SCOTUS

Religion and the Law: Supreme Court Cases on Religious Freedom

The rule religious groups have spent 30 years trying to get the Supreme Court to drop is one that treats everyone the same. Four eras of free exercise cases, and what each one decided.

Etalia.ai
Sep 17, 2025
5 min read
Religion, AI-Rewritten, AI-Model-claude-sonnet-5-5

Here is an odd fact about American religious freedom. The rule that religious groups have spent more than 30 years trying to get the Supreme Court to drop is a rule that treats everyone the same. It came from a case about peyote, it was written by one of the Court's most conservative justices, and in 2021 three justices wrote that it should be overruled.

The rule is Employment Division v. Smith, decided in 1990. It says that a law that applies to everyone, and does not single out religion, does not become unconstitutional just because it burdens someone's faith. To see why that is both so contested and so important, it helps to go through the cases in order. They fall into four eras, and the Court's answer to the same question changed in each.

What the First Amendment says, and the question it leaves

The First Amendment has two religion clauses. The Establishment Clause says Congress shall make no law "respecting an establishment of religion." The Free Exercise Clause bars laws "prohibiting the free exercise thereof." Most of the cases below are about the second. The question under it never changes: when a general law collides with someone's religious practice, who gives way?

Era one: belief is free, conduct is not

Reynolds v. United States (1879) was the first major test. George Reynolds, a Mormon, was convicted of bigamy and argued that his religion required plural marriage. Chief Justice Waite wrote that Congress cannot reach what people believe, but it can reach what they do. If it were otherwise, the Court said, every citizen could make himself a law unto himself. That distinction between belief and action set the starting point for more than 80 years.

Cantwell v. Connecticut (1940) settled where the clause applies. Newton Cantwell and his sons, Jehovah's Witnesses, were convicted for soliciting door to door without a license. The Court held that the Fourteenth Amendment makes the Free Exercise Clause binding on the states, not just on Congress, and overturned the conviction.

Era two: the government must justify the burden

In Sherbert v. Verner (1963), Adell Sherbert, a Seventh-day Adventist, was fired for refusing to work on Saturday, then denied unemployment benefits because she would not accept a job that required it. The Court held that when a law burdens religious practice, the state has to show a compelling interest and a narrow way of serving it. That demanding standard gave religious claimants real leverage for the first time.

Wisconsin v. Yoder (1972) is the high-water mark. Amish parents were fined for keeping their children out of school after the eighth grade, because they believed high school would pull the children away from the community's way of life. The Court held that Wisconsin could not enforce its attendance law against them. The state had not shown that its interest required it.

Era three: the turn to neutral laws

The turn came in Employment Division v. Smith (1990). Two men were fired from jobs as drug counselors for using peyote in a ceremony of the Native American Church, and were denied unemployment benefits. Justice Scalia wrote for the Court that the First Amendment does not require religious exemptions from laws that apply to everyone. The compelling-interest test, which had protected Sherbert and the Amish, was set aside for ordinary laws.

Congress answered in 1993 with the Religious Freedom Restoration Act, which restored the compelling-interest test by statute. In City of Boerne v. Flores (1997), the Court held that RFRA exceeds Congress's power as applied to the states.

Era four: equal treatment

With Smith standing, religious claimants found another route, and it has worked well. If a law is not neutral, if it treats religion worse than comparable secular activity, it gets the strict scrutiny that Smith would otherwise deny.

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993) was the model. Hialeah, Florida, passed ordinances after a Santeria church announced plans to open there, and the ordinances banned animal sacrifice while exempting hunting, kosher slaughter and most other killing of animals. The Court struck them down. The text of the laws, and the council's remarks, showed that religion was the target.

The recent cases follow that line. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), Missouri refused a church-run learning center a grant to resurface its playground with recycled tires, solely because it was a church. Chief Justice Roberts wrote that withholding an otherwise available benefit solely on account of religious identity imposes a penalty on free exercise. In Fulton v. City of Philadelphia (2021) the Court held that Philadelphia could not cut off Catholic Social Services from foster-care work for refusing to certify same-sex couples. The city's contract let its commissioner grant exceptions at his discretion, and that mechanism meant the non-discrimination rule was not a neutral, generally applicable one. In Carson v. Makin (2022), Chief Justice Roberts wrote that Maine could not pay tuition assistance at private schools generally while limiting it to "nonsectarian" ones.

The same principle runs through Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission (2025). Wisconsin had denied charities an exemption from its unemployment tax because they neither engaged in proselytization nor served only co-religionists. Justice Sotomayor wrote for a unanimous Court that the state could not sort religious groups that way.

The latest religion case on this list goes further. In Mahmoud v. Taylor (2025), parents in Montgomery County, Maryland, asked to have their children excused from lessons that used newly introduced storybooks. The school board had first allowed opt-outs and then rescinded them. Justice Alito wrote for a 6-3 Court, with Justice Sotomayor dissenting, joined by Justices Kagan and Jackson. The ruling rests on the Yoder line, not the equal-treatment line, which is a reason people are watching it.

The other clause: Establishment

The Establishment Clause cases have moved the same way. American Legion v. American Humanist Association (2019) concerned a 32-foot Latin cross in Bladensburg, Maryland, built as a memorial to the county's soldiers who fell in World War I. The Court let it stay. Kennedy v. Bremerton School District (2022) concerned a high school football coach who knelt to pray at the 50-yard line after games and was placed on paid administrative leave. Justice Gorsuch wrote for the Court that the Constitution protected him, and that the Court had abandoned the old test from Lemon v. Kurtzman.

Employment is the quieter front. In Groff v. DeJoy (2023), a postal worker who would not work Sundays said the Postal Service had to accommodate him. Justice Alito wrote for a unanimous Court that "undue hardship" means an accommodation that would result in substantial increased costs in relation to the conduct of the employer's business. That corrected the reading of an older case, Trans World Airlines v. Hardison, that lower courts had applied.

Why it matters now

Look at the pattern and the opening puzzle is less of a puzzle. Since Smith, the cases religious groups have won have mostly been equal-treatment cases: the government treated religion worse than something comparable. The ones that asked for an exception from a rule everyone else follows have mostly lost, with Mahmoud the notable exception. Whether the Court gives religious claimants a right to exemptions again is the open question in this area of the law. Cases decided after the June 2025 end of the October 2024 term are not on scotus.etalia.ai yet, so this post does not cover them.

Sources

Each case below is on its scotus.etalia.ai page, which links to the opinion.

Updated October 2026.

This post was rewritten with AI (Claude) and reviewed by an editor before publication.

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