Prayer in the Courtroom: Can Judges Lead Religious Expression?

         In recent years, disputes over religion in public life have extended beyond schools and legislative settings into new and more complex areas. One such controversy is presented in Freedom From Religion Foundation v. Mack, a case involving a Texas judge who incorporated prayer into his courtroom proceedings. Before hearings began, Judge Wayne Mack would invite those present (litigants, defendants, attorneys, and observers) to stand for a voluntary prayer, sometimes led by himself or by a chaplain. Although participation was not formally required, the practice took place within the formal structure of judicial proceedings. The Freedom From Religion Foundation challenged this practice, arguing that it violates the Establishment Clause of the First Amendment. While lower courts have grappled with the issue, the Supreme Court has not yet issued a definitive ruling, leaving the constitutional question unresolved.

The controversy raises a familiar but difficult issue: whether a government official may incorporate religious expression into an official proceeding without crossing the line into unconstitutional endorsement. Judge Mack and his supporters defend the practice as voluntary and consistent with longstanding traditions of public prayer in American government. They argue that such expressions reflect the historical role of religion in public life and do not compel participation. The plaintiffs, however, contend that the courtroom context fundamentally alters the constitutional analysis. Unlike legislative settings, where individuals may observe or leave freely, those in a courtroom are subject to judicial authority and may feel pressure to conform. In their view, prayer in this setting carries an implicit coercive force that violates the Establishment Clause.

The most relevant precedents are Marsh v. Chambers and Town of Greece v. Galloway, both of which upheld the constitutionality of legislative prayer. In Marsh, the Supreme Court emphasized the historical tradition of opening legislative sessions with prayer, concluding that such practices were deeply embedded in the nation’s political history. Similarly, in Town of Greece, the Court upheld sectarian prayers at town meetings, reasoning that they were permissible so long as they did not coerce participation or discriminate among faiths. These decisions suggest that government-affiliated prayer is not inherently unconstitutional and may be permissible when rooted in tradition and conducted in a non-coercive manner.

However, the courtroom setting presents a critical distinction. In both Marsh and Town of Greece, the Court relied heavily on the voluntary nature of attendance and participation. Legislative sessions and town meetings are, at least in principle, forums that individuals may choose to attend or avoid. A courtroom, by contrast, is a mandatory environment for many participants. Defendants, litigants, and witnesses are often required to be present and cannot easily opt out of proceedings. This difference raises serious concerns about coercion. Even if prayer is formally optional, the authority of the judge, who controls outcomes and exercises significant power, may create pressure to participate. The presence of that authority complicates the assumption that such prayer is genuinely voluntary.

This distinction also highlights a broader issue within Establishment Clause doctrine: the role of context in determining whether a government practice constitutes endorsement of religion. The Supreme Court’s more recent decisions have placed increasing emphasis on historical practices and traditions. Yet tradition alone may not resolve cases where the surrounding circumstances differ in meaningful ways. The courtroom is not just another public forum; it is a site of adjudication, where individuals’ rights, obligations, and liberties are directly at stake. The power dynamics in that setting amplify the potential for perceived or actual coercion.

In my view, Freedom From Religion Foundation v. Mack demonstrates the limits of extending legislative prayer precedents into fundamentally different contexts. While Marsh and Town of Greece support the idea that some forms of government-associated prayer are constitutionally permissible, they do not fully account for the coercive pressures that may arise in a courtroom. The Establishment Clause is not only concerned with explicit compulsion but also with subtle forms of pressure and the appearance of governmental endorsement. When a judge invites or leads prayer as part of official proceedings, it risks signaling that participation is expected or favored, even if not formally required.

In my view, Judge Mack’s practice is unconstitutional. Although some lower courts have been more receptive to extending legislative prayer precedents, I agree with the reasoning advanced by the plaintiffs that the courtroom context introduces a level of coercion that those precedents did not contemplate. Marsh and Town of Greece cannot simply be transplanted into the judicial setting without accounting for the fundamentally different role of a judge. The Establishment Clause is designed to prevent the government from placing its authority behind religious practice, and when a judge invites or leads prayer as part of official proceedings, that authority is unmistakably present. Ultimately, this case highlights the importance of context in interpreting the First Amendment. The line between permissible acknowledgment of religion and unconstitutional endorsement is not always clear, but it becomes sharper in environments where power and vulnerability intersect. Extending legislative prayer practices into that space risks undermining the principle of governmental neutrality that the Establishment Clause is meant to protect.

https://www.oyez.org/cases/2013/12-696

https://www.oyez.org/cases/1982/82-23

https://harvardlawreview.org/print/vol-135/freedom-from-religion-foundation-inc-v-mack/

https://www.au.org/how-we-protect-religious-freedom/legal-cases/cases/freedom-from-religion-foundation-v-mack/

Stinson v. Fayetteville School District: Can Arkansas require the Ten Commandments to be displayed in all classrooms?

