Establishment v. Expression: A primer on this term’s religion-related cases

As last year's SCOTUS decisions still reverberate throughout the nation, some wonder whether the court is too religious for the nation's good.

Last year’s slate of religion-related cases taken up by the U.S. Supreme Court was … a lot. 

Coverage around Dobbs v. Jackson Women’s Health Organization and Kennedy v. Bremerton School District came hard and fast last spring and summer. Not only did landmark decisions around a woman’s right to choose and freedom of religious expression in schools cause cultural and political shock waves, they also raised the question of how religion itself functions on the Supreme Court and the current Court’s interpretation of the First Amendment.

Pundits and experts used Supreme Court verdicts to reexamine the role of law and the relationship between religion and the state. These conversations are ongoing, as the Supreme Court deliberates on First Amendment cases, specifically around establishment vs. expression, and analysts consider how the current justices’ decisions relate to precedent established by previous Courts.

While this year’s decisions may not be as contentious (nor always so obviously “religious”), this edition of ReligionLink gets you up to speed and ready to report with background explainers, resources and experts for covering the most relevant religion-related cases the Supreme Court is set to decide on, might take up in the near future or for which it recently issued judgment. 

Is SCOTUS too religious?

In the wake of last year’s momentous decisions, and their significant reactions, some wondered what role religious faith plays in Supreme Court decisions and whether it should feature in the bench’s decision-making process at all.

According to a 2022 Pew Research Center survey, a notable number of U.S. adults (35%) think the Supreme Court is “friendly” toward religion (compared with just 18% who thought so in 2019). Furthermore, people in the U.S. “are more likely to say the court’s recent decisions have helped (rather than harmed) the interests of U.S. Christians, and harmed (rather than helped) the interests of people in the U.S. who are not religious.”

But, as with most things in the U.S. these days, Americans are fairly split on whether justices should bracket their religious beliefs when making Court decisions. Around 44% say justices have been letting their faith have too much a say in their deliberations, while 40% feel the influence of religion on the current Court is about right.

The question of whether the Court is too religious depends on what perspective you come from. For example, religious conservatives might think SCOTUS is finally getting things right with what some read as a more traditionalist, Christian reading of the Constitution. Religious minorities, on the other hand, might feel the court is violating their religious freedom by favoring a particular tradition — or traditions. The non-religious and those that advocate for a strict separation between church and state are showing particular concern around what they see as the justices’ faith driving their decisions, as revealed in public comments.

And what faith do the Supreme Court justices identify with? Six of the current Supreme Court justices are Catholic (Samuel Alito, Amy Coney Barrett, Brett Kavanaugh, John Roberts, Sonia Sotomayor and Clarence Thomas), two are Protestant (Neil Gorsuch and Ketanji Brown Jackson), and after Stephen Breyer’s retirement, Elena Kagan is the only Jewish justice.

This mix is “not reflective of the U.S. population,” according to Gallup’s statistics:

… about 22% of the adult population identifies as Catholic, as opposed to the 67% Catholic representation on the court. Two percent of the population identifies as Jewish (Kagan represents 11% of the nine justices). The biggest disproportionality comes in terms of Protestants. About 45% of Americans are non-Catholic Christian, or Protestant, compared with what will be 22% Protestant representation on the court. There is also a completely missing constituency on the court, the “nones,” or those who when asked say they have no formal religious identity [who make up about 21% of the population] …

That overrepresentation has some concerned. Andrew Koppelman, a law professor at Northwestern University, wrote that the court’s religious persuasions have led justices to issue “orders to public officials based on [their] gut feelings, seemingly undisturbed by exposure to evidence.” In other words, Koppelman thinks SCOTUS is going against several decades of decisions regarding the balance of establishment of religion or prohibiting its free exercise in the First Amendment. For his part, he feels the Court is ignoring the First Amendment altogether and making decisions based on their personal faith.

Whether or not this has led to a certain “lawlessness” on the court, as Koppelman argues, the “Roberts Court” (under the leadership of Chief Justice Roberts) “has ruled in favor of religious organizations far more frequently than its predecessors,” according to research from the University of Southern California’s Lee Epstein and University of Chicago’s Eric A. Posner.

In their statistical analysis, Epstein and Posner found that the Roberts Court ruled in religious organizations’ favor 81% of the time, compared with around 50% for all previous eras since 1953. They wrote:

In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. … this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past.

