Who Protects Religious Liberty? Judicial Power, Free Exercise, and Civic Thought

Abstract

This paper examines the Supreme Court’s jurisprudence on the First Amendment protection of the Free Exercise of religion by focusing on the Court’s judicial role to provide civic education in America’s constitutional principles. It argues that the Court’s current Free Exercise jurisprudence has ignored the Court’s teaching role by favoring brightline tests that fail to apply constitutional principles to the circumstances of each case. In these cases, the Court has refused to model for citizens how to reflect on constitutional principles and carefully apply them to new circumstances. This hesitancy reflects a greater debate over whether the judiciary or the legislature is the best protection for religious liberty and the proper educator on constitutional rights. Despite the Court’s constitutional role as teacher on constitutional rights, there are inherent limits to its authority to educate on religion given the liberal nature of the American regime. The Court limits itself to legal questions affecting religion and leaves religious doctrine and its truth outside of its cognizance in order to restrain its educative function to the proper constitutional limits. The Court’s Free Exercise jurisprudence thus demonstrates the potential and limits for the Court to protect religious liberty and educate citizens on religious freedom.

1. Introduction

Much has been said on the decline of American civic knowledge and the need for a renewal of civic education in American political principles (Carrese 2024; Cooper 2024; McBrayer 2024; Sikkenga and Davenport 2024). One fruitful avenue yet to be fully explored is the role of the United States Supreme Court within the constitutional order as a source of civic education. The Court has an institutional basis to publicly teach through its opinions in legal cases. Through its insulation from popular passions and its special expertise, the judiciary is institutionally equipped to educate citizens on constitutional principles and necessary republican virtues (Lerner 1967). Justices have long understood themselves as teachers providing for American civic education on the Constitution (Flaherty Staab 2025). Given the current Court’s priorities, this topic quickly intersects with another promising subject for civic thought: the place of religion within an American regime dedicated to the protection of individual rights. The Court’s contemporary jurisprudence on the First Amendment’s guarantee against governmental restrictions of the free exercise of religion1 confronts this very question and provides a testing ground for the Court’s teaching role. Unfortunately, in the area of Free Exercise jurisprudence, the Court has largely been failing its role as educator. A Supreme Court that wants to educate citizens about their Free Exercise rights must forsake categorical brightlines in favor of a judgment that applies constitutional principles to each case while limiting itself to questions within the judicial capacity. At its best, the Court can fulfill its institutional role of protecting rights in legal cases by applying judgment to teach citizens the principle of religious liberty while respecting the limits on its legal authority by avoiding fundamental religious questions that only individuals can address.

The status of religious liberty in American law is currently obscured by a convoluted jurisprudential debate over how to interpret the First Amendment’s Free Exercise Clause. This clause has been interpreted in two primary ways: either that government can restrict the free exercise of religion only when it proves a law is narrowly tailored to meet a compelling state interest or that the First Amendment does not create religious exemptions from generally applicable laws that happen to indirectly restrict religion. The Supreme Court’s Free Exercise jurisprudence has been a ping-pong ball vacillating between these two positions over the last several decades. In this essay, I have no intention of settling this debate. Instead, I want to approach the question from a different angle. Rather than focus on the most faithful interpretation of the original meaning of the Free Exercise Clause, I want to examine what the nature of the judicial function can tell us about the Court’s role in deciding Free Exercise cases and educating the general public on religion’s role in the public sphere. My intention is not to supplant the rich debate over the meaning of the Free Exercise Clause but to supplement it by bringing in considerations of how the Court as an institution can address the delicate question of religion within the American constitutional order. The Free Exercise debate is not only about how best to interpret the First Amendment but is also a debate over the judicial function. It is a debate over how much discretion judges should have in deciding cases, whether the judiciary is the main protector of individual rights, and when judges can examine religious questions.

2. The Current State of Free Exercise Jurisprudence

The Supreme Court’s Free Exercise jurisprudence has been marked by a conflict between dueling tests. The first contender is the “compelling state interest” test clearly announced in the 1963 unemployment compensation case Sherbert v. Verner2 that government limits on religious activity must be narrowly tailored to achieve a state interest of the highest order, such as public safety. This Sherbert test was officially overruled in the Court’s 1990 decision Employment Division of Oregon v. Smith concerning whether drug counselors who consumed the hallucinogenic drug peyote in a Native American religious ritual could be denied unemployment compensation. Smith replaced the compelling state interest test with a general applicability test that the First Amendment does not create religious exemptions from generally applicable laws that happen to indirectly affect religion.3

Smith was controversial from the moment it was decided and immediately engendered criticism (Laycock 1990; McConnell 1990a). Yet Smith was not announcing an entirely new test but returning to an earlier standard announced in Minersville School District v. Gobitis in 1940. Gobitis dealt with a mandatory school flag salute requirement that infringed on the religious beliefs of Jehovah’s Witness students who objected to the flag salute as worshipping a graven image. In Gobitis, the Court ruled that there are no individual religious exemptions from general laws and that the government had a rational basis of national unity to justify the flag salute.4 Gobitis itself was rapidly overturned by the Court just three years later in West Virginia Board of Education v. Barnette, where a comparable flag salute mandate was struck down as violating the First Amendment free speech and free exercise rights of Jehovah’s Witness students because the government lacked any proof of a “grave and immediate danger” to justify the requirement.5 Thus, Oregon v. Smith marked a return to the logic of Gobitis and replaced the compelling interest standard present in Barnette and Sherbert with the test that it had originally supplanted.