The case of Stinson v. Fayetteville School District addressed a Constitutional question regarding Arkansas Act 573, a law passed by the Arkansas legislature on April 15, 2025. Act 573 amends and expands Arkansas Code § 1-4-133 to require all public schools in the state to display the Ten Commandments. Each of the Ten Commandments displays is derived from the King James Version of the Protestant Bible. The Act states that the text must be “legible to a person with average vision from anywhere in the room” and be “prominently displayed” in a “conspicuous place” in every “elementary and secondary school library and classroom.” Additionally, the displays had to meet a minimum size requirement of 16 by 20 inches and must be donated or funded through private donations rather than public money.

Act 573 caught immediate attention due to the constitutional controversy. Shortly after its passing, parents from multiple Arkansas school districts challenged this act on First Amendment grounds. The Stitson family argued that the Act “is a direct infringement of our religious-freedom rights” and “The version of the Ten Commandments mandated by Act 573 conflicts with our family’s Jewish tenets and practice, and our belief that our children should receive their religious instruction at home and within our faith community, not from government officials.” Other families of diverse religious backgrounds offered similar arguments against the constitutionality of Act 573.

On August 4, 2025, a District Court in Arkansas preliminarily enjoined four Arkansas school districts from complying with Arkansas Act 573. Act 573 went into effect statewide one day later on August 5, 2025. The Court decided in the injunction that the Act was likely to violate the Establishment and Free Exercise Clauses of the First Amendment. The court ruled that “Act 573’s purpose is only to display a sacred, religious text in a prominent place in every public-school classroom. And the only reason to display a sacred, religious text in every classroom is to proselytize to children.”

The primary question regarding the First Amendment is whether the Arkansas Act 573 violates the students' Free Exercise of religion as well as the Establishment Clause of the First Amendment. The Establishment Clause directly prohibits government sponsorship or promotion of any religion. The Court ruled in this case that requiring the Ten Commandments to be displayed in every classroom constitutes an impermissible endorsement. This was in part due to the displays not being presented as part of a broader educational or historical context; rather, they were mandated as stand-alone texts, prominently placed in classrooms where students would encounter them daily.​

The Court's decision closely followed the guidance given by the Supreme Court in Stone v Graham (1980). In Stone v Graham, Kentucky mandated that all public-school classrooms display 16”x20” posters of the Ten Commandments, purchased entirely with private donations. Kentucky argued that the purpose of the displays was solely “secular and nonreligious.” The Court recognized the Ten Commandments as “a sacred text in the Jewish and Christian faiths” and observed that they “do not confine themselves to arguably secular matters, such as honoring one's parents, killing or murder, adultery, stealing, false witness, and covetousness” but also set forth “the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord's name in vain, and observing the Sabbath Day.” The Court ruled that since Kentucky did not “integrate the Ten Commandments into the school curriculum,” posting them on the wall served no educational function. Moreover, the Court ruled that the fact that the displays were donated “did not matter” to the constitutional inquiry, nor did the fact that the displays were not “read aloud” to the students, as “the mere posting” of a religious text “under the auspices of the legislature provides the official support of the State Government that the Establishment Clause prohibits.”

​Even after the decision issued in Stone, future cases have had differing rulings regarding the Ten Commandments. In 2005, the Court in McCreary County v. ACLU of Kentucky affirmed a preliminary injunction that banned two counties from posting the Ten Commandments in their courthouses, citing that the counties had no educational, historical, or otherwise secular reason for posting the Commandments. On the same day, the Court issued an opinion in Van Orden v. Perry, ruling the display of a donated six-foot-tall stone monument of the Ten Commandments that had remained on the grounds of the Texas State Capitol for forty years without challenge was constitutionally permissible.

