Freedom of Religion: USA Country Study

Summary

The United States is a constitutional republic with a presidential system. It is the world's oldest representative democracy among nation states. Governments have been elected under its constitution continuously since 1788-89. Today, however, the U.S. is a “backsliding democracy.” Freedom House’s annual survey reduced its rating from 93 to 83 in the last decade, the most significant decline among the world’s stable democracies.

The United States is a constitutional republic with a presidential system. It is the world's oldest representative democracy among nation states. Governments have been elected under its constitution continuously since 1788-89.

America’s democratic tradition dates to British settlements in the 17th century established on principles of consent of the governed. Elected representative assemblies emerged but self-governance was limited by governors appointed by the Crown, decrees of the British monarch and laws of the British parliament. These limits led to the First and Second Continental Congresses made up of representatives of the thirteen colonies. The Second Congress declared the colonies free and independent states and together formed the United States of America on July 4, 1776.

America's governance structure, adopted in a Constitution enacted in 1788, has constitutional limits, including separation of powers, checks and balances on the executive, legislative and judicial branches and a federal system delegating powers to states. There are guarantees for majority rule and minority rights, accountability and transparency, economic freedom, rule of law and human rights (including free expression, free association and freedom of religion). There is vibrant civic participation and a multiparty system.

While founded on essential principles of democracy, the United States has had enduring paradoxes. A government formed on the basis of liberty had largescale practice of slavery, introduced in the colonial period. Slavery was abolished only after a bloody civil war in 1861–65. The United States also engaged in displacement and acts of genocide of Native Americans as part of continuous expansion. Despite constitutional amendments written to prevent it, discrimination against Blacks Americans and other minorities was institutionalized in law in a large part of the country for another century.

While founded on essential principles of democracy, the United States has had enduring paradoxes. A government formed on the basis of liberty had largescale practice of slavery, . . . also engaged in displacement and acts of genocide of Native Americans.

Achieving full democracy took long struggle. Women achieved the franchise only in 1919. Native Americans won the rights of full citizenship in 1924. For Black Americans in the South, it took even longer. The Civil Rights Movement used principles of non-violence and civil disobedience to overcome violence and legal discrimination of Black Americans and to obtain full citizenship rights in the 1950s and 1960s. The Civil Rights Movement’s achievements are today considered an example worldwide of positive democratic change. Unfinished goals to achieve social and economic equality, however, reflect the difficulty that even established democracies have in overcoming entrenched injustice (see "The US Experience" in Free Elections and "Abolition and Minority Rights" in Majority Rule, Minority Rights). Recently, many states re-introduced voting restrictions affecting minority, poorer and older voters.

The Civil Rights Movement’s achievements are today considered an example worldwide of positive democratic change. Unfinished goals to achieve social and economic equality, however, reflect the difficulty that even established democracies have in overcoming entrenched injustice

America’s origins are rooted in struggles for religious freedom and religious missionary movements played a large role in the country’s expansion. The United States remains one of the more religious countries among the developed countries. However, recent surveys of the Pew Forum for Religion and Public Life show that Americans are becoming less religious (see Resources). Today, 29 percent (up from 16 percent in 2007) identify as “nones” (atheists, agnostics or unaffiliated to any religion), while 63 percent identify as Protestant or Roman Catholic (down from 78.4 percent). Two percent are Eastern Orthodox or Mormon. Judaism (1.7 percent) and Islam, Buddhism and Hinduism (each 1 percent), among many other faiths, account for about 7 percent.

The country expanded westward from its original states on the east coast, a process propelled by the 1783 Treaty of Paris by which Britain ceded its Northwest Territories west of the Appalachians. The Louisiana Purchase in 1803 greatly extended US territory to the Pacific Northwest. The Treaty of Guadalupe Hidalgo in 1848, which ended the Mexican-American War, set the country’s contiguous boundaries from the Atlantic to Pacific Oceans. As settlers moved across the continent, Native American nations were repeatedly displaced and forced onto territory commonly called reservations but they constitute separate nation states. (There are 573 federally recognized tribal governments.)

America’s origins are rooted in struggles for religious freedom and religious missionary movements played a large role in the country’s expansion. The United States remains one of the more religious countries among the developed countries.