Smith officially remains the governing precedent for Free Exercise caselaw but is on life support. The idea that religious liberty can be circumscribed as long as it is done by a neutral and generally applicable law has never sat well with much of the Supreme Court. The Court has applied Smith while ruling for religious liberty in circumstances that fail to meet Smith’s standards of neutrality and general applicability. In Church of the Lukumi Babalu Aye v. Hialeah, the Court invalidated an ordinance clearly designed to prevent a Santeria church from engaging in animal sacrifice because the law was not general or neutral. This meant that strict scrutiny was applied, where the regulation failed because it was not narrowly tailored to meet a compelling interest.6 More recently, in 2018’s Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court avoided touching Smith in deciding whether a baker with sincere religious objections to same-sex marriage could be compelled to provide a cake for a same-sex wedding under Colorado’s generally applicable and neutral public accommodations law. Instead, the Court ruled that the baker’s rights were violated when he was treated with open hostility instead of neutrality by the Colorado Civil Rights Commission.7 During the COVID-19 pandemic, the Court offered emergency relief to churches facing public health restrictions that were not equal to those imposed on comparable subjects.8

The Court’s narrow rulings in these cases cannot hide the fact that a fierce debate has long been brewing over Smith. There has been scholarly debate over whether the historical record supports constitutionally mandated religious exemptions from general laws (West 1990; McConnell 1990b; Hamburger 1992; Stoner 1993; Lash 1994) as well as over how founding principles apply to the question, especially whether James Madison’s views are closer to the Sherbert or Smith tests (Berns 1976; Muñoz 2009; Sikkenga 2012; Muñoz 2022; Ashbach 2023). The one thing everyone can agree on is that Smith is by no means “fully settled” (Lincoln 1953, p. 401).

This controversy culminated in a non-resolution in the 2021 case Fulton v. Philadelphia, concerning whether Philadelphia could prohibit Catholic Social Services (CSS) from certifying foster homes because its refusal to certify same-sex couples on religious grounds ran afoul of seemingly neutral and generally applicable non-discrimination regulations. Chief Justice John Roberts’s opinion managed to rule for CSS while leaving Smith intact because the inclusion of a formal exemption process for foster care contracts meant that Philadelphia’s policies were not generally applicable and the city could not prove a compelling interest.9 Despite the narrow ruling, a majority of sitting justices openly called Smith into question as a precedent. Justice Samuel Alito criticized the limited nature of the decision and suggested the issue will eventually need a firmer resolution: “This decision might as well be written on the dissolving paper sold in magic shops.”10 Looking to the original public meaning of the Free Exercise Clause and history and tradition, Alito argued that Smith should be overruled in favor of the compelling interest test from Sherbert.11 Justice Neil Gorsuch similarly lambasted the Court for changing “a big dispute of constitutional law into a small one”12 and for kicking the can down the road while leaving unresolved the growing conflict between religious liberty and general public accommodations laws.13

In her concurrence, Justice Amy Coney Barrett expressed her dissatisfaction with Smith but asked if a viable alternative had been developed yet to replace the general applicability test. She wrote that

[t]he prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.14

Barrett pointed to something significant. In the debate between Smith and Sherbert, the Court seems to be looking for the right brightline test that can conclusively resolve all future Free Exercise controversies. Yet this search for a categorical answer undermines the logic of why an independent judiciary exists in the first place. The Court is debating the best absolute standard to address any and all Free Exercise claims, but the Court itself will have to address particular claims as they develop in each new legal case. To address only abstract questions and avoid the particular application of abstract ideas to specific situations would be a poor excuse for both judging and civic teaching.

3. The Lack of Judgment in Free Exercise Jurisprudence

The Court’s Free Exercise jurisprudence displays a lack of judgment. By “judgment,” I mean the particular function that defines the judiciary under the constitutional separation of powers. Alexander Hamilton explained in Federalist 78 that Congress possesses the legislative power to embody the will of the community through laws and the president has the power of the sword to use force to execute laws, but the judicial power is confined to judgment. The judiciary’s role in the constitutional order is to interpret the laws to decide legal cases, which requires applying constitutional principles and text to the particular circumstances of each case (Hamilton 2001a; Slomski 2025). The nature of this role means judging can never be mechanically rigid and that some judicial discretion is inevitable. Discretion does not amount to the unrestrained political will of judges, however, as it is constrained by limits such as legal reasoning, precedent, and an institutionalized judicial system (Farber and Sherry 2009). Within a system of separation of powers, judicial discretion is not incompatible with a departmentalist tradition that allows each branch of government to interpret the Constitution for itself. The judiciary is empowered to make binding decisions to resolve legal cases, but operates within a constitutional framework where the other branches have their own legitimate functions they can use to respond to judicial decisions (Brogdon 2017). Given that laws, and especially constitutions, can only speak in general terms, judges must have some discretion to interpret those terms and apply them to the diverse situations that arise. This is most fundamentally what Chief Justice John Marshall meant in the oft-quoted statement from Marbury v. Madison that “[i]t is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.”15

Judgment takes on multiple dimensions when considering the judicial role. In the legal sense, judgment is necessary for the resolution of cases in a functioning legal system. Every court must issue judgments that are binding legal decisions to decide the case in front of it. On the constitutional level, every court must consider the relevance of the US and state constitutions for the cases it hears. Constitutional judgment, however, applies most fully to appellate courts that focus on the questions of law raised by cases. Judgment finally exists in a pedagogical sense as the judgments made by courts can educate the public on constitutional and legal principles. Pedagogical judgment is not necessarily the exclusive province of the Supreme Court, but it will most often be exercised by that tribunal as its decisions most frequently command public attention and inspire political debate. Every court decision is a legal judgment, but whether it is a judgment in another sense depends on the type of case and the court deciding it. Supreme Court decisions have the potential to operate as judgments on three levels at once: first, they are legal judgments that settle the dispute at hand and are binding on the parties (Lincoln 1953); second, they can be constitutional judgments that seek to answer the broader constitutional questions involved in a case;16 third, they can be pedagogical judgments that teach the public about fundamental constitutional principles.17

In resolving specific legal disputes, the Supreme Court can perform a larger teaching function of educating citizens on the constitutional principles involved in major disputes. There are limits to this role, as not every case will present the opportunity to educate the public. The Court’s primary responsibility is to decide the case and interpret the law, and faithfully fulfilling that duty may impede it from exercising its secondary teaching role. The public must be responsive to education from the Court as well. If the people are only concerned with the political result of a decision and are not willing to reflect on its judicial reasoning, they close themselves off to constitutional education and miss the greater constitutional principles at stake in present controversies. The greatest limit on the Court’s educative role is that justices are not always willing or capable of writing opinions in a manner that can readily teach the public or that reflects the depth of constitutional principles. This can be seen in current Free Exercise jurisprudence.

