My column in OnlySky.

Given all the other matters decided by the Supreme Court in its recently concluded term, readers of OnlySky can be forgiven for forgetting about what is happening to the separation of church and state. When the New York Times published its annual end-of-the-term story on July 5, 2026, most of the important cases involved various forms of presidential power—like birthright citizenship and immigration, and the authority of the president over the executive branch—or race and political life—for example, the Voting Rights Act.

The only religion case mentioned was Landor v. Louisiana Dept. of Corrections, a rare case in light of recent Court decisions—because the party arguing for religious privilege lost. In an opinion by Justice Neil Gorsuch, the Court ruled 6-3 that Louisiana prison guards could not be sued personally for damages for violating the religious rights of a Rastafarian inmate when they shaved his dreadlocks. The ruling was not based on whether the inmate’s religious rights were violated, but on the power of Congress to subject the guards to damage actions under Congress’s Spending Power.

Critics complained that the justices would have ruled differently if the plaintiff had been a more conventional religious figure: if, for instance, prison guards had shaved an orthodox Jewish man’s head. But I personally doubt that the result would have been different. Limiting the Spending Power has been an important goal for Gorsuch outside the religion context.

Either way, the constitutional separation of church and state did not change much in the past year. Nevertheless, the end of the Court’s term is a good time to return to a question that has bothered many secularists. In the midst of rapid secularization of the culture, is the Supreme Court forcing religion on us in the name of the Constitution? The answer to that question is, by and large, no. Religion is being forced on us, but not primarily by the justices.

Gutting the Establishment Clause

Let’s start with what is left of the Establishment Clause. The First Amendment forbids Congress from creating “an establishment of religion.” It may be that the original intention of this language was simply to keep Congress from interfering with the existing official state churches—the last one of which, in Massachusetts, was not abolished until 1833—but the clause has been understood for many years to also mean that the government should not foster religion per se.

In the last twenty years, the Court has not ruled in favor of any major Establishment Clause claim and has greatly restricted the reach of the clause. This is the reason state legislators now believe they can return the Ten Commandments to the walls of public school classrooms and add Bible passages to mandatory public school reading lists. It is very likely these actions will be upheld by the Court against Establishment Clause challenges.

The Court has failed to explain its rationale in its recent cases, other than vague references to history, so no one knows how far the government can go in fostering religion in general or Christianity in particular. But we should assume that unless the federal government or a state literally recognizes some religion as the official religion of that jurisdiction, or forces people to attend church, nothing the government does will be held to violate the Establishment Clause.

This sounds like terrible news. But it is not actually the Supreme Court in these cases that is forcing religion on the American people. It is federal and state officials and legislators. All of these government actions can be ended tomorrow by the voters. That is not a quixotic thought. These actions are not genuinely popular with the majority of voters in any state. The problem is that secularists have not organized politically to bring their numbers to bear on American political life.

Because evangelical Christians are such an important part of the Republican Party base, the only practical way to stop these actions in red states is to elect Democrats to office. And in some of the states in which these government actions are taking place, Democrats have allowed their brand to become toxic. These states reflect one-party government with all its faults. This situation represents a serious political challenge. But it is a political, not a legal, challenge. The situation was not created by the Supreme Court. It came about because of the political ineptitude of the Democratic Party.

Free exercise cases

What about the other religion clause in the First Amendment—that Congress shall not prohibit “the free exercise” of religion? In contrast to the Establishment Clause, the Court has been vigorously enforcing the Free Exercise Clause.

In this field, there are three different types of cases. In the first, a religious person is permitted to express religious sentiments when the government would prefer that such expression be restricted. This was the situation of the high school football coach who wanted to pray after football games. Coach Joe Kennedy won his case in 2022 and critics claim that the majority opinion by Gorsuch simply misread the record and ignored the implied coercion of the high school student football players in the case. It should be noted, however, that the Court specifically upheld the legal principle of no coercion in religious matters and that the case was as much a free speech case as a free exercise case. We should reconsider criticizing such rulings.

These days, freedom of expression is more threatened than ever. Just think of protestors asserting the rights of Palestinians. We may come to view this kind of religion case much more positively in the future.

The second category of free exercise cases is non-discrimination against religious entities. These are cases like the private school tuition case in 2022, which struck down a Maine education policy that made K-12 religious schools ineligible for taxpayer-backed tuition aid. Generally speaking, if voters do not like these cases, they can simply eliminate the underlying public subsidies. Nothing requires Maine to subsidize private school education, for example. If Maine did not do that, no private school, including religious schools, would receive public funding. The first case to establish this line of non-discrimination, in 2017, held that Missouri could not exclude church playgrounds from grants that helped pay for resurfacing playgrounds to make them safer. That case made sense to a lot of people because the point of the program was to protect children and had nothing to do with fostering religion. Even so, nothing requires this kind of government spending in the first place. This line of cases does not force religion on us.

A religious right to discrimination

That leaves the third type of free exercise case, in which the religious entity is itself discriminating against others in ways that violate statutory law. Religious organizations have been permitted by the Court to engage in such discrimination in a wide variety of contexts under the banner of the free exercise of religion. For example, religious groups have been allowed to hire only members of their own religion in good standing. They have been permitted to participate in public programs while refusing to provide services to persons of whom they disapprove, such as a religious charity that denies adoption services to gay couples. The Court has even allowed private corporations like Hobby Lobby to assert religious liberty claims of these types.

I would not defend the outcomes in some of these cases. They allow religious groups to discriminate in ways that would be illegal for anyone else. However, in terms of forcing religion on us, the reach of these cases is actually pretty narrow. These cases create a private sphere in which religious organizations operate free from government restrictions. If you and I don’t work for a religious organization, nor seek services from a religious group, we are unaffected. In none of the cases I can think of was the party discriminated against unable to obtain the needed services elsewhere. As I say, I would not rule this way in some of these cases, but the cases do not signify a religious resurgence in the culture. They are more of a delaying action protecting religious groups from changes in the culture than anything else. Everyone agrees that there must be some kind of private space for religious groups—no one would try to force the Catholic Church to ordain women as priests. So, the question here is really just how much.

No one knows where this Court will go in the future in religion cases. Clearly, the Court is very religion friendly. But the Court is not really impinging on us. Often, if we don’t like the legal role of religion in our national life today, it is within our power to change it. In such instances, the Court is not standing in our way. In other areas where the Court is protecting religious groups from the government, we should perhaps be happy that such private spheres exist in this culture. Someday we ourselves may need them.