The U.S.’s 48 contiguous states are bordered by Canada to the north and Mexico to the south. There are two non-contiguous states. Alaska, north of Canada’s province of British Columbia, was purchased from Russia in 1867. Hawaii, an island chain in the Pacific, was annexed in 1898. (The two became states in 1959.) The U.S. also possesses self-governing island territories (Puerto Rico, US Virgin Islands, Guam); unincorporated territories; and Guantanamo Bay in Cuba.

The US is the third largest country in the world in territory after Russia and Canada, with a total area of 9.6 million sq. kilometers. It is the third most populous (after China and India) at 340 million people. The 2024 projected nominal gross domestic product (GDP) is $28.8 trillion, $10 trillion higher than for the People’s Republic of China, the world's second-ranked economy. GDP per capita for 2024 is listed at $85,373, sixth highest in the world.

History

The Colonies as Religious Refuge

Several of America's original English colonies were established as refuges for religious dissidents. The first were the 102 survivors of the Mayflower voyage, known as Pilgrims, who established the Plymouth Colony in 1620. The group was made up of “separatists,” a faction of the larger Puritan movement who refused to recognize the Church of England because it would not remove Roman Catholic practices, influences and structures.

Several of America's original English colonies were established as refuges for religious dissidents. The first were the 102 survivors of the Mayflower voyage, known as Pilgrims, who established the Plymouth Colony in 1620.

Less doctrinal Puritans took the same voyage to establish the Massachusetts Bay Colony. The two groups unified theological positions in 1648 as Congregationalists, so called because of the belief in the autonomy of voluntarily formed congregations.

As England's colonies in the New World expanded, many religious groups sought similar refuge to practice their beliefs free from the persecution and social ostracism they experienced in Europe. These included Protestant sects from various countries, including Anabaptists, Presbyterians and the Religious Society of Friends (Quakers), as well as Catholics and Jews.

The Origins of Religious Freedom as a Principle of Governance

Some groups were as intolerant of others as their persecutors had been of them. The Puritans of the Massachusetts Bay Colony began as a formal theocracy. They were not the only ones to insist on conformity. At the time of the country's founding, nine of the 13 states had official religions and laws restricting or discriminating against other religious observance.

Pennsylvania took a different path. Its dominant group, Quakers, were persecuted in other states for their adherence to beliefs that clashed with Congregational and Episcopal Churches. William Penn, a Quaker leader, wrote Pennsylvania’s Frame of Government (1682). It declared: “[Citizens] shall in no ways be molested or prejudiced for their religious persuasion or practice . . . nor shall they be compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever.”

The Pennsylvania Frame of Government was an early landmark in the history of constitutionally protected religious freedom. Pennsylvania became a haven for many small European sects, including Amish, Mennonites, Dunkers, Confessors of the Glory of Christ, Moravians and German Baptist groups.

Religious Belief and the Founding of the Republic

The American Revolution was motivated in part by a desire to protect the religious autonomy enjoyed by many communities against British control. Some advocates of the Revolution were millennialists who believed that defeating the “evil” British would bring about the second coming of Christ. Others, like the famous Boston preacher Jonathan Mayhew, asserted that it was a Christian's duty to oppose tyranny. The cleric Abraham Keteltas described the American Revolution more starkly as “the cause of heaven against hell — of the kind Parent of the Universe against the prince of darkness and the destroyer of the human race.”

Article VI of the Constitution prohibits religious tests for federal office, while its First Amendment bans the establishment of an official religion and guarantees the freest exercise of religious worship.

Thomas Jefferson, a non-denominational believer in Deism, considered such religiosity as dangerous to the unity of the fledgling country. His own state, Virginia, imposed penalties, including death, for deviant religious observance, especially that of Quakers and Baptists. Jefferson thus drafted the Virginia Statute for Establishing Religious Freedom. Guided by another founder, James Madison, the statute was adopted in 1786 after Jefferson’s appointment as minister plenipotentiary to France. 