The prevailing tests used by the Court in Free Exercise cases eschew judgment because their categorical nature allows them to be used as rigid brightlines that can dispose of cases in a formulaic manner while ignoring the facts of the case. In doing so, the Court defaults on its teaching role. Rather than carefully reflect on constitutional principles and demonstrate how to apply them to the facts of a case, the Court treats legal standards as formulaic tests that can be applied without thought or the careful examination of constitutional commitments necessary for reflective citizenship.

General applicability shares elements with the rational basis test, which essentially upholds any government action as constitutional as long as it has some rational basis. The compelling interest test links to the test of strict scrutiny, which almost always means a government action is unconstitutional. As Nichols (1998, p. 216) observed, the Court often employs these kinds of tests as an “alternative to judgment.” This use of brightline tests is unproblematic if law itself is obvious and can applied to particular cases without any need to balance legitimate claims. If law is so unambiguous, however, there would be no need for judges—artificial intelligence could resolve the case without any human judgment. Justice Frankfurter (1954, p. 238) recognized that machines could not replace judges because “[t]he answers that the Supreme Court is required to give are based on questions and on data that preclude automatic or even undoubting answers.” The difficulty is that laws speak in general terms and cannot account for all particular circumstances. Judgment is necessary to apply general laws to specific cases in a manner that honors the intent of the law, especially the Constitution which speaks in general terms as a fundamental law for government action (Nichols 1998). In exercising such judgment, the Court provides an example to citizens of how to evaluate constitutional principles, text, and history, and how to apply them to current political controversies. The Court at its best can model constitutional thought for the American public, but when it turns constitutional law into an abstract and convoluted intellectual exercise akin to algebra, it becomes inaccessible to citizens and loses its pedagogical value.

These tests move jurisprudence closer to analytical philosophy than judging. The brightline tests employed in Free Exercise cases resemble Kantian categorical imperatives that are universally applicable regardless of circumstances (Kant 1998). It is not just the general applicability test’s demand for universal laws but also the compelling interest test’s universal suspicion of government action that can be equally categorical. The kind of judgment needed by the judiciary, however, is closer to an Aristotelian standard that applies natural standards of justice to particular circumstances (Aristotle 2011, 1134b25–30).

These concerns reflect the longstanding debate over whether judges should employ rules or standards to decide cases. Rules are specific legal directives that restrict judicial discretion as they should produce certain outcomes when applied to the facts of a case while standards are broader and vaguer principles that allow for more discretion in the disposition of a case (Scalia 1989; Schauer 1991; Sullivan 1992). Categorical brightlines are embodied in rules while standards reflect the desire to balance between broad principles and the circumstances of the case (Sullivan 1992). Rules can be understood in a more formalistic, binary manner that limits discretion to yes or no choices while standards ask judges to evaluate a dimension of factors (Clermont 2020). There is a certain advantage to rules in that they can offer predictable baselines for decisions and constrain judges from abusing discretion to impose their own policy preferences. Yet overly rigid rules deny the inevitable need for discretion and assume that hard cases can be made easy by disposing of them in a categorical manner. The difficult cases with complicated circumstances, such as the kind the Supreme Court often decides, especially those dealing with Free Exercise, require a careful judgment that can reconcile constitutional principles with each case. Otherwise, law becomes a harsh master totally oblivious to the human affairs which it governs. To say discretion is necessary does not mean judges are unconstrained by the legal process and institutional norms (Farber and Sherry 2009), but it recognizes that judges must apply existing legal standards to new cases that raise unresolved questions.

A proper judicial approach to Free Exercise, as Barrett recognized in Fulton, requires a judicial discretion that is guided by constitutional text and structure. Free Exercise jurisprudence, by contrast, has been an outlier where the Court still applies strong deference to the political branches in name of judicial restraint (Rienzi 2022). It is not just that the Free Exercise decisions lack judgment, but that the Court’s rulings have often been specifically designed to eliminate the need for judgment. In Oregon v. Smith, Justice Antonin Scalia’s majority opinion overruling Sherbert and the compelling interest test was intended to restrict the Court’s discretion in future religion cases (Lingo and Schietzelt 2022). Scalia claimed that the Court only invalidated generally applicable laws under the First Amendment when Free Exercise was paired with another right, invoking a theory that there are certain hybrid rights that receive more protection.18 Scalia’s strongest argument was that the compelling interest test invites anarchy by allowing individuals to pick and choose which laws to follow based on their religious beliefs.19 Yet the Court relies on a compelling interest test for Equal Protection and Free Speech law, which Scalia claimed to be different because they do not lead to an individual right to ignore general laws like Free Exercise would.20 Scalia’s argument presumed that the Court cannot exercise judgment appropriately in Free Exercise cases, unlike other areas of law, and so judicial discretion must be restrained in deference to generally applicable laws. This fits Scalia’s emphasis on rules in decision-making (Scalia 1989), which promoted a judicial restraint intended to cabin a judge’s discretion (Manning 2017).

Scalia’s claim in Smith about the impossibility of judicial discretion in religious liberty cases was belied by Justice Sandra Day O’Connor’s concurring opinion. O’Connor would have kept the compelling interest test from Sherbert as it allows the Court to balance between the Free Exercise Clause’s protection of religious belief and conduct and the government’s need to sometimes place substantial burdens on said conduct.21 For O’Connor,

the sounder approach—the approach more consistent with our role as judges to decide each case on its individual merits—is to apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant, and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an empirical matter, a government’s criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim.22

In contrast to Scalia, O’Connor recognized the inherent need for judgment and discretion in the judicial role. Judges cannot let any test become an excuse for ignoring the particular facts of each case they decide and must evaluate each case based on its own circumstances. O’Connor saw the compelling interest test as a far less categorical alternative to the general applicability test because it still requires judges to balance the competing claims of the government’s interest and an individual’s right. A true compelling interest assessment as O’Connor envisioned requires the use of judgment to reconcile serious claims. When Justice Barrett critiqued the compelling interest test in her Fulton concurrence, she suggested that the test had become its own categorical brightline rather than the careful balancing act O’Connor described. O’Connor’s concurrence suggested a way that the compelling interest test could be salvaged in a manner consistent with the need for judgment. Scalia’s general applicability test, however, could not be saved because its very purpose is to foreclose any judicial investigation when a law is general and neutral toward religion. This divergence between Scalia’s and O’Connor’s tests reflects Scalia’s defense of rules and O’Connor’s embrace of standards in jurisprudence (Greene 2016).

