Yesterday, I was on 1A talking about the country’s 250th birthday and a question the show put plainly. What does America’s relationship with faith look like now? As the conversation went on, I kept noticing how easily certain people get left out of the story we tell about religious freedom. Muslims, progressive believers, anyone whose faith doesn’t match a narrow picture of what religion is supposed to look like. They get treated as if they are not quite part of the American story, and not quite covered by the protections the rest of us take for granted.

I have spent years writing about one version of this. In my work on Islam, I showed how the most effective way to take away a community’s rights is not to attack those rights head on. It is to argue that the thing in question is not really a religion at all. Call Islam a political movement, a foreign legal code, a program of conquest, anything but a faith, and the whole framework of protection quietly disappears. If it is not religion, there is no religious freedom question to answer. The community is left exposed, and the people doing this can say with a straight face that they never touched anyone’s religious liberty.

What surprised me is how many people recognize the move once you name it. After I speak, they come up to tell me they have seen the same thing aimed at their own beliefs.

• A Jewish man tells me he has been informed by non-Jews that his support for Israel is not really part of Judaism, just politics in religious dress.

• A Mormon friend tells me he is used to hearing that his church is not really a religion at all but a cult, or that whatever it is, it does not count as the real thing.

• A woman tells me she has been told that her belief that her faith permits, and sometimes calls for, abortion in certain situations is not religion but ideology she has wrapped in sacred language.

The accusation always has the same shape. Your belief may be sincere, but it is not the kind of thing the law was built to protect.

This same idea showed up, in a more careful form, in the fight over Indiana’s abortion ban. A group of plaintiffs, including a Jewish organization and several women of different faiths, argued that the ban violated their religious freedom under a state law, because their faith directs them to end a pregnancy in circumstances the ban makes a crime. The law professor Josh Blackman, writing with two colleagues, built the case against them. Soon after the Supreme Court overturned Roe v. Wade, he suggested in a post he called tentative thoughts that many non-Orthodox Jews could not really claim a religious obligation about abortion, because their branch of Judaism does not treat religious law as binding in the strict sense.

Blackman later said he did not mean that liberal Jews can hold no sincere beliefs, but the core idea survived. People who do not believe a higher power is commanding them, he argued, people for whom faith is more personal, hopeful, cultural, or traditional, do not fit the kind of case the law was meant to protect. That one line does a great deal of work. It splits faith into real religion, which orders you to do things, and a lesser thing that merely inspires or comforts. And it puts a lot of believers on the wrong side of the line.

Here is where it gets revealing, and where the trap snaps shut. The same logic that says Muslims and progressive believers are not doing real religion does not lead its users to leave those communities alone. It leads them to attack from both directions at once. They do not want religious freedom to cover a Muslim’s prayer or a progressive’s conscience. But when a public school teaches a unit about Islam, or runs a program meant to push back against anti-Muslim prejudice, suddenly those same voices discover a deep concern about the separation of church and state, and they sue to shut it down as an unlawful establishment of religion. So Islam is too political to count as a religion when a Muslim wants protection, and too religious to be allowed in a public school when a Muslim might benefit. The category bends whichever way leaves the community with less. That is the tell. This was never an honest question about what religion is. It is a tool, and the tool always cuts the same people.

I want to be fair to Blackman. He is making a real legal argument about a hard question, and lawyers can disagree in good faith about how the law should treat beliefs that recommend something rather than strictly command it. He is not running the crude project of calling a whole faith a fraud. But the logic he sharpens is the same logic I have chased for years in its uglier forms. It lets an outsider decide what counts as real faith, and it treats the ordinary variety inside any religious tradition as proof that the believer is faking. Critics warned early that this reasoning would not stay parked on abortion. The same groups using it for their own members would find it turning back on them.

The Indiana appeals court took a different path, deferring to the women’s own account of what their faith asked of them. I will not pretend this settles everything. If the believer decides what her faith requires, a court still has to ask how it can test that without becoming the very arbiter I have been warning against. Where the line sits, and who can police it, is a real problem, and one I mean to take up later.

But the difficulty of drawing that line is not a reason to hand the pen to whoever happens to distrust a given faith. The lesson I keep coming back to is that religious freedom cannot be sliced up. Once we let someone outside a faith decide whether a believer’s commitment is the real thing, we have given away the principle that protects all of us.

Leave a comment

On Sunday, organizers of “Rededicate 250” will gather on the National Mall for a day of prayer, worship, and what they describe as a “rededication” of the United States as “One Nation under God.” Timed just ahead of the nation’s 250th birthday, the event features Speaker of the House Mike Johnson, Secretary of War Pete Hegseth, and other senior officials, along with prominent evangelical leaders, two Catholic bishops, and a leading Orthodox rabbi. It is organized through a public-private partnership with the White House.