Some Founders embraced the idea of adopting a national state religion, but Jefferson, James Madison and other framers at the Constitutional Convention opposed imposing any uniformity of belief by a national government. They won the debate. As a result, Article VI of the Constitution prohibits religious tests for federal office, while its First Amendment bans the establishment of an official religion and guarantees the freest exercise of religious worship.

“To Bigotry No Sanction” & A Wall of Separation

President George Washington and Vice President John Adams both believed in a role for religion in national life but became supporters of separation of religion from the state. George Washington’s views were famously stated in his pledge in 1790 to the Jewish congregation of the Touro Synagogue in Newport, Rhode Island. (It stands today, among the oldest synagogues in the world.) In regard to religion, Washington wrote, the new republic would give “to bigotry no sanction, to persecution no assistance."

Among the first treaties signed by the US government were with the Muslim Barbary States in North Africa in 1796. The Treaty of Tripoli, whose principal aim was to end acts of piracy threatening trans-Atlantic trade, declared:

[T]he government of the United States is not in any sense founded on the Christian religion and it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

This provision in the treaty (Article 11) was considered by President Adams as necessary to demonstrate the neutral intentions of the US government towards a predominantly Muslim group of nations. It was a clear, early statement that the United States is a secular state and its government is religiously neutral.

Thomas Jefferson argued for a broader constitutional doctrine as the nation’s third president. In a letter to the Danbury Baptist Association in Connecticut in 1802, he wrote there should be “a wall of separation between church and state.” Supreme Court decisions on religious issues have often cited this phrase as the intent of the First Amendment (see Freedom of Religion below).

Religious Pluralism

In practice, the separation of religion and state meant a continued flourishing of religious beliefs, practices and institutions that functioned without state interference. A wide variety of religions and sects found a haven in territory stretching to the Pacific Ocean. Most religious groups were Protestant. Mirroring colonial history, different missionary movements arose adopting a Christian nationalist view of the country (Congregationalist, Methodist, Baptist and others). These were central to developing and organizing settler communities. Another group, the Church of Latter Day Saints, pioneered a new state (Utah) after experiencing persecution in the East.

In practice, the separation of religion and state meant a continued flourishing of religious beliefs, practices and institutions that functioned without state interference. A wide variety of religions and sects found a haven in territory stretching to the Pacific Ocean.

African Americans established their own denominations, including the African Methodist Episcopal (AME) Church, Baptist and other congregations. This was due to major Protestant groups justifying slavery and discrimination in their religious doctrine and practice. These denominations remain the most widely practiced by Black Americans. Several denominations (Quakers, Unitarian-Universalists and others) also welcomed Black Americans. Since the Civil Rights Movement, other congregations and faiths have increased in Black membership.

While most Americans practiced Protestant Christianity, Catholicism became more widely practiced starting in the mid-18th century due to immigration from predominantly Catholic regions and countries. Roman Catholicism has become the second most widely practiced faith. Eastern Orthodox Christianity had a smaller but significant presence through immigration from the Balkans and Russia. (Today, around twenty percent of Americans identify as Roman Catholic and two percent as Eastern Orthodox.)

Judaism became more widely practiced with immigration from Eastern Europe as Jews escaped pogroms in the late 19th and early 20th centuries and later escaped Nazi tyranny. Several branches (Orthodox, Conservative and Reform) are practiced. Today the United States has the largest diaspora population of Jews in the world (between 5.6 and 6.8 million).

Adherents of Islam, Hinduism, and Buddhism, among other smaller faiths, have found a home in the United States and all have grown in number since 1965 due to adoption of a new immigration law. They account for a total of five percent of today’s population.

Religious Discrimination

Separation of church and state did not mean an end to religious discrimination or persecution. There were many acts of violence and repression against religious groups in America’s history due to religious and racial intolerance by mainline denominations. There was also violence against Native Americans due to their indigenous faiths as well as of Black Americans. In the Jim Crow South, there was widespread burning and defacing of Black churches.

Separation of church and state did not mean an end to religious discrimination or persecution. There were many acts of violence and repression against religious groups in America’s history due to religious and racial intolerance by mainline denominations.