All of this suggests the justices’ faith will continue to play a role in the Supreme Court’s pending cases and impending decisions — in 2023 and beyond. It might also encourage some plaintiffs to appeal to the nation’s highest court, feeling they might have a bench stacked in their favor.

For more background: 






The cases in question

High-stakes SCOTUS cases have taken on increased political heat in recent years. Pundits on both sides are ramping up for the aftermath and the next battle lines, whatever the rulings.

Below are brief summaries on the cases ReligionLink identified as particularly relevant for religion reporters and others watching the Supreme Court this term.

The cases largely revolve around the First Amendment, which stipulates that Congress will make no law respecting an establishment of religion or prohibiting its free exercise. Broadly interpreted, the Amendment protects “freedom of speech, the press, assembly, and the right to petition the Government for a redress of grievances.” During this term, the Court will decide on at least four cases with profound First Amendment implications, three of which have religion angles to them (and one, Jack Daniel’s Properties v. VIP Products LLC, that does not). Each deserves careful monitoring for how the Justices’ decisions will impact future First Amendment jurisprudence and U.S. citizens’ rights to free speech and expression.

You can find detailed overviews and helpful summaries here:

General SCOTUS sources

  • Montse Alvarado

    Montse Alvarado is a former vice president and executive director of the Becket Fund for Religious Liberty, through which she represented a wide variety of religious ministers, schools, prisoners and hospitals before the Supreme Court. She is now president and COO of Eternal Word Television Network’s news division, EWTN. Contact is Michelle Laque Johnson, director of communications at EWTN Global Catholic Network.


  • Center for the Study of Law and Religion

    The Center for the Study of Law and Religion at Emory University in Atlanta focuses on religion and the law worldwide. It is headed by John Witte Jr., a professor of law and ethics and an expert on religious liberty.

  • Erwin Chemerinsky

    Erwin Chemerinsky, dean of the University of California, Irvine School of Law, is a nationally recognized expert in constitutional law. He has defended Guantanamo detainees.

  • M. Christian Green

    M. Christian Green is a senior fellow in law and religion at Emory University. Green’s research interests include law and religion, human rights, religious freedom, religion and world affairs, and global ethics.

  • Steven K. Green

    Steven K. Green is the Fred H. Paulus Professor of Law and affiliated professor of history at Willamette University, where he teaches courses in constitutional law, First Amendment, legal history, jurisprudence and criminal law in the College of Law, and legal history and American religious history in the College of Liberal Arts. In addition, Green directs the interdisciplinary Center for Religion, Law and Democracy.

  • Vincent Phillip Muñoz

    Vincent Phillip Muñoz teaches religion and and public life at the University of Notre Dame. He focuses on the founders and religious freedom.

  • Eric A. Posner

    Eric Posner is the Kirkland and Ellis Distinguished Service Professor of Law, University of Chicago. His research interests include antitrust law, financial regulation, international law and constitutional law. Posner is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute.

  • Jack Rakove

    Jack Rakove is the William Robertson Coe Professor of History and American Studies and professor of political science and law at Stanford, where he has taught since 1980. His principal areas of research include the origins of the American Revolution and Constitution, the political practice and theory of James Madison, and the role of historical knowledge in constitutional litigation.

  • Kristen Waggoner

    Kristen Waggoner is senior vice president for the U.S. legal division and communications for the Alliance Defending Freedom, a firm known for defending religious objectors to LGBTQ nondiscrimination laws. She argued Masterpiece Cakeshop v. Colorado Civil Rights Commission before the Supreme Court. Arrange an interview through this media contact form.

  • Adam Winkler

    Adam Winkler is a professor at UCLA Law School. He is an expert on the Supreme Court.

Groff v. DeJoy

Gerald Groff is a Christian and U.S. Postal Service worker who refused to work on Sundays because of his religious beliefs. The U.S. Postal Service offered to find other employees that could swap shifts, but when no co-worker would Groff did not go to work. He was subsequently terminated. Groff then sued the U.S. Postal Service under Title VII of the Civil Rights Act of 1964, claiming his religious beliefs were not reasonably accommodated. Lower courts sided with the Postal Service, concluding that Groff’s requested accommodation posed an undue hardship on the mail delivery service. The question the Court is now considering is whether the inconvenience to his coworkers qualifies as an “undue burden” under Title VII of the Civil Rights Act of 1964 to the point that the employer can be excused from providing religious accommodations. Arguments for Groff v. DeJoy were presented on April 18, 2023.