In Smith, O’Connor would still reach the same result as the majority despite her different reasoning. Since Oregon had the compelling interests of consistently enforcing its prohibitions on peyote, which it deemed a dangerous controlled substance, and preventing drug trafficking, its restrictions on religious liberty were constitutional.23 O’Connor’s concurrence showed what is missing from much of the religious liberty debate—if judges are to be expected to step in to decide religious liberty cases, they must act as judges who evaluate the claims in each case rather than as philosophers searching for a categorical rule to decide all such cases. This does not mean that judges do not have universal standards, but they can never lose sight of the particular in applying the universal. In doing so, they model how a Constitution written in 1787 and embodying principles of government can continue to be applied to changing political circumstances. A true originalist under this approach must not only be able to inform citizens on the original meaning of the constitutional text but educate citizens on how to apply that meaning to new circumstances (Rehnquist 1976). As even Scalia (1997, p. 45) himself admitted, the application of original meaning to new developments “is not entirely cut-and-dried but requires the exercise of judgment.”

This context of judicial discretion competing with categorical rules can help us better understand the development of the Court’s Free Exercise jurisprudence. Many of those who have been frustrated with the narrow path the Court has taken in Lukumi Babalu Aye, Masterpiece Cakeshop, and Fulton are disappointed that the Court has decided each case based on its particular facts and has not pronounced a categorical rule for future cases. By applying Smith’s general applicability test in a facts-relevant manner in each case, however, the Court has actually made it more workable and avoided being completely constrained by its categorical rule. In Lukumi Babalu Aye, Justice Anthony Kennedy’s opinion looked to evidence from the case’s context, legislative history, and hostile statements made by the Hialeah City Council against the Santeria religion to show the relevant regulation was not neutral toward religion.24 In Masterpiece Cakeshop, Justice Kennedy again focused on the facts of the case to prove hostility towards religion, such as a Civil Rights Commissioner treating the baker’s religious beliefs against gay marriage as despicable and rhetorical and Colorado’s unequal treatment by supporting the right of other bakers to refuse to make cakes with messages condemning gay marriage.25 By chastising the offending parties for their disregard of religious liberty, Kennedy filled a teaching role by reminding Americans of the centrality of fair treatment regardless of religion under the constitutional order, despite the narrow scope of the rulings.

In his Fulton concurrence, Justice Alito commented on the development of the general applicability test to reflect particular circumstances and complained that “Smith has not provided a clear-cut rule that is easy to apply.”26 It is unclear why we would want a clear-cut rule that is easily applied and removes the need for judgment. If the complaint against Smith is that it has been transformed from a categorical rule into a contextual framework, that just means that it has been modified to fit the needs of judgment better than its original form. This is not to say that Smith itself is now acceptable. The general applicability test is still problematic because it forecloses the possibility of judgment as long as a law is general, but justices have at least deployed it in cases lacking general or neutral laws to preserve some sphere of judgment in religious liberty cases. The rule has been made workable in the extreme cases where religion has been denied neutral treatment, but it gives free reign to government to restrain religious liberty without any judicial oversight in most cases when a law is general. The dangerous impulse evidenced by Alito’s comment is to just replace Smith with another categorical rule that precludes judgment, as Justice Barrett warned. Something like the compelling interest test, properly understood, allows for judges to exercise judgment. A true compelling interest test better fits the nature of judgment and the Court’s role as civic educator because it allows for the individual evaluation of each case in a manner the categorical general applicability test largely impedes.

Judges must evaluate the facts of each case and by applying the Constitution’s principles to those facts are able to offer citizens an education in the meaning and application of those principles. To fulfill its teaching role, the Court must both examine constitutional principles in a serious manner that educates citizens on their plausible meanings and demonstrate how to carefully apply those principles to political circumstances. Some of the Free Exercise cases feature judicial debates over principles, but the majority try to turn those principles into brightlines that avoid the need to carefully apply those principles. One might object that the careful examination of each case makes education too complex for the average citizen, but that is ultimately to object that political life is too complicated. Politics involves the maintenance of principles amidst constant change and citizens in a republican government must be prepared for such a task. If the education offered by the Court is a difficult one, that is because self-government is difficult to maintain.

4. Who Judges Religious Liberty?

These cases do not just feature a battle over how much discretion judges should have in adjudicating religious liberty claims. They also focus on the question of which branch of government is best for protecting religious liberty under the constitutional regime and therefore which can educate citizens on constitutional principles. These cases point to fundamental questions over the Court’s public teaching role and the place of religion within a liberal American regime dedicated to individual rights. There is a serious debate in the Free Exercise cases whether the judiciary or the legislature is the best means for safeguarding religious liberty in a pluralistic, democratic regime based on a theory of rights.

This debate can be seen by turning back to West Virginia v. Barnette and its invalidation of a mandatory flag salute in public schools. In his majority opinion, Justice Robert Jackson made the famous pronouncement that

[t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.27

Jackson proclaimed that the Bill of Rights enshrines certain fundamental rights that are isolated from the political process and protected by the judiciary. The Court becomes the special guardian of fundamental rights under this view. These rights are not absolute, as they can still be restricted in cases of “grave and immediate danger to interests which the State may lawfully protect” as Jackson’s opinion recognized28 and to regulate the time, place, and manner of their exercise for public order as Justice Hugo Black’s concurrence made clearer.29 The norm, however, is that these rights cannot be constrained by the political process absent a compelling state interest. When there is a case to be made for restraining fundamental rights, it is the Court’s duty to investigate these claims and to balance the competing interests of individual rights and the government’s interest.

