Don’t be misled about U.S. Supreme Court decisions on religious liberty, Americans United warned 18 federal agencies in a May 15 letter.
The letter cited a recent presidential memorandum issued by President Donald Trump that “encourages the unlawful repeal of rules without any process under dubious interpretations of certain recent U.S. Supreme Court cases.”
Americans United for Separation of Church and State is a staunch defender of First Amendment rights and advocates a traditional view of religious liberty — unlike modern conservative evangelicals who favor religious liberty for them but not for others.
Rachel Laser
“President Trump is intentionally misinterpreting recent Supreme Court decisions in order to advance a Christian nationalist agenda,” said Rachel Laser, president of Americans United. “Trump is bypassing the law in his haste to funnel public money into religion while at the same time exempting religious institutions from laws and regulations aimed at protecting everyone’s civil rights. That’s not what these Supreme Court decisions said, and it’s also not what our Constitution says about church-state separation. Trump’s lawlessness will undermine religious freedom, which is neither a license to harm others nor to destroy the rule of law.”
Trump’s April 9 order claims to be about “promoting economic growth and American innovation” and cites 10 recent Supreme Court decisions he believes are not properly understood by “unelected bureaucrats.”
Among those 10 are Carson v. Makin from 2022, which held that certain school voucher programs must be open to religious schools, and Roman Catholic Diocese of Brooklyn v. Cuomo from 2020, which struck down public health measures during the pandemic.
Trump directs agencies to repeal rules and regulations he deems “unlawful” in light of Supreme Court decisions. And those changes should be made without the required notice-and-comment rulemaking policies, he said, because “retaining and enforcing facially unlawful regulations is clearly contrary to the public interest.”
In a fact sheet accompanying the executive order, Trump spoke of the two religious liberty cases:
- “Carson v. Makin held that a law excluding religious schools from participating in Maine’s school-voucher program violated the Free Exercise Clause. Agencies accordingly must review their regulations to ensure equal treatment of religious institutions vis-à-vis secular institutions for purposes of funding and access to public benefits.”
- “Roman Cath. Diocese of Brooklyn v. Cuomo struck down New York’s Covid-era occupancy restrictions on churches and synagogues because they were uniquely harsher than those that applied to “essential” businesses — such as acupuncture facilities. Each agency should review its regulations to ensure at least equal treatment of religious institutions vis-à-vis secular institutions for regulatory purposes.”
Americans United called these “flawed two-sentence interpretations of these cases.”
Of Carson, the AU letter explains: “Carson’s scope is limited to government-funded programs that do not violate the Establishment Clause — essentially indirect-aid programs. Indirect aid is where an entity receives federal financial assistance because of a genuine and independent choice of a beneficiary, such as through vouchers or certificates. The only discussions of the Establishment Clause in Carson consist of explanations that the Maine program is an indirect aid program, and thus nothing in Carson alters the fundamental Establishment Clause limits that apply to direct-aid programs, where the government selects and provides support directly to entities, through grants, contracts, subgrants, subcontracts and cooperative agreements.”
Of Diocese of Brooklyn, the AU letter explains this case dealt with “extraordinary circumstances” of the pandemic and limitations on in-person worship at churches and synagogues.
“Yet the case was a straightforward application of the long-standing constitutional principle that laws that restrict religious exercise must either be neutral and generally applicable or satisfy a strict scrutiny test,” the letter explains. “While the government may not single out and unfairly burden religion, religious freedom does not authorize religious exemptions that harm others or undermine other significant interests.”
Trump and his administration have repeatedly advocated a view of religious liberty that favors the free expression of evangelical Christians over the rights of other Christians and other faith groups.
The AU letters went to the departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Justice, Labor, State, Treasury, and Veterans Affairs; the Environmental Protection Agency; the Equal Employment Opportunity Commission; the Federal Emergency Management Agency; the Office of Management and Budget; and the Small Business Administration.
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