In the span of eight days in April, the Supreme Court of the United States (SCOTUS) heard oral argument on two important cases involving the religion clauses of the First Amendment: Mahmoud v. Taylor (argued April 22), and St. Isidore of Seville Catholic Virtual School v. Drummond (argued April 30). Both cases, which will be decided in late June or early July, test the inherent tension between the First Amendment’s “free exercise” and “establishment” clauses. But they also raise the perennial question of whether that tension is really a contradiction. Do the two clauses affirm discrete values that are mutually exclusive in their public policy applications?
Scholars of the First Amendment disagree on the answer to the question. Most do agree, however, that SCOTUS religion clause jurisprudence is a jumble of contradictory judgments and opinions. As I argued in my book, “The American Myth of Religious Freedom,” First Amendment case law is “(p)erhaps the most confused and confusing legal tradition” in the history of SCOTUS. The two pending cases before the court are yet another affirmation of that assertion.
Considering the barrels of ink and forests of trees that have been exhausted examining their meaning, the religion clauses are remarkably short and (seemingly) straightforward: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Written and ratified at a time when some states officially supported churches through tax revenue, the original purpose of the First Amendment was to insulate those states’ religious subsidy laws from federal interference. In other words, the “no establishment” clause of the First Amendment permitted states to have “established” religions.
That meaning was later abrogated by SCOTUS’s “incorporation” of the First Amendment into the “privileges or immunities” clause of the Fourteenth Amendment: “no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In Cantwell v. Connecticut (1940), SCOTUS ruled that this Fourteenth Amendment provision invalidates any states’ laws that interfere with individual religious liberty. And in Everson v. Board of Education (1947), the court similarly held that the Fourteenth Amendment prohibits states from enforcing laws that amount to an establishment of religion. Taken together, these two cases make every state religious liberty or establishment issue a federal one, subject to the jurisdiction of the U.S. Supreme Court.
A ‘play in the joints’ between religion clauses
But here is the rub. In many First Amendment religion clause cases, SCOTUS has wrestled with how enforcing the “free exercise” clause might render judgments that necessarily violate the “[no] establishment clause.” Or they have asked whether rendering a “no establishment” ruling might infringe free exercise. This tension was expressly acknowledged in the 1970 Supreme Court case Walz v. Tax Commission of City of New York. In the court’s opinion of the case, then Chief Justice Warren Burger coined the phrase “play in the joints” to try to account for the tension inherent in the two religion clauses of the First Amendment to the U.S. Constitution.
In the Walz case, a rental property owner sued the City of New York, arguing that tax exemptions for religious institutions are a violation of the establishment clause. Walz argued that because churches and other exempt religious institutions receive the benefit of tax revenue in the form of fire, police, emergency and utility services, they should pay property taxes like nonexempt entities. To favor churches with the exemption, Waltz argued, amounts to state “establishment” of religion.
Writing for a 7-1 majority, Chief Justice Burger argued that New York’s tax exemption policy amounted to a “minimal and remote involvement between church and state,” and thus did not constitute an establishment of religion. “[W]e will not tolerate either governmentally established religion or governmental interference with religion,” he wrote. But, he contended, “there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” The benevolent neutrality produced by the play in the joints, the chief justice concluded, is “deeply embedded in the fabric of our national life.”
Of course, the Walz decision did not resolve the tension between the two religious clauses of the First Amendment. Rather, using more of a historical argument than a legal one, the Supreme Court rendered a decision that probably amounts to a violation of both clauses. Tax exemptions are not different in their effect from tax subsidies. Indeed, exemptions and subsidies are functionally equivalent. Thus, if tax subsidies are an “establishment” of religion, so must be exemptions. On the other hand, however, Walz’s argument that he was being forced to support religious institutions with which he disagreed looks awfully like infringement of free exercise. The Walz case is not an outlier, as the two April 2025 cases once again demonstrate.
The two cases before the court
In Mahmoud v. Taylor, six parents of elementary school children (two Muslim, three Catholic, and one Eastern Orthodox) sued Montgomery County, Maryland, over the use of controversial books in the school curriculum. The books at issue advocate the normalization of same-sex marriage, gender ideology and sexual fetishes. Initially, the school district allowed parents to opt their children out of class when the books were read. But when so many students were opting out that the classroom was becoming empty, the school revoked the “opt out” policy without notifying the children’s parents. When the parents discovered this, they sued under the First Amendment, claiming the books constitute advocacy of moral and religious opinions that violate their own free exercise of religion. If the court finds for the parents (which the oral argument seemed to indicate will happen), that will be a victory for free exercise. But won’t such a ruling amount to endorsing the religious viewpoints of the parents, as Montgomery County argued?
The second case, St. Isidore of Seville Catholic Virtual School v. Drummond, is an even sharper example of the tension between the two religion clauses. The state of Oklahoma has established a program encouraging the development of charter schools by funding them from general tax revenue. As long as they meet minimum curricular standards, the charter schools may emphasize various themes or interests. For example, one school might emphasize STEM, another agriculture and a third environmental science. These schools are independent from management by the state. Their boards, faculty and administration are all self-appointed.
The anti-Catholic attorney general of Oklahoma, Gentner Drummond, filed a lawsuit against the Oklahoma entity overseeing the charter school program, arguing that the St. Isidore contract is an establishment of religion. The Oklahoma Supreme Court ruled in Drummond’s favor and ordered that the St. Isidore contract be rescinded. St. Isidore appealed to SCOTUS. Like Mahmoud v. Taylor, the St. Isidore case again demonstrates the tension between the two religion clauses of the First Amendment. In oral arguments, Drummond’s attorney contended that the contract with St. Isidore is a violation of both clauses. He argued that taxpayer funding of the Catholic school is an establishment of religion and infringes the free exercise of his fellow anti-Catholic Oklahomans.
How will the court decide?
The outcome of the St. Isidore case is more difficult to predict than Mahmoud. Justice Amy Coney Barrett recused herself from this case, leaving only eight justices to decide it. In oral argument, four justices (Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh) seemed prepared to rule in favor of St. Isidore. Two (Ketanji Brown Jackson and Sonia Sotomayor) clearly will rule against the school.
In prior similar cases, Chief Justice John Roberts has been a staunch defender of programs similar to St. Isidore. But he asked questions in the oral argument that cause me to wonder if he might see this one as involving too much “entanglement” of the state with the religious school. And while Justice Elena Kagan often votes with the “liberal” wing of the court, it was not clear that she is leaning that way in this case. She seemed more concerned with trying to find a place to draw a line for government funds being used for schools like St. Isidore, rather than summarily ruling against them. Roberts’ and Kagan’s votes are crucial because a 4-to-4 outcome would let the Oklahoma Supreme Court decision stand.
In both Mahmoud v. Taylor and St. Isidore of Seville Catholic Virtual School v. Drummond, the Supreme Court will once again have to deal with the “play in the joints” between the two religion clauses. Will the court come to a conclusion of “benevolent neutrality,” favoring St. Isidore’s right to establish a charter school? Or will it conclude that these cases exceed neutrality, amounting to establishment of religion? In either event, these cases once again illustrate that the seemingly straightforward words of the religion clauses of the First Amendment are anything but.