Jackson’s assessment of the judicial role was challenged in the dissenting opinion by Justice Felix Frankfurter, who wrote the majority opinion in Gobitis that Barnette overturned. Frankfurter suggested that this may be a case for accommodations for religious dissenters, but accommodations must be granted by the legislature rather than the judiciary.30 For Frankfurter, “[t]he attitude of judicial humility which these considerations enjoin is not an abdication of the judicial function. It is a due observance of its limits.”31 Frankfurter’s conception of the judicial role was a limited one that knows its proper place in relation to the political branches. He concluded that “patriotism cannot be enforced by the flag salute. But neither can the liberal spirit be enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the constitutionality of legislation, rather than with its wisdom, tends to preoccupation of the American mind with a false value.”32 The American mind was being misled by judges to think that courts will guarantee wise public policy, Frankfurter warned, when it can only be produced by the people through their representatives. As the Constitution gives limited authority to the judiciary, the primary protection for rights must come from the political process. Rights depend on a constitutional culture that values them and a society that does not understand religious liberty is not likely to offer it the proper security. Frankfurter declared that “[o]nly a persistent positive translation of the faith of a free society into the convictions and habits and action of a community is the ultimate reliance against unabated temptations to fetter the human spirit.”33 It is beyond the competence of courts to make a people a constitutional people.

Frankfurter’s position saw its resurgence in Scalia’s Oregon v. Smith opinion, which restored Gobitis’s rule of general applicability. Here, Scalia’s discussion of the Bill of Rights can be seen as a direct rejoinder to Jackson’s view of the Bill of Rights in Barnette. Scalia wrote

[v]alues that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. … But to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts. It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.34

The very purpose of a Bill of Rights for Scalia was not to withdraw certain subjects from the vicissitudes of political controversy but rather to enshrine certain “values” protected from undue government interference and subject to ordinary regulation through the political process. Rights are protected and accommodated through the political process, which may leave minority religions at a disadvantage, but this is the unavoidable cost of a democratic republic ruled by the voice of the majority. It is still less costly than empowering unrestrained judges to supervise general laws and placing the unelected judiciary in a position of power over elected representatives. According to this perspective, legislatures work through the political process to respond to the need to protect minority rights, especially religious liberty (Fisher 2002). Whereas Jackson understood the judiciary as the primary protector of rights, Frankfurter and Scalia saw the legislature as the proper vehicle for securing rights. It is not the role of Courts to second-guess the careful settlements made to protect rights through the political process and a brightline test forces the judiciary to defer to legislative judgments.

Significantly, this debate points Americans to a dialogue from the American founding that has serious implications for civic thought. The twentieth-century judicial debate over the Bill of Rights echoes the original debate when the Constitution was first proposed over whether a Bill of Rights was necessary at all. Of course, the original Constitution lacked any Bill of Rights and it was the Anti-Federalists, the opponents of the proposed Constitution, who argued for a Bill of Rights. The supporters of the Constitution, the Federalists, opposed the inclusion of any Bill of Rights. The Bill of Rights made it into the Constitution as a promised concession by the Federalists in order to secure ratification (Kelly et al. 1991).

Justice Jackson’s conception of the Bill of Rights as enshrining certain fundamental rights follows the Anti-Federalist argument for the Bill of Rights. Brutus, the most perceptive of the Anti-Federalists, argued that the Constitution, meant to last for ages, required a clear statement of foundational principles and “the most express and full declaration of rights” (Brutus 1985a, p. 117). Appealing to the principles of the Declaration of Independence, Brutus explained that there are natural rights that cannot be consented away to government, such as “the rights of conscience, the right of enjoying and defending life, etc.” as well as rights that do not need to be consented away for government to be effective (p. 118). Religious liberty would fall under the category of the rights of conscience as a fundamental right that cannot be given up. Brutus did not rest his argument for the Bill of Rights on natural rights theory alone. He also invoked the viciousness of human nature that makes government necessary in the first place to argue that rulers in government are just as susceptible to violate the rights of others. Limits must be placed on governmental authority that ensure it cannot trespass on natural rights. A key purpose of a Bill of Rights would then be to weaken government so it is not too powerful that it can threaten rights.

The historical irony of Brutus’s conception of the Bill of Rights matching Justice Jackson’s is that Jackson relied on a strong and independent judicial power to protect rights while Brutus and the Anti-Federalists were critics of the effect judicial review would have for republican government under the Constitution (Brutus 1985b). The great defender of judicial review during the ratification debate was Alexander Hamilton, who was also a skeptic of including a Bill of Rights in the Constitution. Hamilton’s defense of judicial review as a necessary component of a government with a written Constitution in The Federalist spoke to the need for an independent judiciary with sufficient discretion to interpret laws that O’Connor and Barrett embodied in their critiques of the Court’s rigid Free Exercise jurisprudence (Hamilton 2001a). Hamilton’s argument for protecting rights, however, corresponded more with Frankfurter’s and Scalia’s interpretations. When Hamilton defended the need for a strong judicial power in Federalist 78, he admitted the need for courts to protect individual rights, especially minority rights, from schemes of oppression and to guard “the private rights of particular classes of citizens” from “unjust and partial laws” (Hamilton 2001a, pp. 405–6). This argument was made for a Constitution that did not yet contain a Bill of Rights and so Hamilton’s reference to rights would have to mean traditional common law rights or a general right against unfair legislative treatment. Hamilton’s argument for a power of judicial review to defend the written Constitution seemed to envision the Court as largely policing the separation of powers and relations between the national and state governments.

In Federalist 84, Hamilton (2001b) argued that a Bill of Rights was unnecessary because the Constitution already recognized some protections of individual rights, such as protections for habeas corpus and prohibitions on ex post facto laws. It was further unnecessary because the national government had only limited enumerated powers and could not exercise authority over rights that it never had in the first place. Bills of rights were also dangerous because historically they were contracts between a monarch and his subjects where the king recognized certain rights he granted to subjects. This would be inappropriate for a republican government where all authority stems from the people and the people reserve all rights they do not delegate to government. The danger extended to the fact that a Bill of Rights implied that government has general power and can restrict rights unless they were specifically mentioned. A Bill of Rights would flip the script and suggest that rights are special dispensations from government rather than natural rights all humans possess and create governments to protect.

