Religious liberty in 2025: Protecting religious autonomy

After not hearing any blockbuster religious liberty cases so far this term, the Supreme Court agreed in December to hear one that promises to be big. It deals with church autonomy—an important aspect of religious liberty that has sparked many lawsuits.

Lael Weinberger is an attorney in private practice in Washington, D.C., a fellow at Stanford Law School, and a contributor for WORLD Opinions. Previously, he was a Harvard Law School lecturer and clerked for Supreme Court Justice Neil Gorsuch. He has written extensively on religious liberty, contributed to WORLD Opinions, and grew up reading God’s World News.

I recently conducted an email interview with Weinberger about religious autonomy and what’s coming up at the Supreme Court. Here are edited excerpts from our conversation.

What are a few of the key issues in religious liberty that courts will wrestle with—and the Supreme Court may have to take up—in 2025?

The Supreme Court just announced that it will hear an important religious liberty case from Wisconsin later in 2025. We’ll be discussing this at more length in the future, I suspect, so for now, just a quick teaser: Wisconsin has a religious exemption from some state unemployment taxes. The controversy comes from the way it defines who is religious enough to qualify for the tax exemption: it has to be an organization run by a church or church association and it has to be operated for “primarily” religious purposes. But can the government decide what’s a church, and what is sufficiently “religious” to qualify? It’s a fundamental question—how much can the government do to define what counts as religion?

Of course, when a case reaches the Supreme Court, whatever topic it raises gets lots of attention—deservedly so.

While the Supreme Court may take only a handful of cases dealing with the First Amendment, or none, lower courts don’t have that luxury. There’s a lot happening in those courts, right?

Definitely. It’s only been a few years since the Supreme Court dramatically updated its approach to the First Amendment’s free exercise clause to be more protective of religious liberty. We’re watching this play out in the lower courts now. Overall, it has led to some significant wins for religious liberty.

For example, the Fellowship of Christian Athletes (FCA), a ministry that engages in many school sports contexts, has won some important cases over the past couple of years against public school policies that discriminated against religious organizations. The basic principle is that the government (public schools included) can’t treat religion or religious groups as second-class members of society. If they try to exclude religious groups—as some schools did in trying to keep out FCA—that discriminatory policy will be strictly scrutinized by the courts.

But judges can be creative in finding ways around these cases, when they want to.

Sure. Some try to find wiggle room in other parts of the free exercise clause analysis. My friend Eric Rassbach, an attorney with the Becket Fund for Religious Liberty, explains this more elsewhere. Religious exercise must be carefully protected, courts sometimes say, but maybe a particular case doesn’t present an actual burden on religion, so no need to apply the First Amendment.

Or maybe the religious people bringing the suit are not the right kind of religious people. The Wisconsin case that the Supreme Court will hear later this year is one example.

Also consider a case coming from New York. The state requires employer health insurance to cover abortions but provides an exemption for religious organizations. But only certain kinds of religious organizations: those that have the purpose of inculcating religious values and that primarily employ and serve those of the same religious persuasion. Religious organizations wouldn’t get the benefit of this exemption if they serve those in need who don’t share the same faith. A petition that asks the Supreme Court to review this case is also pending.

One key area that you have written on is church or religious autonomy. What are the origins of this concept, how far does it reach, and where are the gray areas where conflicts have arisen?

Church autonomy is the idea that the First Amendment’s religion clauses protect religious institutions’ ability to run their own affairs without the government telling them what to do.

The idea that the state can’t tell churches what to do goes far back into American history and much further back still in the history of church and state in the Western tradition. If the state—whether a king or a congress—can pick the leaders of a church or tell a church who can be a member and who can’t, then the ultimate control of religion is really in the hands of the state.

But it goes back even further, right?

Certainly. The idea that church and state should be separate is ultimately an idea that can be traced back to the Bible: God, sovereign over all, entrusted human authorities with important tasks. But God didn’t entrust all authority to just one human or just one human institution. He ordained civil government for important tasks, the church with other important tasks. These are both God-ordained jurisdictions, with their own responsibilities.