The event revives a constitutional question Americans have never fully resolved: When does public religious expression become governmental establishment of religion?

For some, the answer is straightforward. The National Mall is a traditional public forum where private groups regularly hold religious and ideological events. Religious Americans have the same right as anyone else to assemble, pray, and celebrate their vision of the nation’s history.

For others, the event feels different, not because it is religious but because of how it is framed. It is presented as a national act of religious recommitment, organized in partnership with the White House, with high-ranking officials appearing under their official titles. At some point, critics ask, does patriotic religiosity become government endorsement?

What the Constitution Actually Requires

The Constitution offers no simple answer, but it does provide a framework.

The First Amendment contains two religion clauses that exist in tension. The Free Exercise Clause protects Americans’ right to practice religion publicly and robustly. The Establishment Clause forbids the government from establishing religion or coercing religious observance. The challenge has always been defining where private expression ends and unconstitutional governmental action begins.

For much of the twentieth century, the Supreme Court approached this boundary with suspicion. School-sponsored prayer was struck down on the ground that schoolchildren are uniquely vulnerable to official religious pressure. By the 1980s, the Court had developed an “endorsement test,” which asked whether government action conveyed an impermissible endorsement of religion to a reasonable observer.

The Court’s modern jurisprudence has moved in a different direction, away from the endorsement test and toward history, tradition, and the absence of coercion.

The key case for events like Rededicate 250 is Town of Greece v. Galloway. Citizens there challenged a town’s practice of opening meetings with explicitly Christian prayers, many invoking Jesus Christ by name. They argued that the practice excluded non-Christians and effectively aligned the town with one faith.

The Supreme Court disagreed. Writing for the Court, Justice Anthony Kennedy emphasized the nation’s long tradition of legislative prayer dating back to the Founding. So long as the government does not coerce participation, discriminate among faiths, or use prayer as a tool of proselytization, ceremonial religious expression generally falls within the nation’s constitutional traditions.

That approach has strengthened in recent years. In Kennedy v. Bremerton School District, the Court rejected the endorsement test and held that a high school football coach’s visible postgame prayers were protected private religious expression. Establishment Clause analysis, the Court said, must be guided by “historical practices and understandings,” not by abstract concerns about perceived endorsement.

Under this framework, Rededicate 250 would likely be upheld. The National Mall is a paradigmatic public forum. Participation is voluntary. No one is compelled to attend, pray, or affirm any creed. The government is not imposing religious observance in the way the Establishment Clause most clearly forbids.

History points in the same direction. As Michael McConnell has shown, the establishments familiar to the Founding generation were defined not by religious rhetoric or public ceremony, but by legal control over religion itself: controlling doctrine and clergy, compelling attendance, providing public financial support, and limiting political participation to members of the established church. Rededicate 250 has none of these features.

What Legal Doctrine Cannot Settle

And yet doctrinal permissibility is not the same as constitutional reassurance.

What makes Rededicate 250 more fraught is the fusion of three elements: explicitly Christian worship, national symbolism, and the participation of high-ranking officials in their official capacities, in an event organized through a partnership with the White House. The event does not merely place religion alongside public life. It intertwines religious commitment with national identity.

That distinction matters, even if it does not map neatly onto modern doctrine. The Establishment Clause was not designed to purge religion from the public square, but to prevent the state from identifying itself too closely with a particular faith. The Framers worried not only about formal establishment, but about what happens when religious and civic identity become tightly linked.

The concern is not coercion in the narrow sense. No one at Rededicate 250 will be punished for refusing to participate, and no legal rights turn on attendance. The question is subtler: When senior officials participate in overtly sectarian national ceremonies, organized through the executive branch, does the government signal that some religious identities are more fully “American” than others?

Reasonable people will answer differently. Some will see these officials as exercising their own religious liberty in public view. Others will see the symbolic prestige of government, and the organizing power of the White House, being lent to a specifically Christian vision of the nation.

The Supreme Court today is likely to side with the former view. But the underlying debate reflects competing visions of American pluralism itself, and doctrine alone cannot resolve it. One vision treats public religious expression as an essential part of national identity. The other worries that when government and religious symbolism merge too closely, citizens outside the dominant faith are pushed to the margins of civic life.

Rededicate 250 places those competing instincts on full display. That is why the event matters, not just as a gathering on the National Mall but as a test of how Americans understand the relationship between faith, citizenship, and political belonging.