​Overall, I agree with the District Court's decision in this case that the displaying of the Ten Commandments in schools violated the Establishment Clause as well as the students' Free Exercise Clause. My opinion is based largely on the decision in Stone v Graham that the Ten Commandments are inherently religious and serve no secular purpose if not paired with other school curriculum. By mandating the display of the Commandments, the government is directly promoting certain religions and has no clear secular purpose to do so. On the grounds of the Free Exercise Clause, I also believe that, since it is being introduced to children, the Ten Commandments can serve as a coercive device and impede the Free Exercise of the students. 

https://www.aclu.org/press-releases/court-permanently-blocks-arkansas-law-requiring-ten-commandments-in-every-public-school-classroom-and-library

https://law.justia.com/cases/federal/district-courts/arkansas/arwdce/5:2025cv05127/74528/71/

https://arkansasadvocate.com/wp-content/uploads/2026/03/20260316_Stinson-v-Fayetteville_-Order.pdf

Texas Law Mandates That the Ten Commandments be Posted in Public School Classrooms

A new Texas state law, outlined in Senate Bill 10 (S.B. 10), requires all public schools in the state to display a copy of the Ten Commandments in each classroom. S.B. 10 specifies that the postings must be the Protestant version of the Commandments, must be a minimum of 16x20 inches, and must be clearly visible at any place in the room. Additionally, any Texas public school that does not yet have the posting is permitted to, but not required to, purchase copies for each classroom using public funds. No school is exempt from this policy, so if the school declines to purchase a copy, they must accept any donation offer that would provide the school with a poster that meets the previously described requirements. 

Those in support of this law argue that the “teachings of Christianity more generally are core to U.S. history.” Consequently, they believe that the postings are important to conserve and teach this history. At the same time, Texas lawmakers, namely Lieutenant Governor Dan Patrick, have expressed that bringing the Commandments into the classroom will help students “know about God,” which makes their posting important.

In light of this statute, a group of 16 Texas families filed a lawsuit in the U.S. District Court for the Western District of Texas. The group includes Jewish, Christian, Unitarian Universalist, Hindu, and nonreligious individuals, and they believe that the law would impose the preferred beliefs of the state on their children. In this spirit, named plaintiff, Rabbi Mara Nathan expressed that, “children’s religious beliefs should be instilled by parents and faith communities, not politicians and public schools.” The group also alleges that their parental rights, protected by Wisconsin v. Yoder (1972) and clarified in Mahmoud v. Taylor (2025), are infringed upon by this statute because the policy undermines the religious beliefs that parents want their children to follow. 

With this in mind, in their complaint, the plaintiffs claimed that S.B. 10 violates both the Establishment and Free Exercise Clauses of the First Amendment. The District Court granted a preliminary injunction and held that the law favors Christianity over other religions and that its effect would challenge the free exercise rights of those who hold different beliefs or are non-religious. The district court decision has been appealed to the United States Court of Appeals for the Fifth Circuit and is awaiting a decision. The central issue that the Appeals Court will consider is: Does Texas State Bill 10, which mandates the posting of the Ten Commandments in public primary and secondary school classrooms, violate the Establishment and Free Exercise Clauses of the First Amendment?

In my view, the circuit court should uphold the decision made by the district court and strike down S.B. 10. The facts of the state law are almost identical to that of Stone v. Graham (1980), which is still a binding precedent. In Stone, the Court struck down a Kentucky statute that mandated the Ten Commandments be posted in public schools in the state and applied the Lemon test to reach this decision. Specifically, the Court found that the law did not hold a secular purpose because the Commandments were not integrated into the curriculum and the only effect of the posting would be to coerce students to “read, meditate upon, perhaps to venerate and obey, the Commandments.” While those in support of the law believe that it serves the purpose of educating youth about U.S. history, this purpose does not come to fruition as the law simply mandates the posting of the Commandments and does not integrate them into any lessons. This is similar to the circumstances in Stone, so in my view, the primary effect of the Texas postings is coercion. 

The court will likely also consider the precedent set in Van Orden v. Perry (2005), which permitted a monument of the Ten Commandments to remain on Texas State Capitol grounds; however, as noted in the majority opinion of Van Orden, this location is different from the public school classroom and will result in a much different impact. No individual is required to visit the Texas State Capitol grounds unlike a public school which mandates children to attend. To put it simply, visitors to the Capitol elect to be there for a limited amount of time and observe the monument at their own discretion. This is vastly different from students who are required to be present in public school classrooms for hours each day making the postings much more coercive.