Throughout the 19th and 20th centuries, general bigotry and discrimination was also common for Jews, Muslims, Roman Catholics, non-traditional Protestant sects and practitioners of Asian religions (especially by Chinese immigrants), as well as of agnostics and atheists. Access to jobs, property, schools and higher education were restricted by informal as well as legalized discrimination. There were formal quotas adopted in institutions of higher education especially to limit the number of Jewish students. (Today, anti-Semitic hate crimes are the most frequently reported among religious groups.)

Many legislative and court actions have been taken to try to eliminate discrimination based on religion. These are described below.

Freedom of Religion

As noted, the basic principles of freedom of religion in the United States are grounded in Article VI of the Constitution barring a religious test for federal office together with the First Amendment to the Constitution. It states:

Congress shall make no law respecting the establishment of religion or prohibiting the exercise thereof….

This was the most definitive statement regarding freedom of religion among nation states at the time and established a new paradigm (see Essential Principles and History). The First Amendment allowed full practice of many different religious faiths (see History above).

Alexis de Tocqueville wrote in Democracy in America, “[A]ll citizens in the United States . . . believed religion to be indispensable to the maintenance of republican institutions.”

Religious institutions had more than a spiritual function in both colonial and US history. They served as organizing centers for developing communities and formed the bulk of social service organizations in America (see also Freedom of Association). This had political significance. As Alexis de Tocqueville wrote in Democracy in America, “[A]ll citizens in the United States . . . believed religion to be indispensable to the maintenance of republican institutions.”

For one, religiously based groups were a community bulwark capable of mobilizing citizens to act on their own behalf and on behalf of others. As well, they spearheaded many movements for change that expanded and fulfilled principles of democracy, including those for abolition, suffrage, labor rights and civil rights.

[T]he role of religion in American democracy has a complex history. Appeals to religion were common both to justify and oppose slavery and legalized discrimination. The supposed right of “Christian discovery” was used in Supreme Court rulings justifying displacement and genocide of Native Americans.

At the same time, the role of religion in American democracy has a complex history. Appeals to religion were common both to justify and oppose slavery and legalized discrimination. The supposed right of “Christian discovery” was used in Supreme Court rulings justifying displacement and genocide of Native Americans. Some counter arguments made in Congress and by Native American tribes against legislative approval of displacement were also based on religious principles, but these arguments lost.

This section does not examine all aspects of the issue of freedom of religion or its history but rather focuses on constitutional debates involving how freedom of religion was interpreted in practice. These debates formed the basis of national discussion that were generally decided in rulings of the Supreme Court, whose decisions are the law of the land. Those debates are ongoing (see also Current Issues).

Freedom of Religion, the Constitution, and the Supreme Court

Early decisions of the Supreme Court interpreted the First Amendment's Establishment Clause as applying only to the federal government, which left individual states the power to choose whether to maintain official religions. In the end, all the states decided the issue according to the national principle of separation of church and state. All that had official religions disestablished their respective churches. (Massachusetts was the last to do so in 1833.)

The 14th Amendment to the Constitution, enacted soon after the Civil War, applied the protections of the Bill of Rights — including the Establishment and Free Exercise Clauses in the First Amendment — to the states. Still, many issues remained unclear, such as whether federal or state law could supersede religious practice.

[M]any issues remained unclear, such as whether federal or state law could supersede religious practice.

In an important precedent, Reynolds v. United States (1878), the Supreme Court upheld a federal law against polygamy despite a man's claims that the practice was a religious duty under the Church of Latter Day Saints. The Supreme Court (referring to Jefferson's letter to the Danbury Baptists) held that the Constitution barred Congress from interfering in “religious opinion,” but it was empowered to regulate “actions that were in violation of social duties or subversive of good order.” Reynolds v. United States remains a precedent for laws against polygamy and other practices seen as violating general norms set in secular law.

The Essential Principle in More Detail

One major Supreme Court decision, West Virginia State Board Of Education V. Barnette (1943), came to define principles of religious freedom and conscience, especially in relation to freedom of expression.

An earlier case, Minersville School District v. Gobitis (1940), ruled in favor of the school district that expelled two students from school for refusing to pledge allegiance to the US flag, which was required by state law. The children were Jehovah Witnesses, which considered a pledge to an object to be sacrilegious. Federal district and appellate courts ruled that the expulsion violated the students’ religious expression. But the Supreme Court, citing Reynolds, rejected the lower courts’ rulings and upheld the state’s power to impose “political responsibilities.”