To celebrate America’s 250th, I will be speaking at a very different type of event:

Leave a comment

Religious freedom for American Muslims in 2026 has a quiet exception the Constitution never wrote. In Texas, a governor branded a planned Muslim housing and mosque community a “Sharia city” and moved to block its construction. The community already owned the land. Zoning was approved. Every document the First Amendment requires was in order, and the residents were American families, many of them second and third generation, who had built their lives exactly as any religious community in this country is supposed to. The project has become the latest flashpoint in a years-long legal war over Islam’s status as a religion under American law.

This pattern is not an accident. It is the precise legal and rhetorical strategy I have been mapping for over a decade. On WISE Women with Daisy Khan, I sit down with Khan to unpack how a coordinated effort has steadily tried to remove Muslims from the protections the First Amendment guarantees every other religious America, and how American Muslims are organizing to close that gap permanently.

Subscribe now

In November, a Catholic archdiocese asked the Supreme Court to throw out a thirty-six-year-old precedent that has shaped American religious liberty law for an entire generation. Several conservative justices have spent years signaling they wanted to do exactly that. The Court had a clean shot.

It said no.

When the justices agreed on April 20 to hear St. Mary Catholic Parish v. Roy, they took the case but quietly refused to touch the bigger question the parishes had teed up for them. They will decide the case using the very legal framework the parishes had asked them to abandon.

That is a tell. And it is the most interesting thing about the case nobody is talking about.

The case on the surface

St. Mary is, on the surface, the latest installment in a familiar story. Colorado created a universal preschool program in 2022, offering every family up to fifteen hours a week of free preschool, worth about six thousand dollars per child. Any licensed provider could participate. There was one condition. Providers had to agree not to discriminate against families based on sexual orientation or gender identity.

The Catholic parishes of the Archdiocese of Denver applied. They were turned away because they would not agree to enroll children of same-sex parents, a condition the parishes said they could not meet without compromising the religious identity that makes them what they are.

A federal trial court ruled for Colorado. A federal appeals court agreed. And now the Supreme Court will decide whether the state can keep its universal program universal by closing the door to providers like the parishes, or whether keeping that door closed is itself the kind of religious targeting the Constitution forbids.

That is the question on the surface. It is not the most interesting question in the case.

A decade of easy wins, and a decade of dodges

For the past decade, the Court has been quietly building one of the most consequential bodies of religious liberty law in modern memory. Case-by-case, it has ruled that states cannot create public benefit programs and then quietly carve religious institutions out of them. A Missouri church-run school excluded from a playground safety grant. Montana religious schools barred from a scholarship program. Maine faith-based schools refused tuition assistance. The Court ruled for the religious institutions every time.

These rulings came steadily, and they came easily. The competing interests were largely abstract. Concerns about public money flowing to religious education are serious, and the dissenting justices said so at length, but no actual third party was being turned away.

Then there is the other line of cases. The collision cases. The ones where a religious party wants to be excused from a law that exists to protect LGBTQ people from discrimination. The Christian baker who would not make a cake for a same-sex wedding. The Catholic foster care agency that would not place children with same-sex couples. The Christian web designer who would not build wedding sites for same-sex couples.

The Court has decided every one of them on the narrowest ground available.

The baker won because one Colorado official had said something dismissive about religion during the agency proceedings. That was enough to decide the case without saying anything about whether religious business owners can refuse to serve gay weddings.

The foster care agency won because Philadelphia’s nondiscrimination policy gave officials discretion to grant exemptions. If they could grant exemptions for any reason, the Court said, they had to consider granting one for religion. Another technical exit. Another case decided without resolving the underlying conflict.

The web designer won, but on free speech grounds, not religious freedom. The case turned on whether websites are a form of expression the government cannot compel, not on what religious freedom means when it bumps up against equality.

This is the pattern. Every time the Court has had a chance to say plainly what religious freedom requires when nondiscrimination law is on the other side, it has found a way out. A bad official. A loophole in the rules. A speech doctrine. The Court has been telling both sides that the Constitution is on their side, while never having to explain how that can possibly be true.

What the Court refused to touch

Now look at how the Court took up St. Mary.

When you ask the Supreme Court to hear your case, you frame the questions you want them to answer. The lawyers for the parishes framed three questions. Two were technical. The third asked the Court to throw out the 1990 precedent that, since it was decided, has been the rulebook for these collisions.

The Court agreed to hear the first two questions and silently dropped the third.

This is not routine docket management. The 1990 precedent in question, Employment Division v. Smith, has been openly inviting challenge for years. It says, basically, that if a law applies to everyone neutrally, religious people have to follow it like everyone else, even if it burdens their faith. Justice Alito wrote a fifty-page opinion in 2021 arguing the precedent should be overruled. Justices Thomas and Gorsuch agreed. Justice Barrett, in a separate opinion, said the precedent was vulnerable but she was not convinced about what should replace it.