Bills of rights further missed that the greatest protection of rights would not come from parchment barriers listing rights but from the political process. Using the example of the liberty of the press, Hamilton (2001b, p. 446) explained “[w]hat is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable; and from this I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government. And here, after all …must we seek for the only solid basis of all our rights.” The difficulty of listing rights was that a list must include comprehensive definition of each and every accepted right to be effective, which was itself impractical. The only solid ground for rights was that they were recognized by public opinion and protected by the political process. Hamilton struck a similar note to Frankfurter in Gobitis and Scalia in Smith that rights are not isolated from politics but actually receive their strongest protection from democratic rule in their favor. For accommodations of differing views to work in a liberal republic, they must have the sanction of democratic majorities. Hamilton would likely respond to the present controversy by arguing that a society where one must run to the courts to have religious liberty protected is not a society where religious liberty is protected at all. By the time the judiciary becomes the main resort for rights, rights themselves are no longer valued by the people who possess them.

The resonance between the ongoing debate over protections for religious liberty and the Federalist–Anti-Federalist debate over the Bill of Rights provides one case where the Constitution did not resolve all political questions and American politics continues to be a dialogue between the ideas of the Federalists and the Anti-Federalists (Storing 1981). The arguments have been mixed and confused over time as Jackson’s position in Barnette embodied a Hamiltonian conception of judicial review and an Anti-Federalist view of the Bill of Rights while Scalia’s argument in Smith demonstrated a Hamiltonian view of rights while denying a Hamiltonian understanding of judicial power. The arguments still shape our constitutional debate, however, and show that more than the original intent of any one founder or party, the Constitution has its own internal logic based on its text and structure (Cash 2024). The original Constitution, with its necessary concomitant of judicial review, has combined with the amendments from the Bill of Rights so that the power of judicial review has been applied to interpret and protect the textually listed rights in a development of the constitutional logic.

Much of the debate in these religious liberty cases is just as much about who protects religious liberty as it is over what protections religious liberty deserves. A major difference between the compelling interest test as foreshadowed in Barnette and developed in Sherbert and the general applicability test of Gobitis and Smith is over the primary branch that safeguards religious liberty. The compelling interest test sees religious liberty as a fundamental right and gives the judiciary the authority to balance governmental claims of necessity with individual religious conduct. The general applicability test holds that the legislature, reflecting public opinion, is the main guardian of rights and that an individual’s religious beliefs cannot override the rights of a democratic majority to embody their preferences in general laws. Just as the real Federalist concern was that a Bill of Rights would make the new national government too weak to sufficiently protect rights (Storing 1981), the concern of Scalia and proponents of judicial restraint is that too much judicial power to protect rights weakens the government overall. This view does not admit that a stronger judiciary can allow for a stronger national government by ensuring that its greater authority does not trespass on rights. This is a debate over the judicial power just as much as it as about religion.

The current debate shows the need for a civic education in American principles. Citizens cannot fully understand the debate between judicial and legislative protections of rights unless they place it within its historical context over the nature of rights and the constitutional arrangements meant to protect them. This debate also forces citizens to consider religion’s place within the American regime. The compelling interest test places religion in a preferred position and ensures that judicial checks exist so that religious liberty is not diminished by the demands of society, unless a compelling interest of the highest order exits. In contrast, the general applicability test points to a stricter separation between the religious and public realms. General applicability holds law and religion to be separate spheres where general laws simply take no cognizance of religion. When religion does come into conflict with public policy, it is an extraordinary enough situation that the people must address it through the political process and a legislative solution. The two tests not only place different branches as the proper protector of rights and civic educator, but they ultimately offer different solutions to the question of religion’s place within a liberal regime. The compelling interest tests holds religion as privileged and requires the regime’s priorities to make space for religious concerns. The general applicability test resolves the question of religion and politics by trying to keep the two as separate as possible. These tests, and their different approaches to the theologico-political problem, reveal that just as the Court plays a role as civic educator on religious liberty, there are inherent limits to the Court’s authority to confront religion within the constitutional order.

5. Can Religion Be Judged?

The difficult question of religion’s place within America’s constitutional regime and the uneasy solutions suggested by the Court’s jurisprudence point to some limits on the Court’s teaching function. These are not limits on the Court’s institutional role to protect rights that Jackson defended in Barnette, but rather limits on the authority the Court has over religion when religious liberty rights are implicated. As the American regime requires a limited government with a written constitution and judicial review to maintain constitutional limits, those same principles circumscribe how far the Court can go as educator. The Court is not situated to answer questions, no matter how important, beyond its judicial competence or that are not raised in legal cases. Instead, the Court is restrained to teach only in matters of constitutional interpretation and law. This has been well-demonstrated in religion cases where the Court has limited itself to constitutional questions concerning religion and avoided questions beyond its jurisdiction.

The Constitution creates a limited government designed to protect individual rights that leaves the most fundamental questions of religion to individuals to work out in the private sphere. The separation of church and state followed from the understanding that authority over the natural rights of conscience cannot be consented away to human government (Jaffa 2019a). At the same time, natural rights created a common good that united people of different religious beliefs in a political community which protected minority rights and overcame the religious division that resulted from the Protestant Reformation and wars of religion (Jaffa 2019b), while religious freedom itself has deeper roots in Biblical scripture and the medieval Catholic Church (Franck 2015). The Court’s religion cases echo this understanding of individual rights by focusing on the question of what rights belong to individuals under the Constitution while presuming that all religions have the same rights. The Court cannot teach on religious matters per se and has no authority to settle the proper scope of religion. It can only educate on the legal rights pertaining to religion protected by the Constitution.

The principled form of restraint adopted by the Court in religion cases is that it has no authority to settle religious disputes. Yet the Court still has responsibility to settle legal questions and investigate questions of fact that directly connect to religion. One solution the Court has found is to separate beliefs from conduct. In the 1878 case Reynolds v. US concerning restrictions on Mormon polygamy in the Utah territory, the Court ruled that Congress lacked constitutional power over religious opinion but could restrict actions.35 The distinction of belief from conduct fits the logic of a liberal regime that leaves beliefs to the individual but still has power over individual conduct for the public good.