Related stories:
Potential sources (some of whom filed amici curiae related to the case):
  • American Center for Law and Justice

    The American Center for Law and Justice is a politically conservative, Christian-based legal organization in the United States. It is headquartered in Washington, D.C., and associated with Regent University School of Law in Virginia Beach, Virginia.

  • Becket Fund for Religious Liberty

    The Becket Fund is a public-interest law firm in Washington, D.C., that works to protect the free expression of all religious traditions. Stephanie Keenan handles media inquiries.

  • is an advocacy group and lobbying organization focused on advancing Catholic viewpoints in U.S. politics.

  • Christian Legal Society

    The Christian Legal Society is a nonprofit Christian organization headquartered in Virginia that consists of lawyers, judges, law professors and law students. Its members are bound to follow the “commandment of Jesus” and to “seek justice with the love of God.”

  • The Church of Jesus Christ of Latter-day Saints

    Headquartered in Salt Lake City, The Church of Jesus Christ of Latter-day Saints has a presence in numerous countries.

    Contact: 801-240-1670.
  • Council on American-Islamic Relations

    The Council on American-Islamic Relations says it is the largest advocacy group for Muslims in the U.S. It advocates for Muslims on issues related to civil liberties and justice. Contact communications director Ibrahim Hooper in Washington, D.C.

  • Jewish Coalition for Religious Liberty

    The Jewish Coalition for Religious Liberty is a nondenominational organization of Jewish communal and lay leaders. JCRL works with other faith communities to advocate for religious liberty.

  • Muslim Public Affairs Council

    The Muslim Public Affairs Council works for Muslim participation in civic life. It works to cultivate leadership in young Muslims and encourage a sense of ownership over their religious and national identity as Americans. The group’s $1.1 million budget includes no overseas funding. It has offices in Washington, D.C., and Los Angeles and has several state chapters. The council is considered moderate and politically savvy and is led by first- and second-generation Americans. Salam Al-Marayati is president and co-founder.

  • James C. Phillips

    James C. Phillips is an assistant professor of law at Chapman University’s Fowler School of Law, where he teaches courses in civil procedure and law and religion. His research topics include constitutional interpretation, law and corpus linguistics, the First Amendment, Supreme Court oral argument and empirical studies examining discrimination.

  • Public Affairs and Religious Liberty Department

    The Public Affairs and Religious Liberty Department of the Seventh-day Adventist Church supports religious liberty internationally and employs legal experts. It is based in Silver Spring, Maryland.

  • Religious Liberty Initiative

    The Religious Liberty Initiative at the University of Notre Dame School of Law promotes religious freedom for people of all faiths through scholarship, events and the Law School’s Religious Liberty Clinic.

  • Sikh Coalition

    The Sikh Coalition in New York is an advocacy group established by several Sikh groups across the United States after the 9/11 attacks to help protect Sikh civil rights. Nimarta Kaur is the media and communications director.

  • Thomas More Society

    The Thomas More Society is a Chicago-based not-for-profit, national public interest law firm dedicated to restoring respect in law for life, family and religious liberty. For interview requests, contact Tom Ciesielka.

  • Asma Uddin

    Asma Uddin is the author of When Islam Is Not a Religion: Inside America’s Fight for Religious Freedom. She previously served as counsel at the Becket Fund for Religious Liberty, where she focused on both international and American religious liberty advocacy. Uddin has extensive knowledge of religious freedom law and a track record of defending religious minorities, and she often speaks on on issues of gender and faith.

  • Mark W. Whitten

    Mark Weldon Whitten is the author of The Myth of Christian America: What You Need to Know About the Separation of Church and State. He teaches religion and philosophy at Lone Star College – Montgomery in Texas. He says new research has shown that the founders had mixed opinions on the role of religion in the state and that the First Amendment provisions about religion — to neither establish religion nor prohibit its exercise — are in tension, with neither having priority over the other.

Gonzalez v. Google LLC

This case is one of two this term — along with Twitter v. Taamneh — that brings Section 230(c)(1) of the Communications Decency Act before the Court, a federal law that shields websites from liability for content posted by their users.  This law is seen as a significant, but increasingly divisive law, that protects social media sites and other online services (defined as “interactive computer service[s],” in Section 230) from liability for user-generated content posted to their platforms.

The estate of American student Nohemi Gonzalez, killed in an ISIS attack in Paris in 2015, sued Google on claims the attackers were radicalized by ISIS recruitment videos recommended by algorithms used by Google’s video platform, YouTube. While acknowledging that Section 230 protects Google for the actual content of the videos, Gonzalez argues that Google is not immunized for its role in actively recommending those videos.