That fourth vote is the whole story. Three justices want to overrule the precedent. A fourth has doubts about it. They need a fifth. And the fifth has not materialized.

So, St. Mary will be decided using the existing rulebook, not a new one. And that matters for two reasons.

The first is practical. If Colorado loses, the Court will have to explain why under the existing rules. The parishes’ argument is that Colorado’s program is not actually neutral. The state lets some preschools prioritize low-income families. It lets others reserve seats for children with disabilities. And according to the program’s own director, the rules allow preschools to serve only children of color, or only LGBTQ families, or only gender-nonconforming children. If you let those exemptions through and refuse a religious one, the parishes argue, you are not being neutral. You are picking favorites.

The second reason is more interesting. By keeping the case inside the existing framework, the Court is preserving its ability to keep doing exactly what it has been doing for a decade. The current rulebook, with its various carve-outs and exceptions, is a tool for case-by-case adjustment. A new rulebook would force the Court to actually say what religious freedom means when nondiscrimination law is on the other side.

The Court is not ready to say that. It has been signaling that it is not ready for ten years. The refusal to touch the bigger question in St. Mary is the latest signal.

Two families, two promises

What you are watching is not a Court that has decided what religious freedom means in the age of LGBTQ equality. You are watching a Court that is using narrow rulings as a substitute for an answer.

That has costs. The biggest is that real people, on both sides, keep being told that the Constitution is on their side, and they keep ordering their lives around that promise, and the Court keeps deferring the moment when one of those promises must give way to the other.

The Sheley family, the Catholic plaintiffs in St. Mary, hoped to use the universal preschool benefit to send their seven children to the parish school they already attend. They could not. While the case was making its way through the courts, one parish preschool that primarily served low-income Catholic families had to close its doors. Down the block, somewhere in Colorado, a same-sex couple read about the program, saw the nondiscrimination rule, and thought: this one is for us. It might not be. It depends on what the Court says next year.

Two families. Two promises. One Constitution.

The answer the Court cannot give us

The justices have kept the case narrow on purpose. Whatever they say about Colorado’s exemptions, they will not be saying, plainly, what religious freedom requires when honoring it costs LGBTQ families something real, and what nondiscrimination requires when enforcing it means closing religious communities out of public life.

There is a part of me that wishes they would just answer it. Pick. Tell us. The deferral is starting to feel like a kind of dishonesty, a way of giving wins to both sides on paper while letting the loss fall, every time, on whichever party drew the unlucky facts.

There is another part of me that is grateful for the deferral. Because the truth is that this conflict, the one between religious traditionalism and LGBTQ equality, is not really a legal conflict. It is a moral and cultural disagreement about what families are, what conscience demands, and how a pluralistic society lives with people whose deepest convictions clash. That kind of question is worked out, in functioning democracies, through legislation and negotiation and accommodation and the slow work of social adjustment. We have done some of that. But increasingly we have outsourced it to nine people in robes who speak in the language of doctrine and precedent.

A ruling in St. Mary that finally answers the underlying question, in either direction, will close some of that space. It will turn what is now a continuing conversation into a fixed legal answer, handed down by a body that one half of the country trusts and the other half does not. Whatever that ruling says, half the country will read it and learn that the Constitution they were taught to believe in does not actually believe in them.

The Court is not going to give us the answer next year. It has already told us so by what it refused to take up. It will give us a narrow ruling on Colorado’s exemption rules, and the larger question will roll forward to the next case, and the case after that, until eventually the off-ramps run out.

Leave a comment

There has always been a line in a free society. The government could punish what you did and sometimes regulate what you said, but it could not reach inside your mind. Your beliefs, your doubts, your private convictions were yours alone. No court order could compel them. No search warrant could retrieve them.

That line is beginning to move, and most people have not noticed.

The debate about artificial intelligence has mostly focused on surveillance and speech, and that alone should worry us. AI makes it cheap to monitor what people say, track who believes what and build detailed profiles of entire communities. You do not need to ban speech to silence it. A system that is always watching is enough.

In such an atmosphere, people start to censor themselves. Research consistently shows this. When people feel watched, they change what they say, often without realizing it.

But the technological advances are not stopping at speech.

Neurotechnology, long the stuff of science fiction, is becoming real. Deep brain stimulation treats Parkinson’s disease. Transcranial magnetic stimulation is FDA-cleared for depression, including in teenagers. Brain-computer interfaces are in human trials, with companies working toward devices that let people control technology with their thoughts.