It is also evident that the posting of the Commandments in classrooms is a violation of the Free Exercise Clause. Specifically, the posting of the Commandments imposes a substantial burden on the Free Exercise rights of children in public schools because the influence of seeing the posting will undoubtedly shape their beliefs. This is particularly concerning as many students will be coerced into developing beliefs that conflict with those that their parents want them to hold. In Yoder, the Court expressed the importance of parental rights and explained that in order to enforce laws that violate Free Exercise Rights and do not allow exemptions, the state must have a sufficiently compelling interest. As explained above, the claimed purpose for the legislation surrounds preserving U.S. history, but this is not compelling as they have not been integrated into the curriculum and lawmakers in the state have expressed their delight that the law brings God into public schools. In sum, I believe that Texas S.B. 10 is a clear violation of both the Establishment and Free Exercise Clauses and, thus, should be struck down. 

References:

• https://www.aclu.org/press-releases/texas-families-sue-to-block-law-requiring-ten-commandments-in-every-public-school-classroom 

• https://capitol.texas.gov/tlodocs/89R/billtext/pdf/SB00010I.pdf 

• https://assets.aclu.org/live/uploads/2025/08/Texas-SB-10-Ruling.pdf 

• https://assets.aclu.org/live/uploads/2025/07/Texas-Ten-Commandments-Complaint-FILED.pdf 

• https://www.texastribune.org/2025/05/24/ten-commandments-texas-schools-senate-bill-10/ 

Kariye V. Mayorkas: U.S. Citizens Questioned Upon Re-entry of the United States Based on their Muslim Religious Practice

Upon re-entry to the United States, three Muslim U.S. citizens are questioned about their religious practices. Imam Abdirahman Aden Kariye is a Muslim religious leader from Bloomington, Minnesota. When flying back home from travels abroad, Kariye, amongst others included in the eventual lawsuit, were subject to questions such as "whether they are Muslim, whether they attend a mosque, which mosque they attend, whether they are Sunni or Shi'a, and how often they pray"? (ACLU). They also asked questions about his most recent trip: ‘his “involvement with a charitable organization affiliated with Muslim communities,” ER-86; whether a sports league in which he coaches was “just for Muslim kids,” ER-86–87; the “nature and strength of his religious beliefs and practices,” ER-88; and “whether he had met a particular friend at a mosque” during a recent trip, ER-89.’ This was not an independent event. Officers questioned his faith upwards of five times between 2017 and 2021. This questioning, allegedly, took place in different locations separate from public spaces and with armed officers. However, the plaintiff’s complaint does not challenge the agents themselves; instead, it challenges any policy DHS has that may intentionally target selected Muslims and place said individuals on the terrorism watchlists.

Subsequently, in March of 2022, the ACLU, the ACLU of Minnesota, the ACLU Foundation of Southern California, and Cooley LLP represented three plaintiffs in a lawsuit. The raised legal action was against as listed: Alejandro Mayorkas, who is the U.S. Department of Homeland Security’s secretary; Troy Miller, who is the acting commissioner of U.S. Customs and Border Protection; Patrick J. Lechleitner, who is the acting director of U.S. Immigration and Customs Enforcement; and Katrina W. Berger, who is the executive associate director of Homeland Security Investigations.

The issue remains: Does the religious questioning from Border Patrol Officers, under policy enforced by the DHS, violate the plaintiff’s First Amendment Rights, such as equal protection, Religious Freedom Restoration Act (RFRA), and Free Exercise clause?

The ACLU argues that this questioning by the United States Customs and Border Protection and Homeland Security Investigations violates their "First Amendment Rights of religion and association, as well as the RFRA, and protections against unequal treatment on the basis of religion." The complaint was not a single instance; it occurred multiple times when multiple Muslim Americans returned home from travel abroad. Kariye explains that he “normally wears a muslim prayer cap, but no longer does at the airport to avoid being questioned by border officials”(ACLU). In this case, the ACLU highlights three ways the defendant violates the Constitution. It raises questions about discrimination through the singling out of Muslim travelers simply because they were Muslim and the religious targeting that would infringe upon an individual’s free exercise clause. The religious implications become prominent in the questioning when these individuals are forced to disclose their religious beliefs in a coercive setting. The ACLU argues that the indirect burden of this is that it forces Muslim Americans to suppress their religious affiliation in order to not to suffer consequences or further questioning. For instance, Kariye's choosing not to wear a prayer cap to avoid being questioned, as the ACLU considers, may be an instance of coercion. Lastly, the ACLU argues that there is no compelling state interest. According to the complaint, practicing Islam has no connection to the United States re-entry. The plaintiffs, therefore, frame the lawsuit as a violation of the Free Exercise Clause, Religious Freedom and Restoration Act (RFRA), and equal protection principles under the Fifth Amendment. The plaintiff additionally asks for the “barring the Department of Homeland Security and CBP from questioning them about their faith at ports of entry, and the expungement of records reflecting information that border officers obtained through their unlawful questioning.”