On occasion, the Court has been forced to address religious belief in the interpretation of laws governing conduct. The Court has handled this challenge by refusing to engage in its own evaluations of religious doctrine. In 1969, a unanimous Court decided Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, concerning property claims after a split between churches and whether a civil court could assess fidelity to church teaching in deciding the property dispute.36 Justice William Brennan’s opinion held that the First Amendment prohibits courts from examining doctrinal questions.37 The opinion in Hull relied on an 1871 case, Watson v. Jones, decided on non-constitutional, common law grounds which held that courts must defer to the decisions of church authorities on “questions of discipline or of faith or ecclesiastical rule, custom, or law.”38 Justice Samuel Miller wrote that “[t]he law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.”39 Even in legal disputes where adherence to church teaching could be valuable evidence, the Court will defer all questions of doctrine to church authorities. By deferring to church interpretation of its own teaching, the Court avoids asserting any judicial power to decide theological questions. The Court recognizes it has no authority to act as a teacher of religion and leaves that duty to the churches and organizations equipped for such a role.

In a similar manner, the Court avoids examination of individual religious beliefs and refuses to judge the reasonableness of religious beliefs. In the 1981 unemployment compensation case Thomas v. Review Board of the Indiana Employment Security Division, Chief Justice Warren Burger explained that decisions cannot “turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”40 The Court lacks the ability to decide whether one’s interpretation of their religion is correct as it is not the rightful interpreter of religious teaching.41 Yet Burger added the caveat that “[o]ne can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause.”42 Even in this exceptional case, the claim must be so bizarre that it is clearly not connected to religion.

The one area where the Court has carved out authority to evaluate religious beliefs is in the sincerity of the individual’s claims. Whereas the Court will not touch the rationality of religious beliefs, it has been willing to examine whether one claiming religious rights is sincere in his beliefs and not fraudulently seeking religious exemptions. The key decision on sincerity is US v. Ballard in 1944. This was a mail fraud case against the Ballard family and their “I Am movement” where Guy Ballard claimed to be Saint Germain, Jesus, and George Washington.43 The Ballard family was accused of knowing that their claims to cure disease were false and had been convicted by a jury.44 Justice William Douglas’s majority opinion stressed that the jury did not judge the truth of the Ballards’ religious beliefs but only if the defendants acted in good faith.45 Law cannot touch upon the truth of religious belief but can evaluate whether one is sincere in his religious beliefs when they are of question in a legal matter.

The Court has faced criticism in its evaluation of the sincerity of religious beliefs because it often ignores the question of whether the claims are rational and operates on an assumption that religious beliefs are inherently irrational (Beckwith 2015). Exaggerated language about the incomprehensible nature of religious belief aside, however, what the Court has really done in these cases is to limit its authority over tangled questions of belief. When one claims religious rights, the Court has the capacity to investigate whether one is sincere in his claim just as it can evaluate evidentiary claims in any legal dispute. Courts look to behavioral patterns and motivations for insincerity as evidence for sincerity (Mohammadi 2020). Courts can engage in a fact-sensitive evaluation to judge whether one’s actions are consistent with their claims to test sincerity just as they would evaluate individual conduct in any case where a party’s honesty is in question. The Court cannot investigate the veracity of the beliefs because that would move the judiciary from the realm of law to theology. This practice has given birth to the “religious questions doctrine” that the Court avoids questions of religion just as it does purely political disputes (Lund 2014; Chapman 2017). For this reason, the Court often avoids deciding what counts as a substantial burden on religion and defers to the individual’s claim (Girgis 2022).

A quick glance at decisions by the European Court of Human Rights shows the US Supreme Court has understood its role in religion cases in a much more restrained manner. In 1996, the ECHR upheld the suspensions of Jehovah’s Witness students in Greece for refusal to march in an Ohi Day parade commemorating Greek participation in World War II. It ruled that the parade was not reasonably a violation of the parents’ pacifist religious beliefs.46 Whereas the US Supreme Court found it had no authority to interpret sincere religious belief, the ECHR asserted a power to decide whether believers’ interpretations of their own religious teaching are reasonable. There have been numerous cases concerning the wearing of religious headwear and face coverings in schools in countries such as Switzerland, Turkey, and France. The ECHR has upheld prohibitions on religious headwear as necessary to ensure neutrality in government settings and to protect the religious beliefs of others.47 This culminated in S.A.S. v. France where the ECHR ruled that France’s ban on face coverings in public was a means for tolerance and served France’s aim to create social conditions where individuals can live together peacefully.48 The ECHR appears to understand government as responsible for protecting religious belief from exposure to conflicting beliefs and often defers to countries’ claims of necessity to constrain religious expression. There might be some overlap with the US Supreme Court’s Establishment Clause jurisprudence for public schools, although the Court has recently called its past decisions into question,49 but the ECHR has gone even further to defend restrictions on non-disruptive student expression and public prohibition on religious expression. Unlike the ECHR, the Supreme Court has maintained that religions have equal rights in public under the law and has not placed itself as the guarantor of religious tolerance or protector of some beliefs against others. Instead, the Court has followed the logic of America’s liberal regime that the law leaves individuals to work out religious beliefs for themselves without offering any group of believers special protection or restrictions.

The Supreme Court’s religious questions doctrine recognizes a principle of judicial noncognizance over religious beliefs. Judges stick to legal questions of sincerity and avoid theological ones that they have no legal authority to decide. Judicial power in a liberal constitutional regime can interpret legal questions that involve religion and resolve disputes arising from the interaction of the law with religiously motivated conduct, but religion itself is left outside the sphere of judicial authority. If there is a proper cause for judicial restraint in religious liberty cases, then, it is the constitutionally mandated requirement for the Court to disclaim any authority over religious beliefs. The Supreme Court deals with human-made, positive law after all and has no legal authority under that law or divine law to arbitrate eternal law (Aquinas 2002, pp. 18–22). Where the judiciary has constitutional authority, it must exercise judgment to use its power effectively, but there are also religious issues that the Constitution leaves outside the reach of the judicial function. In this way, the Court is restrained to teach on matters on which it can properly educate. Civic education blurs into questions of religion when theology touches the public sphere, but that does not diminish the responsibility of individuals to see to their own religious education. A liberal regime is based on foundational principles that necessitate education but also leaves certain questions outside of its educational province.