For patients with paralysis or severe neurological disease, this is life-changing work. None of that should be dismissed.

But technologies built to heal have a long history of spreading beyond medicine. EEG was developed to diagnose epilepsy and is now the engine behind consumer focus headbands. Drugs built for depression and ADHD became productivity tools for healthy people. Deep brain stimulation, developed for Parkinson’s, is now being studied for addiction and memory enhancement.

The pattern is familiar: A technology earns trust by treating real suffering, and that trust then carries it into uses that were never part of the original deal. Consumer neurotechnology is already following that path. And like every other kind of personal data, once brain-related data becomes useful, it becomes valuable.

Once it becomes valuable, it gets collected, shared and used in ways people never agreed to. The incentives largely push in one direction.

Intrusive, expansive data collection is one thing. But now add AI’s ability to find patterns in all of it.

The First Amendment protects your right to speak. It does not guarantee that you will feel safe doing so. In a world where everything you say can be recorded, analyzed and tied back to you, people get more careful.

Speech narrows. Opinions soften. Dissent fades or goes quiet. This is not speculation. It is how people behave when they feel watched.

Neurotechnology opens a new, more intensive front in that problem.

Recent research has shown that aspects of language can be reconstructed from patterns of brain activity. Other work has demonstrated real-time decoding of “inner speech,” with the researchers themselves warning about the potential for misuse.

None of this is at the level of consumer-grade mind reading. The gap between the lab and everyday life is still significant. But the direction is clear enough that it makes sense to ask the legal and constitutional questions now, before the technology gets ahead of the rules meant to govern it.

In my view, the law is not ready.

The danger is not a sudden loss of freedom. It is something slower and harder to reverse. Speech becomes more guarded. Belief becomes more exposed. The private self becomes easier to read.

The Fourth Amendment protects against unreasonable searches, but it was not built for a world where beliefs and intentions can be inferred from biological signals without entering a home or touching a device.

More broadly, courts are still working through what to do with digital data. And neural data is not yet part of that conversation. Even where privacy laws exist, they tend to focus on what data can be collected, not what can be figured out from data already obtained.

That gap matters when the most sensitive information is not what someone said but what a highly intelligent AI system concluded from everything else it can access.

Religious liberty raises a concern that tends to get overlooked in this debate.

Freedom of religion depends on freedom of conscience. The First Amendment protects not just what people say publicly but also what they believe, question and work through in private.

For many traditions, that inner life is not a side note to religious practice. It is the center of it. Prayer, intention, doubt — these happen inside a person, not on a public platform.

What happens to that precious liberty when the inner life no longer feels fully private?

The threat is not necessarily someone forcing you to reveal your beliefs. It is something quieter and harder to guard against: the possibility that what you believe becomes visible to employers, governments, insurers or companies simply as a side effect of tools you use every day. No one has to ask.

The system figures it out. It’s like a much bigger equivalent of having a private conversation at home, then finding an advertisement showing up on your devices the next day targeting that very topic.

That kind of exposure creates a pressure that is hard to see and hard to fight, precisely because there is no single moment where something obviously goes wrong.

Think about what that looks like in practice. A Muslim employee uses a company wellness app that tracks heart rate and stress during the workday. She steps away to pray. The app logs a recurring pattern: stillness, slowed breathing and reduced screen activity five times a day. She never told anyone her religion. She never had to. The pattern did it for her. Whether her employer ever acts on that information is almost beside the point. The exposure happened without her knowledge and without her consent.

Or consider this: A homeschooling parent relies on an online curriculum that logs lesson selections, reading lists and how long students spend on different topics. Over time, those choices form a clear pattern: certain periods of history emphasized, others passed over, particular authors returning again and again.

From that, a profile emerges: not just how the child learns, but what the household likely believes. No survey was filled out. No declaration was made. The conclusions come from accumulation, not disclosure. And once they exist, they can travel beyond the platform, beyond the family, into systems the parent never intended to inform.

That is the kind of quiet exposure the law was never designed to prevent but may now have to. Some governments are starting to respond. Colorado now treats neural data as sensitive information with stronger legal protections. Chile has recognized mental privacyas a constitutional right. UNESCO adopted a global framework on neurotechnology ethics in 2023.

These are early steps, but they are real ones. In the United States, the conversation has barely begun.

The danger is not a sudden loss of freedom. It is something slower and harder to reverse. Speech becomes more guarded. Belief becomes more exposed. The private self becomes easier to read.

The law will still say you are free. But freedom that exists only on paper, in a world where your own thoughts feel like someone else’s data, is a much thinner thing than what this country was built on.

Free societies have always had to draw a line between what can be known and what must stay personal. For most of our history, that line has been the human mind.