The defendants’ argument is grounded in the fact that there is no government policy targeting Muslims directly. In fact, the DHS and CBP have written policies that actively forbid discrimination on the basis of religion and are upheld by RFRA. Additionally, the defendants argue that in this circumstance, there were secular explanations for the questioning. The Ninth District Court Ruling states that the U.S. Border Patrol stopped the appellants because of watch-list concerns or routine searches that prompted further questioning due to suspicious behavior. Each plaintiff was stopped individually, not collectively. Its individuality aligns with the defendant’s argument that there is no general religiously specific target. Their positions explain that the lawsuit is a wrongful inference of the Border Patrol’s actions. 

In 2023, the suit was brought to the U.S. District Court for the Central District of California, which dismissed the plaintiff’s complaint. Less than a year later, civil-rights groups, including Muslim Advocates, filed an amicus brief seeking reinstatement of the lawsuit before the Ninth Circuit Court of Appeals, which unanimously reopened the case. A final decision on the matter has not been made. 

I find this case somewhat difficult to determine in its constitutionality. In my response to the issue at hand, I do believe that there is a violation of the plaintiff’s First Amendment Rights, such as equal protection, Religious Freedom Restoration Act (RFRA), and the Free Exercise clause, based on the Border Patrol’s specific religious questioning. It makes sense that the suit is not against the agents themselves, but rather the policies in place by the Department of Homeland Security. What becomes complicated is that the DHS has policies in place that actively work against religious discrimination and suppression. So the claims that the policies actively discriminate against Muslim citizens become difficult to determine, as the circumstances were individual. However, the policy in place is not upheld, and the questioning forces religious discretion and compels compliance with majoritarian norms. An evident example is when  Imam Abdirahman Aden Kariye removed his prayer cap to blend in and avoid being questioned. For this reason, I would argue that it unequivocally burdens a particular religion more than others. The compelling state interest in asking direct, Muslim religion specific questions, does not appear compelling enough. Finally, there has to be a less restrictive way to address security issues. In conclusion, my analysis using the Sherbert test would determine this as a violation of the Constitution. The Supreme Court should see the same.

Sources:

https://www.aclu.org/press-releases/muslim-americans-sue-border-and-immigration-officials-over-illegal-religious

https://www.aclu.org/cases/kariye-v-mayorkas#press-releases

https://muslimadvocates.org/court-case/kariye-v-mayorkas/

https://www.aclu.org/news/religious-liberty/customs-and-border-protection-is-singling-out-muslim-travelers-for-invasive-religious-questioning

https://www.aclu.org/cases/kariye-v-mayorkas

https://www.aclu.org/press-releases/appeals-court-reinstates-muslim-americans-lawsuit-challenging-discriminatory-questioning-by-u-s-border-officers

https://www.aclu.org/press-releases/muslim-americans-urge-ninth-circuit-to-hold-government-accountable-for-illegal-religious-questioning-by-border-officers

A Colorado Christian Counselor Fights Against Conversion Bans: Chiles v. Salazar

In 2019, following a large increase in transgender youth in America and the benefits of gender affirming care through therapy coming forward, Colorado enacted a law about Minor Conversion Therapy, citing that mental health professionals are prohibited from undergoing conversion therapy with clients under the age of 18, except for therapists who are "engaged in the practice of religious ministry.” Conversion therapy is defined as mental health techniques designed to change a client’s gender or sexual expression. Colorado, instead, took a gender affirming approach and required counselors to affirm minor clients’ gender identity. However, some mental health professionals, specifically those who are faith-based, took issue with this law, feeling as though it overstepped by controlling how they engage with clients, making the practice of conversion therapy a "disciplinable offense,” as the law may, “ revoke, or suspend the provider’s license; issue a cease-and-desist order; or even impose an administrative fine up to $5,000 per violation.” Despite this, the MCTL had yet to be enforced against anyone at that point. 