The church doesn’t arrest criminals; the state doesn’t decide who can be baptized or partake of the Lord’s Supper. I believe we are blessed to be in a country that recognizes this distinction in authorities in our fundamental national law—the Constitution’s First Amendment.

Of course, there are tough questions that come up when figuring out where the lines should be drawn, and sometimes there are areas of overlap. Churches should decide their standards for membership or for leaders. But in an extreme case where a church leader has engaged in criminal misconduct, like clergy sexual abuse, Romans 13 indicates that there is an important role for the state in protecting the innocent and punishing wrongdoing.

Some claim that religious institutions and organizations should be able, as a matter of constitutional right, to hire only those who are like-minded—so-called co-religionists. What have courts said about such claims?

One point of confusion that has arisen in recent cases is the idea that religious organizations only have religious liberty protections when choosing ministers or religious leaders. For instance, consider the case of the Seattle Union Gospel Mission, a Christian ministry to the homeless. The mission sought to hire staff—those who interacted with the homeless individuals that the mission served—who shared its religious beliefs. When it refused to hire an individual who disagreed in their religious views on the nature of marriage, the Washington Supreme Court said that this was employment discrimination and that the First Amendment didn’t apply. I think this is too narrow a view of what a religious organization can do.

It’s up to the religious body to define its mission and how it will pursue that mission. There are some details where I think the choice of leaders might require additional constitutional safeguards. But where a religious entity is clear about what its ministry requires, I think the broader principle of church autonomy—protected by the First Amendment—should protect churches from having courts second-guess their religious principles and how they pursue those principles through mission-driven employment.

It’s worth noting that, beyond the First Amendment, federal employment law does explicitly protect the right of religious organizations to limit their employment to those who are co-religionists. And though this exemption hasn’t been applied a great deal by courts, its protections appear to be fairly broad.

Many religious liberty and free speech issues come at the juncture of transgender rights claims and free exercise or free speech claims under the First Amendment. What principles should guide the resolution of such disputes?

The Constitution doesn’t protect us from being offended. Debates about gender identity stem from deep disagreements about ethics and human nature and theology. With such profound areas of disagreement, strong feelings are inevitable. Free speech and freedom of religion mean that people on all sides of the debates will hear views they believe to be wrong and likely offensive. This in turn demands a lot of the patience and maturity of American citizens engaged in the debate! Christians have a higher calling still: Ephesians 4:15 says to speak the truth with love.

Church autonomy arguments resonate when courts speak of a “ministerial exception” for some church employees. Is there a difference?

The ministerial exception is a label that courts have used in describing the application of employment law to religious institutions’ decisions about whom to hire and fire as leaders. Should a law that prohibits employment discrimination based on sex require the Roman Catholic church to hire women as priests, contrary to church doctrine? The ministerial exception says no, the First Amendment requires an exception when the employment in question involves a religious institution choosing to hire to further its religious mission. The Supreme Court has rightly described this as a particular application of the broader principle of church autonomy.

What about private, for-profit businesses that seek to operate based on Biblical principles?

This is one of the gray areas in the current case law about church autonomy doctrine. It’s clear that a house of worship—church, synagogue, mosque, and the like—is protected. It’s also easy to apply the same protections to a religious school run by a house of worship.

But it can get tricky the further one gets from this core application of the rule. What about religious schools that aren’t connected to a house of worship? What about a school that has a faith tradition but doesn’t require teachers or students to subscribe to that faith tradition? What about a for-profit business run by serious believers?

It seems that church autonomy is an elastic concept but yet one that can’t be stretched too far.

Yes, there’s a risk that, in trying to lump too many of these under the rubric of “church autonomy,” we end up with law that doesn’t really fit the problem. I don’t think that we should try to make religious businesses into churches. I think that the special “church autonomy doctrine” best fits situations involving houses of worship. Free exercise principles apply outside of that context, but the special rules around church autonomy and its limits can’t be endlessly expanded (as I’ve explained at length elsewhere). Drawing the lines is always the hard part, but it’s important.