It is worth deciding now whether we mean to keep it there.

This post was previously published on Deseret News.

Leave a comment

In recent weeks, senior officials have urged Americans to pray for military victory “on bended knee” and to do so “in the name of Jesus Christ,” tying the nation’s wars to a sense of divine purpose.

At the same time, service members have filed 110 complaints about their commanders describing war itself as part of “God’s divine plan” and invoking biblical end-times language as they prepare troops for combat.

Separately, inside the Pentagon, leaders have also organized recurring Christian prayer services, held in government spaces and promoted within federal agencies. A watchdog group has now gone to court to find out how those events were planned, who approved them, and whether taxpayer resources were used to support them.

What exactly is happening here?

Is this simply religion in public life, something the Constitution clearly allows? Or is it something else, something closer to the government itself taking a religious stance?

The Constitution does not push faith out of public life. It protects it. Americans can pray. Leaders can speak about their beliefs. The military even employs chaplains so service members of many faiths can worship.

But there is a line. The government cannot use its authority in ways that effectively favor one faith or pressure people to participate in particular religious practices — especially in settings where hierarchy and context can make participation feel expected rather than freely chosen. General appeals to prayer are one thing; directing or embedding religious activity within official duties is another.

Where that line sits, however, has become harder to locate.

The Supreme Court has spent decades trying to define it, and its answers have shifted. For a long time, courts asked whether a reasonable observer would see a specific government action as an endorsement of religion.

But over the past decade, the Court has moved away from that framework. In Town of Greece v. Galloway (2014), it upheld explicitly Christian legislative prayer based on historical tradition. In American Legion v. American Humanist Association (2019), it criticized the old tests courts had relied on for decades.

Most recently, in 2022, in Kennedy v. Bremerton School District, the Court went further. It ruled in favor of a high school football coach who prayed on the field after games, emphasizing his individual right to religious expression and directing courts to look instead to history and tradition.

Together, these decisions make clear that government employees do not lose their right to pray simply because they are acting in a public role — and they narrow the situations in which courts will treat religious expression as unconstitutional, even when it happens in public view.

That matters here. When senior officials call publicly for prayer in explicitly Christian terms, the line between personal expression and official speech becomes contested. Are they speaking as individuals, or as the government itself? After Bremerton, courts are less quick to answer that question in favor of an Establishment Clause violation.

So, what can courts still look at?

They can ask what the government itself is organizing. Making space for religion is allowed. That is why chaplains exist. But organizing recurring Christian prayer services inside federal agencies raises a different question: Is the government making room for religion, or is it building a platform for it?

That is where the lawsuit now pending becomes important. The group behind it is not just objecting in the abstract. It is asking for the details: Who planned these events? How much staff time went into them? Were outside speakers invited to promote a specific message? Were complaints raised by employees who felt uncomfortable or excluded?

Those details matter because an Establishment Clause case today is not simply about whether someone prayed. It is about whether the government itself organized, funded, or directed religious activity in ways that cross from accommodation into promotion.

Even so, one principle has survived all of this. Coercion matters.

In Lee v. Weisman, the Court held that government-sponsored prayer violates the Constitution when the setting makes it difficult to opt out, even when no explicit requirement to participate is issued. That holding has not been overruled.

The coercion reasoning has particular force in the military. In an ordinary workplace, you can skip an event. You can stay silent. You can opt out without much thought.

Can you do that in the military?

When a superior speaks, it carries weight. When a superior frames a mission in religious terms, it can sound like strong guidance. When a superior invites participation in a prayer, even a voluntary one, it can feel like clear expectation.

When service members report being told that a war is part of God’s plan, what does that mean for the soldier who does not share that belief? What does it mean for the one who does, but understands faith differently? What does it mean for the one who simply wants to do the job without taking a religious position at all?

Are they free to stand apart? Or are they being asked, quietly but unmistakably, to fall in line?

For a legal challenge to succeed, those questions would have to be answered with evidence. A court would look for signs that officials were acting in institutional rather than purely personal capacities. It would look for patterns, not isolated moments. It would look for pressure, even if no one ever said the word “mandatory.” And under the current Court’s framework, it would also have to grapple with whether the challenged practice has historical precedent — a question that tends to favor the government.

The law here is genuinely uncertain. Recent decisions have moved the Court away from aggressive Establishment Clause enforcement and toward stronger protection for religious expression by government actors.

Yet that shift does not make the underlying concerns disappear. It makes them harder to litigate.

So, what is taking place, exactly?

Is it faith accompanying power? Or is it power speaking in the language of faith?