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
Justice Robert Jackson, 1948

Just three years later, the Supreme Court reversed that decision in the 1943 West Virginia v. Barnette case, also involving two Jehovah Witness adherents expelled for not pledging allegiance. In the majority opinion, Justice Robert Jackson wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Legislatures and schools, therefore, could not force children to state the pledge of allegiance if it violated their conscience or religious belief.

Another case, Everson v. Board of Education of Ewing (1947), involved a New Jersey taxpayer's objection to public funds being used to reimburse the transportation of students to a private Catholic school. In a complex ruling, the Supreme Court upheld the practice in a 5-4 decision as furthering a legitimate state purpose (the education of all children). But all nine justices joined a sweeping opinion by Justice Hugo Black in which he defined the Supreme Court’s understanding of the First Amendment. He wrote:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for . . . professing religious beliefs or disbeliefs, [or] for church attendance or non-attendance. No tax . . . can be levied to support any religious activities or institutions. . . . Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”

Hugo Black’s 1947 ruling was the first time the Supreme Court had definitively applied the Establishment Clause to the states employing the 14th Amendment’s equal protection clause.

Hugo Black’s 1947 ruling was the first time the Supreme Court had definitively applied the Establishment Clause to the states employing the 14th Amendment’s equal protection clause. Future decisions, upholding the Barnette and Everson rulings, would end obligatory prayer and Bible reading in public schools (Engel v. Vitale, 1962) as well as any government payment of private school teachers' salaries (Lemon v. Kurtzman, 1971).

Plural Interpretations

Yet, the tension between the establishment clause and the free exercise clause continued to be at issue.

In Sherbert v. Verner (1963), for example, the free exercise of religion was affirmed. The Supreme Court held that a 7th-Day Adventist could not be denied unemployment compensation after being fired for refusing to work on Saturdays, which was prohibited by the employee’s religion. A new “Sherbert Test” stated that individuals should not be pressured to violate or alter the exercise of their religion by imposing a government penalty or withholding a government benefit except where a compelling state interest could be shown.

In 1990, however, the Supreme Court gave the original Reynolds standard renewed weight. In Employment Division v. Smith, the majority opinion upheld the state of Oregon’s right to dismiss employees for banned drug use in a case involving two members of the Native American Church fired when peyote was found in their blood system in a drug test. The employees stated peyote use was required by religious rituals. Justice Antonin Scalia ruled that the law was constitutional since it was not designed to prevent a specific religious practice but was neutrally based for all members of society.

Both religious liberty and civil liberty groups objected to the ruling. As a result of their lobbying, Congress passed the Restoration of Freedom of Religion Act (RFRA) in 1996 to create a statutory basis for preventing government from restricting specific religious practices. This made the “Sherbert Test” the stronger precedent than Reynolds in federal law. The Supreme Court later ruled later, however, that the RFRA applies only to federal, not state, laws.

Fine Distinctions

Both religious liberty and civil liberty groups objected to the ruling. As a result of their lobbying, Congress passed the Restoration of Freedom of Religion Act (RFRA) in 1996 to create a statutory basis for preventing government from restricting specific religious practices.

The boundaries of these precedents continue to be debated. On a single day in 2005, the Supreme Court handed down two decisions that interpreted the Sherbert Test in separate ways. One decision determined that the display of the Ten Commandments in a Kentucky courthouse ordered by the chief judge to be unconstitutional (McCreary County v. ACLU). The second upheld the constitutionality of another long-standing display of the Ten Commandments outside the Texas Capitol building (Van Orden v. Perry). The grounds were that the court officer was openly prescribing specific religious tenets while the monument did not have such an intent.

Other decisions added to the debate over the meaning and scope of the Establishment and Free Exercise clauses. In June 2014, for example, the Supreme Court narrowly decided (5-4) that the Religious Freedom Restoration Act must be strictly interpreted. It held that private and for-profit corporations should not be forced to provide health care coverage (in this case for contraception, as required by the Affordable Care Act) if doing so violated religious beliefs or practices (Burwell v. Hobby Lobby). The government argued that interpreting the RFRA in this way was a license for private and non-for-profit groups to decide which federal laws they might or might not obey.