Kaley Chiles, a mental health professional in Colorado, runs her own private practice, and included in that is Christian-based counseling, which is done at the request of the client. She started practicing as a counselor in 2014, before the Minor Conversion Therapy law was established. Chiles has worked with adolescents before, specifically on the topic of gender identity and sexual orientation through talk therapy. She also believes that people "flourish" when they live in accordance with God’s design, and sees her counseling as a way to achieve this. However, Colorado issued a ban on “any practice,” including pure speech, that seeks to “change” an individual’s “gender expression,” “behavior,” or “gender identity.” When the law was put into place, Chiles refrained from engaging with minors in ways that she feared could be interpreted as conversion therapy and felt that the law put a strain on her counseling methods. Chiles filed a pre-emptive lawsuit against several of the state of Colorado officials responsible for putting the law into place in 2022. Chiles sued through the United States District Court for the District of Colorado under 42 U.S.C. § 1983, which is a federal statute that allows individuals to sue state or local officials whom they believe are violating their constitutional or federal rights. 

Chiles is represented by the Alliance Defending Freedom, a nonprofit organization specializing in First Amendment rights and religious liberty. Her main argument is that the MCTL infringes on her freedom of speech and free exercise of religion and forces her to choose between the Christian-based talk therapy she offers and beliefs and the professional license that comes into conflict with it. She argued that the law infringed her mission to help minor clients experiencing gender dysphoria “to live a life consistent with their faith.” There is an argument the case poses of whether or not what Chiles is doing counts as conversion therapy, as to her, she is simply using verbal inter-faith techniques to get clients to accept their bodies who consensually seek religious-affirming care. She also argued that the law doesn’t act on a compelling state interest in protecting minors from harm, as there’s a “lack of empirical evidence” of harm from talk therapy. There’s another argument posited that allows minors, with informed parental consent, to undergo treatments such as electroconvulsive therapy and medical marijuana, yet Colorado didn’t enact “state categorical bans.” 

Chiles argued that speculation is not enough to justify such legal scrutiny, and the state’s right to regulate mental health conduct doesn’t give them the power to enact a gag order. However, the district court denied her request for an injunction on the basis that Chiles “failed to show a likelihood of success on the merits,” and that the law regulates conduct rather than speech and any imposing of freedom of speech was incidental. Chiles appealed to the U.S. Court of Appeals for the Tenth Circuit, and the court held that Colorado’s state ban on conversion therapy was of state interest to protect minors from harmful therapeutic practices and maintain the integrity of professional mental health regulation. The court cited National Institute of Family & Life Advocates (NIFLA) v. Becerra, in which two religiously affiliated pro-life entities in California that provide pregnancy related services had to, by Crisis Pregnancy Center Law, provide information about low-cost/free abortion services and other things that they claimed violated their views. They sued, but the court struck down their claim as they argued that some “professional conduct may be regulated by states even if this incidentally involves speech.” The court also stated that the MCTL did not reference a religion or any religious practices, and that conversion therapy simply being associated with religious practices doesn’t mean that religious neutrality is being violated. The case has since been appealed to the Supreme Court. 

I agree with the court’s ruling as conversion therapy isn’t an inherently religious practice. Chiles is a Christian based mental health professional, and there are many ways to engage with clients in an inter-faith way that doesn’t necessarily include sexuality and gender expression. The MTCL also has state interest as the safety of minors is a factor. The court presented evidence of the harm of mental health professionals of using therapeutic techniques such as conversion therapy, which for some groups, involves a long and painful history. The protection of minors who, under parental request, could be subjected to conversion therapy nonconsensually overrules Chiles’ talk therapy being infringed upon, in my opinion.

The Tension Between Civil Rights Enforcement and Religious Privacy: The Case of Penn and the EEOC

   A recent federal court ruling involving the University of Pennsylvania (Penn) and the Equal Employment Opportunity Commission (EEOC) highlights an emerging conflict in constitutional law: the balance between the government’s mandate to investigate religious discrimination and the First Amendment protections afforded to religious identity and association. This case serves as a critical junction for understanding how the state interacts with religious communities within secular academic institutions.

In March 2026, U.S. District Judge Gerald Pappert issued a ruling requiring the University of Pennsylvania to provide the EEOC with records identifying Jewish employees as part of an ongoing federal investigation. The request was initiated following allegations that the university’s workplace is filled with antisemitism and that the administration failed to maintain an environment free from harassment.