And for the soldiers standing in formation, listening to a prayer before a mission briefing, the question is even more immediate: When the voice comes over the loudspeaker, is it a superior speaking as an individual — or the institution speaking through him?

In that moment, do you really have a choice?

This piece was previously published at Deseret News.

Leave a comment

The Supreme Court’s decision this week in Chiles v. Salazar is about far more than conversion therapy. It redraws the line between what the government can regulate and what it must leave alone, and it does so in a way that will reshape how law treats speech in medicine, counseling and other professional settings.

The case also reflects a broader shift in how these disputes reach the court. For years, conflicts involving sexuality and conscience were framed as questions of religious freedom. That is no longer how they arrive. Chiles came as a free speech case.

But even then, the more important development is not simply how the case was argued; it is how the court chose to understand what was being regulated.

Kaley Chiles, a licensed counselor in Colorado, challenged a state law that prohibits therapists from engaging in “conversion therapy” with minors, reflected in professional efforts to change a client’s sexual orientation or gender identity.

The law drew a line. It prohibited counseling that seeks to change sexual orientation, while allowing counseling that affirms identity and supports exploration. Colorado defended that line as a matter of public health, pointing to a broad medical consensus that conversion therapy is ineffective and associated with depression, anxiety and increased risk of suicide.

Justice Ketanji Brown Jackson’s dissent takes that evidence seriously and treats it as the heart of the case. In her view, Colorado was doing what states have long done. It was regulating a form of treatment that the medical profession has concluded is harmful, just as states regulate drugs, procedures and standards of care more generally. The fact that this particular treatment is delivered through words, she argued, should not change the analysis.

Her core claim is a careful doctrinal one: There is a meaningful difference between a state that targets speech because of the ideas it expresses and a state that restricts speech only incidentally because it is regulating a medical treatment. Prior Supreme Court decisions, she argued, recognized exactly that distinction and called for less demanding constitutional scrutiny when a state is doing the latter — that is, when the speech restriction is a byproduct of regulating care, not an attempt to silence a point of view.

Eight other justices saw the case differently. And that difference determined everything that followed.

The Supreme Court did not deny that Colorado had evidence or that it was acting with protective aims. It said those should not be relevant considerations once the law was understood as regulating speech.

Chiles provides only talk therapy. She does not prescribe medication or perform procedures. She speaks. From that premise, the court drew a categorical conclusion: If what she does is speech, then what the state is effectively regulating is speech, whatever label the state uses.

That move is not just descriptive. It is decisive.

Once the case is placed in the domain of speech, the governing rules change. The court is then able to ask not whether Colorado was regulating a harmful practice but whether it was taking sides in a debate.

And on that question, the answer was straightforward: The law permits a therapist to affirm a minor’s identity, but forbids a therapist from encouraging change. It allows one perspective and prohibits the other. The court treated that as textbook viewpoint discrimination, the most disfavored form of speech regulation under the First Amendment.

At that point, the case was effectively over. Once a law is classified as viewpoint discriminatory, the government’s evidence, however substantial, carries far less weight. The question is no longer whether the state has good reasons; it is whether the state has chosen a side.

Colorado argued that it was regulating professional conduct. The lower courts agreed. The Supreme Court majority rejected that framing outright. From this view, calling something a treatment or a therapeutic method does not change what it is.

The First Amendment, the court said, cannot be avoided by labeling speech as conduct. Nor does the fact that the speaker is a licensed professional diminish constitutional protection. The court reiterated that there is no separate category of “professional speech” that receives lesser protection.

Thus, at the same time litigants have increasingly brought these cases as speech claims rather than religious ones, the court has become more willing to accept that framing and to go further by treating professional interactions themselves as speech. The first shift is strategic. The second is doctrinal. Together, they are reshaping the law.

The immediate case is about conversion therapy. The broader shift is about something larger.

The consequences are significant. A neutral and generally applicable law like Colorado’s would likely survive a religious freedom challenge under existing doctrine. Treated as a speech restriction, the same law triggers the most demanding form of constitutional review. And when that review is driven by a finding of viewpoint discrimination, the outcome is rarely in doubt.

The implications extend well beyond this case. Much of modern health care is delivered through conversation. Addiction counseling, eating disorder treatment, suicide prevention and end-of-life care all depend on words rather than instruments or prescriptions. States have long regulated these practices based on evidence about what helps and what harms.

After Chiles, those regulations rest on less certain ground. Any rule that permits some therapeutic messages while forbidding others risks being characterized as taking sides. And laws that take sides face a constitutional standard that most cannot satisfy.