6. Conclusions

Recent cases have shown the Supreme Court still has not settled its constitutional role in Free Exercise law. In 2025, the Court decided Mahmoud v. Taylor, ruling that public schools cannot deny religious exemptions from mandatory instruction in LGBTQ+ storybooks in kindergarten through fifth grade.50 The Court relied on the 1972 precedent Wisconsin v. Yoder which struck down compulsory school attendance laws after eighth grade as violating the rights of Amish parents to raise their children according to their religious beliefs.51 Justice Alito’s majority opinion held that Yoder itself “embodies a principle of general applicability” protecting the rights of parents to educate their children in their religious beliefs.52 As the burden on parents in this case was the same as Yoder, the Court could bypass the general applicability test and move immediately to the strict scrutiny used under the compelling interest test as Yoder’s rule creates an exception to the general applicability test.53 In a footnote, without explicitly endorsing Scalia’s hybrid rights exception to the general applicability test, Alito clarified that Smith exempted Yoder because it concerned Free Exercise paired with other constitutional rights.54 Alito then pointed to the school board’s exemptions in other areas to show a lack of a compelling interest for the mandatory instruction policy.55

Justice Clarence Thomas used his concurrence to explain that sex and gender-identity education are not rooted in the history and traditional practices of American education and are not necessary components of civic education.56 Justice Sonia Sotomayor’s three-justice dissent began by stressing the importance of public education in a democracy as public schools provide lessons for how citizens can live together in a pluralistic society.57 Both these opinions made it clear the Court is aware of the need to properly educate citizens in American principles. Yet the Court refused to perform its teaching role again in Mahmoud. The Court chose to continue playing doctrinal chess by operating within the Smith framework but limiting its extent through relying on Yoder to provide a carveout. As a result, the decision smacked more of judicial gamesmanship than anything that could educate citizens in the constitutional principles of religious freedom and parental rights at stake in the case.

The Court came closer to its educative function in the interim docket per curiam decision Mirabelli v. Bonta, where it granted parents an injunction against California’s policy in schools to leave parents uninformed of a child’s gender transition.58 Here, the Court relied on Mahmoud to find that the California policy likely burdened parents’ Free Exercise rights.59 The Court went beyond Mahmoud to find there is also a due process right for parents to direct the education of their children and to make mental health decisions for them (Ibid.). Justice Barrett used her concurrence to argue that parental rights over education and mental health are justified under the doctrine of substantive due process as they are based in history and tradition and implied in the idea of ordered liberty.60 Even within its short opinion, the Court performed more of a teaching role by explaining the historical origin and principled basis of due process parental rights. In doing so, the Court built on longstanding precedents and historical recognition of parental rights (Griffith 2024). As Justice Elena Kagan’s dissent noticed, the opinion depended upon the universal due process rights of all parents and religious liberty was ancillary to the outcome.61 The Court was more willing to teach on the nature of parental rights but remained hesitant to offer civic education on the nature of religious liberty.

As long as the Court shies away from its role in teaching on the constitutional basis of religious liberty, litigants and citizens will be left with questions and religion’s place within the American regime will continue to be contested. Convoluted decisions that treat legal reasoning like an abstract game rather than public education of citizens in constitutional principles leaves citizens impoverished of a deeper understanding of their constitutional rights. For the Court to teach citizens, it must write clear decisions that are upfront in their lessons and tolerate the possibility of concurring and dissenting opinions, which can improve its educative value (Kennedy 1998).

The nature of religious questions in a liberal regime necessarily restrains the Court’s ability to educate citizens when religion is involved. Yet, the Court does have a role to resolve constitutional questions in legal cases and should not be squeamish in offering education to citizens on the constitutional principles of religious liberty. This requires a judgment on the part of the Court that applies constitutional principles to the facts of each case while understanding the historical context and origins of those principles. The Court would be wise to avoid rigid brightlines that remove the need to evaluate each case. Categorical straightjackets defy the need for an independent judiciary.

The Supreme Court seems poised to eventually overrule the general applicability test and return to something like the compelling interest test, but it has not brought itself to do so yet. The Court can avoid the controversy by settling Free Exercise disputes on technical grounds when they present themselves or to handle religious liberty cases as free speech cases whenever there is a speech element present.62 Avoiding the issue only leaves further questions unresolved that are likely to reoccur, especially given the constant clashes between religious beliefs and public accommodations laws. A Court that embraces its constitutional role to exercise judgment that teaches the public on constitutional principles cannot forever avoid its duty to confront current religious liberty debates, as long as it sticks to the appropriate legal questions within its purview. The Court is uniquely positioned as a branch to educate citizens on principles of religious liberty and to model the constitutional deliberation necessary for free government, meaning there is not an easy substitute if it refuses to embrace its teaching role.

7. List of Cases

303 Creative LLC v. Elenis, 600 U.S. 570 (2023)

Aktas v. France (dec.), App. No. 43563/08, Eur. Ct. H.R. (30 June 2009), https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22002-1395%22]}. Accessed on 26 May 2026.

Cantwell v. Connecticut, 310 U.S. 296 (1940)

Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993)

Dahlab v. Switzerland (dec.), 2001-V Eur. Ct. H.R.

Efstratiou v. Greece, 1996-VI Eur. Ct. H.R.

Employment Division of Oregon v. Smith, 494 U.S. 872 (1990)

Fulton v. City of Philadelphia, 593 U.S. 522 (2021)

Kennedy v. Bremerton School District, 597 U.S. 507 (2022)

Leyla Şahin v. Turkey [GC], 2005-XI Eur. Ct. H.R.

Mahmoud v. Taylor, 606 U.S. 522 (2025)

Marbury v. Madison, 5 U.S. 137 (1803)

Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 (2018)

Minersville School District v. Gobitis, 310 U.S. 586 (1940)

Mirabelli v. Bonta, 607 U.S. ____ (2026)

Presbyterian Church v. Hull Church, 393 U.S. 440 (1969)

Reynolds v. US, 98 U.S. 145 (1878)

Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. 14 (2020)

S.A.S. v. France [GC], 2014 Eur. Ct. H.R.

Sherbert v. Verner, 374 U.S. 398 (1963)

Tandon v. Newsom, 593 U.S. 61 (2021)

Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707 (1981)

US v. Ballard, 322 U.S. 78 (1944)

Valsamis v. Greece, 1996-VI Eur. Ct. H.R.

Watson v. Jones, 80 U.S. 679 (1871)

West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)

Wisconsin v. Yoder, 406 U.S. 205 (1972)