doctrinal one-off. But here, the Court gave it new life. The curriculum in Mahmoud, Alito wrote, similarly placed religious families in the position of having to undo what the state was teaching—without any meaningful ability to opt out.
The Court rejected the school district's strict scrutiny defense. While the district cited its interest in fostering an inclusive learning environment, the Court noted that the district allowed opt-outs in other contexts. That inconsistency undermined the district's claim of a compelling interest pursued by the least restrictive means.
Perhaps the most interesting feature of Mahmoud is its framing of coercion. In earlier school prayer cases like Lee v. Weisman and Kennedy v. Bremerton School District, progressives warned against subtle pressures in public schools, while conservatives were more dismissive. Here, the roles are reversed. The conservative majority stresses how children can be pressured to conform to state-endorsed views on sensitive topics, while the progressive dissent insists that exposure to different viewpoints is educational, not coercive.
Whether Mahmoud signals a broader revival of Yoder, a new era of parental rights litigation, or a redrawing of the boundary between neutrality and indoctrination remains to be seen. But for now, it stands as the most important church-state ruling last term—and a sign that the Court may be rethinking how constitutional rights play out in public schools.