The religion angle is in relation to appeals from the district court’s dismissal of three actions seeking damages under the Anti- Terrorism Act against Google, Twitter and Facebook on the basis that defendants’ social media platforms allowed ISIS to post videos and other content to communicate the terrorist group’s message, to radicalize new recruits and to generally further its mission. The case might also have relevance related to religious content posted online. Arguments for this case were heard on Feb. 21, 2023.

Related stories:
Potential sources (some of whom filed amici curiae in the case):
  • John Ankerberg

    John Ankerberg is president of the Ankerberg Theological Research Institute in Chattanooga, Tennessee. He has a daily radio and television show.

  • Anti-Defamation League

    The Anti-Defamation League tracks discrimination based on religion. ADL has 30 regional offices. Check with local ADL officials for a breakdown on the number and type of antisemitic incidents in your area and for leads on interfaith initiatives.

  • Aaron Fisher

    Aaron Fisher is a Just Security student staff editor and a JD candidate at New York University School of Law. He is also senior notes editor for the N.Y.U. Journal of Legislation & Public Policy. Fisher has interned at the U.S. Department of Defense, the Cybersecurity & Infrastructure Security Agency, the U.S. Attorney’s Office (Eastern District of New York) and the New York State Inspector General’s Office. He is particularly interested in the intersections of criminal law, national security, First Amendment issues, politics and tech policy.

  • Josh Hawley

    Josh Hawley is a Republican U.S. senator for the state of Missouri. He has been outspoken on numerous issues related to religious liberty and free speech. As of 2018, Hawley attended The Crossing Church in Columbia, Missouri. He has said that his legal and political career is a natural extension of his Christian faith. Contact through website.

    Contact: 202-224-6154.
  • National Religious Broadcasters

    National Religious Broadcasters is a network of global media broadcasters in Christian radio, television, internet and other platforms. According to its website, the NRB exists to equip, advocate for and encourage Christian communicators and believes that “religious liberty is the cornerstone of a free society, and that we must protect those freedoms so that the transforming reality of Jesus Christ can reach hearts and minds the world over.” Email contact through the website.

    Contact: 202-543-0073.
  • Religious Technology Center

    The nonprofit Religious Technology Center was established in 1982 to “preserve, maintain and protect the Scientology religion.” The center guards against improper use of Scientology’s religious symbols and technologies and has final ecclesiastical authority regarding their application, but it is not involved in routine church matters. Its international headquarters are in Los Angeles. David Miscavige has been the RTC’s chairman of the board since 1987.

  • Zionist Organization of America

    Zionist Organization of America advocates for Israel, in Washington, D.C., on college campuses and in communities. It also counters anti-Israel bias in media and on campus. It was started in 1897 to help found a Jewish state in Palestine. Past presidents have included Supreme Court Justice Louis Brandeis and Rabbi Abba Hillel Silver. Contact ZOA National President Morton A. Klein.

303 Creative LLC v. Elenis 

This case, according to former ReligionLink Editor Kelsey Dallas of Deseret News, “centers on a website designer who argues the state of Colorado can’t force her to design sites for same-sex weddings since doing so would violate her religious beliefs.” The religion angle hinges “on a website designer who argues the state of Colorado can’t force her to design sites for same-sex weddings since doing so would violate her religious beliefs.” This case was argued Dec. 5, 2022.

Related stories:
Potential sources (some of whom filed amici curiae in the case):
  • is an advocacy group and lobbying organization focused on advancing Catholic viewpoints in U.S. politics.

  • Cato Institute

    The Cato Institute is a public policy research organization dedicated to the principles of individual liberty, limited government, free markets and peace.

  • Christian Legal Society

    The Christian Legal Society is a nonprofit Christian organization headquartered in Virginia that consists of lawyers, judges, law professors and law students. Its members are bound to follow the “commandment of Jesus” and to “seek justice with the love of God.”

  • Ethics and Public Policy Center

    The Ethics and Public Policy Center is a conservative, Washington, D.C.-based think tank and advocacy group. Founded in 1976, the group describes itself as “dedicated to applying the Judeo-Christian moral tradition to critical issues of public policy” and advocacy of founding principles such as the rule of law. The EPPC’s president is Ryan T. Anderson.