The investigation cites several specific antisemitic incidents, including the destruction of property at a Jewish student center, the painting of a swastika on an academic building, and the shouting of obscenities at Jewish community members. The EEOC contended that obtaining contact information for Jewish employees is essential for determining whether the work environment was both objectively and subjectively hostile.

Penn resisted the administrative subpoena, arguing that it has a constitutional bligation to protect the rights of their employees. The university claimed that it does not keep formal lists of employees by religion and expressed concern that being compelled to create lists for the government raises privacy and First Amendment issues. Judge Pappert’s ruling attempted a middle ground: while he upheld the subpoena’s core requirement, he specifically exempted information regarding three independent Jewish organizations, Penn Hillel, MEOR, and Chabad Lubavitch House, noting they are legally and financially separate from the university.

The primary constitutional issues in this case involve the Free Exercise Clause, the Establishment Clause, and the implied First Amendment right to freedom of association.

Under the Free Exercise Clause, the question is whether the government’s request for the identities of religious practitioners creates a chilling effect on the practice of faith. If employees fear that their religious identity is being tracked by a federal agency, they may be less likely to associate with religious organizations on campus. Rabbi Menachem Schmidt of Chabad at Penn noted that the “non-consensual disclosure of personal information” could cripple the mission of religious groups by compromising the privacy of those they serve.

From an Establishment Clause perspective, the case touches upon the doctrine of excessive entanglement. By requiring a secular university to categorize and report its staff based on religious identity, the state risks intruding into the internal administration of religious life. Penn and various advocacy groups argued that government-mandated “lists of Jews” carry historical weight, a comparison the judge found “unfortunate” but which highlights the deep-seated fear of state-sponsored religious tracking.

The constitutional challenge is to determine whether the EEOC’s request is narrowly tailored to a compelling government interest. This debate is deeply rooted in historical legal precedents. A foundational case related to this issue is NAACP v. Alabama (1958). In that instance, the Supreme Court ruled that the state could not compel the NAACP to reveal its membership lists because doing so would violate the members’ right to pursue their collective interests privately and would expose them to potential retaliation. Penn’s argument rests on a similar logic, that the government’s forced outing of religious identity infringes upon the privacy of association.

However, the government has a compelling interest in eradicating discrimination under Title VII of the Civil Rights Act. To satisfy the First Amendment, the state must show that its methods they are using are the least restrictive means of achieving that goal. Judge Pappert concluded that the EEOC’s request met this standard because it was “narrowly tailored” to specific individuals who could have witnessed or experienced harassment.

I argue that Judge Pappert’s decision represents a necessary constitutional compromise. By exempting independent religious bodies like Penn Hillel and Chabad, the autonomy of purely religious institutions. This prevents the state from exerting too much power over a ministry, which would likely violate the Establishment Clause’s prohibition on excessive entanglement.

Furthermore, the ruling preserves individual liberty by clarifying that employees retain the right to refuse participation in the investigation. This ensures that the government’s attempt to remedy a "hostile environment" does not itself become a form of administrative coercion.

This case sets a potential precedent for how federal agencies handle religious identity in civil rights probes across the country. If the government were completely barred from identifying potential victims based on religion, it would be impossible to enforce civil rights laws. Yet, if the government’s power to demand religious lists were absolute, it would signal the end of religious privacy. The Penn ruling suggests that while the state may request such data to protect citizens, it must do so with extreme caution, respecting the boundaries of independent religious associations and individual consent. This balance is essential to maintaining a society where the rule of law protects religious practitioners without violating the sanctity of their private beliefs.

https://abcnews.com/US/university-pennsylvania-give-trump-admin-list-jewish-campus/story?id=131594362 

https://apnews.com/article/eeoc-probe-penn-ac1f54c0d585f7d184383f955822ec68

Does Prior Religious Affiliation Make You ineligible for Public Benefits?

 In Moody Bible Institute of Chicago v. Board of Education of the City of Chicago, the ongoing debate over the role of religion, and Free Exercise thereof, in public education continues. 