Current Issues

In recent years, the United States of America has faced a crisis of democracy that political scientists have identified as stemming from weaknesses in its democratic institutions, electoral system and constitutional structure. This has also affected issues related to freedom of religion (see below).

Political conditions in the U.S. have mirrored those seen in many democracies witnessing a rise in anti-immigrant sentiment and far-right politics (such as France and Netherlands). Yet, only a few established democracies (such as Poland and Israel) have seen as steep a drop in Freedom House’s ratings in its Annual Survey. Since 2014, Freedom House reduced the US rating by ten points, from 93 to 83.

In recent years, the United States of America has faced a crisis of democracy that political scientists have identified as stemming from weaknesses in its democratic institutions, electoral system and constitutional structure.

In the 2015-16 surveys, Freedom House cited several reasons for drops in scores. These included: vulnerabilities of elections to foreign interference; legislative gridlock due to extreme partisanship; increasing economic disparities; dysfunctions in the criminal justice system; among other issues. The period of Donald Trump’s presidency (2017-2021) brought declines in rating due to lack of ethics and transparency, the violation of migrants’ rights, abuses of power and a president’s encouragement of a violent attempt to overturn a free and fair election to stay in power (see also Consent of the Governed and Accountability and Transparency).

Democracy scholars point to several institutional weaknesses in the US system, especially its anti-majoritarian use of an Electoral College (as opposed to a national popular vote) to determine its national officers; the anti-majoritarian composition and rules of the Senate; and the lack of specified terms and mandatory retirement for high court judges. These weaknesses have been highlighted by anti-democratic political behavior (such as tolerance for political violence and refusal to accept electoral outcomes) on the part of one major party (see Resources.)

That party, the Republican Party (GOP), is one of two major parties in the United States. It largely supported the adoption of illiberal policies and practices by Donald Trump noted by Freedom House above. It then exonerated Trump for his abuse of power and attempted use of violence to overturn the 2020 election. The GOP has nominated Trump as its 2024 presidential candidate despite court findings of business fraud, sexual abuse and illegal efforts to influence the 2016 election in civil and criminal trials in New York. These court findings are in addition to ongoing federal and state indictments for attempting to overthrow a free election (see below). 

The same major party, when in control of state legislatures, has been found by state and federal courts to abuse power, erode voting rights and gerrymander on such a level as to achieve supermajorities in state legislatures and distort federal representation (see "Elusive Equality" in Free Elections). As well, Republican-dominated state legislatures acted to restrict the teaching of certain subjects (like slavery and gender), prohibited state schools from adopting diversity practices, and allowed the banning of books (see "Restrictions vs. Unrestricted Freedom" and "Other Free Speech Debates" in Free Expression).

According to democracy and constitutional scholars, the lack of specified terms and mandatory retirement for America’s high court has resulted in a distortion of judicial power that has aggravated the weaknesses in the US system. For one, despite presidents of the other major party holding the office for five of the last eight terms (20 of 32 years), justices appointed by Republican presidents dominate the Court. This includes a five-justice majority appointed by presidents elected in 2000 and 2016 who had lost the national popular vote but won office due to the Electoral College.

This long-standing single-party dominance of the Court has coincided with partisan decisions favoring that party’s standing and policies over the last decade. These include decisions:

• to allow unlimited financing of political campaigns by the wealthy and corporations (Citizens United);
• to severely weaken the Voting Rights Act and allow state restrictions on voting to limit minority participation (Shelby v. Holder, Brnovich v. DNC and Alexander v. NAACP State Conference);
• to restrict election participation by purging voter rolls (Ohio A. Philip Randolph Institute v. Husted);
• to allow extreme partisan gerrymandering (Rucho v. Common Cause);
• to restrict government agencies (West Virginia v. EPA);
• to limit affirmative action (Students for Fair Admissions v. Harvard and UNC cases); and
• to overturn previously protected freedoms, such as the right to an abortion (Dobbs v. Jackson Women’s Health).