  • Family Research Council

    The Family Research Council is a Christian organization promoting the traditional family unit and the Judeo-Christian value system. Press contacts are J.P. Duffy or Alice Chao.

    Contact: 866-372-6397.
  • Freedom From Religion Foundation

    The Freedom From Religion Foundation is based in Madison, Wisconsin, and has become one of the leading activist groups on the nontheist scene.

  • Institute for Faith and Family

    The Institute for Faith and Family is an advocacy organization run by Tami Fitzgerald of the North Carolina Values Coalition. The organization uses media, communications, amicus briefs and other platforms to help drive a for-faith and for-family culture.

    Contact: 980-404-2880.
  • Institute on Religion & Democracy

    The Institute on Religion & Democracy is a prominent lobby uniting conservatives across the mainline Protestant denominations to push for more traditional policies in American churches and for more conservative policies in American politics. The IRD is considered a major player in the battles over gay rights in churches.

  • Jewish Coalition for Religious Liberty

    The Jewish Coalition for Religious Liberty is a nondenominational organization of Jewish communal and lay leaders. JCRL works with other faith communities to advocate for religious liberty.

  • National Association of Evangelicals

    The National Association of Evangelicals is an organization that includes 45,000 congregations from 40 member denominations, individual congregations from an additional 27 denominations, and 250 parachurch ministries and educational institutions. Its mission is to gather, strengthen and expand the evangelical community. Galen Carey is vice president for government relations.

    Contact: 202-789-1011.
  • National Religious Broadcasters

    National Religious Broadcasters is a network of global media broadcasters in Christian radio, television, internet and other platforms. According to its website, the NRB exists to equip, advocate for and encourage Christian communicators and believes that “religious liberty is the cornerstone of a free society, and that we must protect those freedoms so that the transforming reality of Jesus Christ can reach hearts and minds the world over.” Email contact through the website.

    Contact: 202-543-0073.
  • Tanenbaum

    Tanenbaum is a secular organization for interreligious dialogue and education.

  • U.S. Conference of Catholic Bishops

    The U.S. Conference of Catholic Bishops has raised concerns about a range of freedom of conscience questions related to protection of life issues and supports including conscience provisions in proposed funding bills.

Other cases to keep an eye on

The cases below are either pending petition or are might be appealed to the Supreme Court in due time. For now, ReligionLink is providing just a brief synopsis for each:

  • Slockish v. Department of Transportation (From SCOTUSblog) — At issue is “Whether the U.S. Court of Appeals for the 9th Circuit’s mootness ruling warrants summary reversal where the panel clearly misapprehended governing law on mootness and on the authority of federal courts to order equitable relief affecting nonparties.” The case centers on a 2006 government highway project in Oregon, which led to the destruction of burial grounds held sacred by Native Americans. The case was brought by Slockish, the hereditary chief of the Confederated Tribes and Bands of the Yakama Nation, and Logan, a member of the Confederated Tribes of Grand Ronde, who are seeking remediation of that sacred land and sued the agencies involved in the highway project, saying the bulldozing of the site violated their rights to religious freedom. Currently pending petition.


  • Apache Stronghold v. United States — At issue here is whether Resolution Copper can proceed with mining operations in an area of sacred land called Oak Flat (known in Apache as Chi’chil Bildagoteel), in Pinal County, Arizona. A coalition of Native Americans known as Apache Stronghold argued that U.S. officials violated their religious freedom rights when they transferred the land. After losing in front of the 9th U.S. Circuit Court of Appeals, Apache Stronghold announced an intention to appeal to the Supreme Court. In November 2022, the appeals court announced it would rehear the case “en banc,” or by the court’s full panel of 11 judges. Arguments were heard on March 21, 2023. According to AZ Central, the case:

has caught the attention of not only Indigenous activists and environmental groups, but religious organizations that see the case as important to First Amendment rights. An assortment of religious leaders ranging from Sikhs, Jews and Muslims to Mennonites, Catholics and Mormons are urging the court to uphold Apache religious beliefs, fearing that a ruling against the tribe could lead to setbacks for their rights.


  • Roman Catholic Diocese of Albany v. Emami — This case, which was declined and waived by the Supreme Court and sent back to Appellate Division at the Supreme Court of New York, centers on whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” according to previous decisions in Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled. Kelsey Dallas wrote that the current New York law only allows “a narrow religious exemption.” Dallas believes this case might be appealed to the Supreme Court in due time.
Related stories and other cases:

Related ReligionLink source guides