The Moody Bible Institute is a not-for-profit, Christian-based higher education institution located in Chicago, Illinois. As put forward in their mission statement, “Moody exists to proclaim the gospel and equip people to be biblically grounded, practically trained, and to engage the world through gospel-centered living.” This mission became a point of concern for the Chicago Board of Education in relation to Moody’s Elementary Education degree program. Through this biblically centered, state-approved program, Moody trains future elementary school teachers by requiring students to spend varied amounts of time participating in classroom observations, practicums, and some form of student teaching. In order to better help students meet these requirements, Moody attempted to join the Chicago Public Schools’ (CPS) student-teaching program but was denied on the grounds that allowing them to use the CPS’s resources would result in an excessive entanglement of church and state. Therefore, Moody was told they must give up their religious hiring policies before they would be able to participate in the CPS’s student-teacher program. With this ultimatum, Moody, along with the help of the Alliance Defending Freedom, filed a lawsuit that would attempt to allow them to maintain their hiring practices and still participate in the government-provided programs. Their primary argument was that, seeing as their hiring policies were in strict accordance with a religious mission, the government could not penalize them without threatening their Free Exercise of Religion. 

                  It is important to note that in the end, this case was settled outside of court before moving to trial, and Moody was permitted to partake in the CPS’s student-teacher program without having to give up their hiring policies. That does not, however, take away from the contribution this case brings to the ongoing debate and deliberation over Supreme Court Free Exercise cases.

This case wrestles with the difficulties of both the Free Exercise and Establishment Clauses of the First Amendment. The Constitutional question that was at hand was whether or not a government entity could deny a generally accessible public service/benefit to a religiously affiliated institution without violating the Free Exercise Clause and Establishment Clause. 

Moody and their student teachers never had the express intention to go out and directly spread the gospel through their student-teacher placements. While Moody’s Elementary Education degree would teach its student-teachers biblically centered doctrines in conjunction with its education requirements, its explicit student-teacher policy required that any student working at a school must comply with the rules, policies, and district regulations of their designated school. In practice, this meant that just like the CPS, Moody was attempting to avoid the excessive entanglement of church and state with their teachers and their placements. Furthermore, because of these internal policies put in place by Moody, the CPS’s discrimination begins to be viewed in a much poorer light.

To provide some legal precedent for this debate, I will briefly explain the Supreme Court cases, Carson v. Makin and Locke v. Davey. In Carson v. Makin, the Supreme Court determined that a religious institution cannot be excluded from partaking in public benefits of the state. If the Moody case had proceeded to trial, any ruling that would deny these benefits would be seen by the Supreme Court as an unconstitutional discrimination against the religious institution. While any state benefits or funds that these institutions could utilize have the potential to indirectly support religious instruction, they cannot allow the state to block the allocation of benefits to these institutions. Conversely, in Locke v. Davey, the court ruled that it is permissible to refuse allocation of benefits to deeply religious activities, the most prominent being direct religious instruction. While this case seemingly provides a base for the opposition to stand on in their argument, it is difficult to know whether or not the argument would stand against Moody’s actions. Seeing as Moody was not sending student-teachers to actively facilitate direct religious instruction in their school placements, because they were coming from an institution where they themselves received direct religious instruction, it is reasonable for the CPS to have concerns about establishing one religion over another. 

            I believe that this case allows for a very poignant conversation and reflection about the way in which we as individuals interpret our Free Exercise. While the case never made it to any high court, let alone the Supreme Court, I still believe that 1) this case was handled in such a way that adds a semi-new layer of legal precedence to Free Exercise cases, and 2) had the most optimal outcome in constitutional terms. In this case, I believe that the result of the settlement to allow Moody to partake in the CPS’s program was the correct and most constitutional course of action. The key issue I recognized as I was researching and contextualizing the case was what the Moody students’ intentions were with these programs if allowed to participate? I believe that the Moody students saw a deficit of teachers in the CPS and decided that it was their right to lend their talents and experiences to ensure that every student had equal access to education. In the end, that could only be provided if the teachers themselves were provided equal opportunities to teach whether they had a religiously affiliated background or not. Moody wasn’t pursuing preferential treatment from the CPS, but rather equal treatment.            

https://adflegal.org/wp-content/uploads/2025/11/moody-bible-institute-v-boe-city-of-chicago-2025-11-04-complaint.pdf

https://dailycitizen.focusonthefamily.com/moody-bible-institute-wins-religious-freedom-case-student-teachers/

https://adflegal.org/article/moody-bible-institute-students-free-to-participate-in-chicago-teaching-program/

https://www.moodybible.org/about/

https://www.oyez.org/cases/2003/02-1315

https://www.oyez.org/cases/2021/20-1088