The U.S. Supreme Court on March 17. Photo by Win McNamee/Getty Images

Michael A. Helfand March 27, 2025

After a year of relative quiet, the Supreme Court has jumped back into the church-state wars with a vengeance: Three blockbuster cases to be heard in coming weeks could significantly impact the relationship between church and state generally, with particular consequences for American Jews.

What’s at stake: When can Jewish families opt out of public school curricula? What kind of Jewish schools ought to be eligible for government funding? And what kinds of Jewish social justice organizations ought to receive the benefits afforded to religious operations?

Consider first the most culturally fraught of the three cases, Mahmoud v. Taylor. In Mahmoud, a group of Muslim, Christian and Jewish parents are challenging a Montgomery County, Maryland school board decision not to allow parents to opt their children out of classroom discussions of books with LGBTQ+ themes. That decision, the parents assert, violates their religious liberty rights.

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A federal court of appeals rejected their claim, arguing that because the parents and children aren’t being compelled to change their religious beliefs — all the kids have to do is attend class and listen — their religious liberty claims must fail.

In taking the case, there’s good reason to think that the Supreme Court will reverse that decision. There’s a strong precedent for allowing parents broad rights when it comes to making decisions about their children’s education under the banner of religious liberty.

In the 1972 decision Wisconsin v. Yoder, the Supreme Court upheld the religious liberty rights of Amish families who refused to send their children to high school, fearing that a public education would undermine their children’s religious upbringing. Over the past half-century, the Supreme Court’s religious liberty doctrine has changed quite a bit, but the decision in Yoder has never been overturned.

And if religious liberty rights were extended to the Amish who feared the impact of high school on their kids’ religious development, the same argument could easily be extended to the parents in Mahmoud.

A Supreme Court decision in favor of the parents in Mahmoud could have a broad impact. Fights over public school curricula have become a common feature in recent years, most notably with respect to curricula inclusive of LGBTQ+ issues. But a victory for the parents in Mahmoud could also arm Jewish parents with new legal arguments in ongoing controversies over ethnic studies curricula, like that in California, that some have deemed antisemitic.

Testing the waters for religious charter schools

Mahmoud isn’t the only case the Supreme Court has taken up that impacts the relationship of church and state when it comes to education. In St. Isidore of Seville Catholic Virtual School v. Drummond, the Supreme Court will decide whether the country’s first religious charter school is constitutional.

The idea of a religious charter school, at first glance, seems beyond the constitutional pale. After all, charter schools are typically viewed as a kind of public school. It would be hard to imagine a greater collapse of church-state separation than a public school that operates based on religious values and incorporates religious instruction.

But it is precisely the classification of Oklahoma charter schools as public schools that is at issue in St. Isidore. Yes: Charter schools are authorized, funded and regulated by the state. But they are operated by private entities, often without much day-to-day input from the government.

Given these divergent considerations, federal courts have, over the years, considered the question of whether charter schools ought to be understood, for constitutional purposes, to be public schools. And if the Court concludes that St. Isidore isn’t, as a constitutional matter, an arm of the state, then the church-state objection to its existence is likely to fall by the wayside.

The consequences of a decision upholding the constitutionality of St. Isidore as a religious charter school could be significant for American Jews in two different ways.

First, it would open the door for religious charter schools in other jurisdictions, providing a pathway for Jewish communities to create publicly funded but privately operated religious schools.

Second, a decision in favor of St. Isidore would likely reaffirm that the government cannot exclude religious institutions from school funding programs. While the Supreme Court has emphasized this point in recent years, many states have failed to update old statutes and remove these sorts of religious exclusions, especially in the context of funding for private schools including special education and preschool programs. So Jewish private schools might find they could become eligible for government funding in ways they previously have not.

Fighting over tax exemptions

Finally, the Supreme Court has agreed to hear Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, a case addressing the limits of tax exemptions for religious employers. While normally the law requires employers to pay for unemployment insurance, Wisconsin exempts organizations that are “operated primarily for religious purposes” from that obligation.

The Wisconsin Supreme Court, however, decided that the Catholic Charities Bureau didn’t qualify for this exception because it provides social services — such as assisting those with mental health and developmental disabilities — that are not inherently religious. These services could, after all, be provided by organizations with “secular motivations.”

There’s good reason to think, under existing precedent, that the Supreme Court will reverse this decision. Courts, under the “religious question doctrine,” are not supposed to make determinations — and allocate legal benefits and burdens — based on their own intuitions about what behaviors are sufficiently religious. In the words of a 1981 Supreme Court decision, “Courts are not the arbiter of scriptural interpretation.”

According to this line of thinking, it could be argued that the Wisconsin Supreme Court violated the First Amendment when it tried to classify which organizations were inherently religious and which weren’t. That’s not the kind of argument courts are allowed to engage in.

Because numerous states have similar tax rules, a Supreme Court ruling reversing the Wisconsin Supreme Court’s decision could have a far-reaching impact. Jewish social justice organizations, motivated in their institutional mission by Jewish principles and values, are prime examples of organizations that might be able to change their operations under a ruling that recognizes a broader category of what it means to be “operated primarily for religious purposes.”

The Court’s upcoming slate of blockbuster First Amendment cases comes at a time of heightened political polarization and controversy, when debates about the separation of church and state can feel like they’ve taken on newly high stakes. And yet, perhaps counterintuitively, the Court’s docket of church-state cases may in fact be positioned to help dial down the political temperature by articulating a more expansive interpretation of the First Amendment — one that ensures that the government does not discount or discriminate against minority and unconventional faith commitments.

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