In the view of constitutional law experts and historians, several Supreme Court cases in 2024 mark a more alarming turn that weakens constitutional limits, separation of powers and rule of law (see Resources). 

In Donald Trump v. USA, the Supreme Court heard arguments in an appeal after both a District judge and Appellate Court ruled decisively against a legal claim of immunity for all actions taken by a president. The claim was brought in an application to dismiss the federal case against Trump for attempting to overthrow the 2020 election. After considerable delay, the Supreme Court issued a 6-3 ruling, with all Republican-nominated judges in the majority, reversing the Appellate and District Courts and asserting that presidents have “absolute immunity” for core responsibilities and a “presumption of immunity” for all “official acts.” The delay and the ruling remanding the case to District Court for further review ensured that no trial would be conducted prior to the 2024 presidential election. In dissent, Justice Ketanji Brown Jackson called the ruling a “paradigm shift” in the US Constitution by creating a unitary executive without accountability. Justice Sonia Sotomayor stated, “In every use of official power, the president is now a king above the law.”

The Supreme Courts’ decisions over the last decade generally have overruled federal laws, made novel interpretations of constitutional provisions and overturned or re-interpreted long-standing precedents. 

A prior ruling (Anderson v. Colorado) overturned the Colorado Supreme Court’s determination that Donald Trump had committed insurrection and thus was barred from appearing on that state’s 2024 presidential ballot by Section 3 of the 14th Amendment. Section 3 prohibits anyone who has engaged in insurrections from holding either federal or state office. The Supreme Court, without citing a constitutional basis, stated the provision had no effect without a specific Congressional law giving it force.

The Supreme Court ruling in Loper Bright Enterprises v. Raimondo reversed a 40-year-old precedent (the Chevron Ruling) that the judicial branch should defer to the expertise of executive agencies in implementing laws passed by Congress. The judicial branch now has power to determine if an agency has authority to issue any regulation. (In this instance, the Court overruled the EPA’s “good neighbor policy” that limited states from polluting other states.) 

The Supreme Courts’ decisions over the last decade generally have overruled federal laws, made novel interpretations of constitutional provisions and overturned or re-interpreted long-standing precedents. Such assertion of power, together with reports of ethical violations by two Supreme Court justices, prompted calls for Supreme Court reform, including a proposal for term limits and binding ethics requirements that are common in other democracies. But such reform is unlikely in current political circumstances.

In the area of freedom of religion, recent Supreme Court decisions also appeared partisan, favoring religious and conservative groups aligned with the Republican Party that sought to overturn long-standing understanding of the Establishment Clause.

More generally, there is a rise of religious intolerance. After a period in which smaller religious faiths had witnessed a decline in hate crimes, there was a marked increase in such acts in recent years, especially those directed at Jews and Muslims. 

For example, two decisions of the Supreme Court held that private businesses could refuse service to LGBTQ+ individuals based on religious beliefs despite the protections of the Constitution’s 14th Amendment and the Civil Rights Act of 1964 requiring equal treatment of citizens by public businesses (Masterpiece Cakeshop v. Colorado Equal Employment Commission and Creative Design v. Ellis). These and other decisions did not formally reverse precedent, but they placed the current Court at odds with Hugo Black’s interpretation of the Establishment Clause (see Freedom of Religion above).

The Supreme Court’s decisions coincide with political efforts by conservative and religious groups adopting a Christian nationalist ideology to re-introduce a religious foundation to the US Constitution notwithstanding the founders’ intent to separate religion from the state. Several state laws have been passed in 2023-24 with the aim of reversing prior Supreme Court precedents, such as adopting public vouchers for religious schools, mandating that schools post the Ten Commandments in every classroom or including instruction in the Christian Bible. Religiously based laws have also been enacted against abortion, contraception, In-Vitro Fertilization and gender affirming treatment for transgender youth that are being considered by the Supreme Court.

More generally, there is a rise of religious intolerance. After a period in which smaller religious faiths had witnessed a decline in hate crimes, there was a marked increase in such acts in recent years, especially those directed at Jews and Muslims. The number of anti-Semitic and anti-Muslim hate crimes escalated in 2023-24 partly in relation to protests regarding the Hamas attack on Israel on October 7 and the subsequent Israel-Hamas war.