The majority acknowledges some limits but does not define them. Justice Elena Kagan, joined by Justice Sonia Sotomayor, points to a possible path forward. A law that restricts clinical speech without favoring one viewpoint over another might survive constitutional challenge. But that distinction is easier to state than to apply. In a therapeutic setting where treatment often consists of conversation directed toward particular ends, separating content from viewpoint is not straightforward.

Jackson warns of the consequences. Rules requiring providers to act in patients’ best interests, to avoid cruel care and to meet basic standards of competence all shape what professionals say, and all could now face challenge. The majority does not provide a clear answer.

The First Amendment now reaches into spaces it has not occupied before.

The immediate case is about conversion therapy. The broader shift is about something larger. The debate is no longer being fought on the terrain of religion or public health. It is being fought on the terrain of speech. And on that terrain, the balance of power shifts.

Chiles follows a line of recent decisions in which the court has used the First Amendment to reach outcomes that might once have required a harder constitutional fight. This includes a 2023 case in which the court resolved a business owner’s religious objection to serving gay customers entirely through speech doctrine rather than religious freedom principles.

What is new in Chiles is that this logic has now moved inside the clinic. It applies not to a business owner speaking to the public but to a licensed professional speaking to a patient in a therapeutic relationship. That extension matters.

States that seek to regulate what licensed professionals say to patients will now have to navigate a constitutional landscape that has shifted beneath them. Laws that favor one therapeutic message over another will face serious obstacles. Kagan’s concurrence suggests a narrower path may exist, but no one yet knows how far it runs or whether legislatures can successfully walk it.

What is clear is that the First Amendment now reaches into spaces it has not occupied before. The cost of that expansion will be measured, case by case, in the states’ diminished capacity to directly regulate the care of their citizens.

This piece was previously published at Deseret News.

Leave a comment

In Texas this month, a proposed Muslim housing development near Dallas has been cast as evidence of the “Islamization of Texas,” described not as a real estate project, but as a civilizational threat.

At a Fort Worth church just days after the primaries, panelists debated banning Islam, deporting Muslims, or reclassifying their faith as a political ideology. In Austin, after a deadly downtown shooting, Muslim families quietly increased mosque security and wondered whether their children would be targeted, not because of anything they had done, but because of what they believed.

I have seen this pattern before. In 2019, I wrote “When Islam Is Not a Religion,” warning that the effort to define Islam out of constitutional protection was already underway. What we are witnessing now is not new.

The argument is deceptively simple. Islam, a surprising number of critics say, is not truly a religion. It is a political system, a totalitarian ideology wearing a religious veneer. And if it is merely political, then it does not qualify for protection under the First Amendment.

I documented these kinds of assertions in a 2018 New York Times article. Since then, the argument has not faded; it has grown more explicit and more mainstream. In 2025, Sen. Tommy Tuberville from Alabama wrote in response to a violent incident abroad, “Islam is not a religion. It’s a cult.” That same year, a local Florida official, Robert Langevin, argued on social media that Islam is “as much a political ideology as it is a practice of faith,” and claimed Muslims were advancing that ideology in Western societies.

This language in the U.S. echoes that of Dutch politician Geert Wilders, who for years has described Islam not as a religion but as a totalitarian political ideology comparable to fascism or communism.

The pattern is familiar: redefine a faith as an ideology, recast believers as political actors, and constitutional protections begin to look optional rather than fundamental.

This claim does not live on the fringe. It has appeared in courtrooms, legislative proposals, and official statements by elected leaders. Lawmakers have introduced anti-Sharia bills premised on the idea that Islamic law poses a unique threat to American values, even though existing law already prevents the abuses they claimed to fear.

Lawyers have also argued that mosques were not entitled to the same protections as churches because Islam was inherently political. The debate was never really about foreign law. It was about who counts.

The controversy surrounding the EPIC community near Dallas fits squarely within this framework. A group of Muslim Texans sought to build a residential developmentanchored by a mosque and community amenities.

Critics responded with warnings of demographic takeover and creeping Sharia. Their concern was not traffic patterns or zoning density, but visibility. Muslims choosing to live together in intentional community became, in this telling, proof of an imagined transformation of Texas itself.

As of March 2026, the development’s legal status remains locked in a complex gridlock of local permit delays and state-level litigation. Additionally, in February 2026, the U.S. Department of Housing and Urban Development opened a federal civil rights investigation at the urging of Texas Gov. Greg Abbott who has called residential development “discriminatory” and invoked fears of “Sharia” while insisting that religion was being used as a “form of segregation.”

The phrase “Islamization of Texas” does powerful rhetorical work. It reframes Muslim religious life not as an exercise of faith, but as an ideological campaign. This casts ordinary civic participation as stealth conquest. Once that frame takes hold, extraordinary legal measures begin to sound reasonable.

Consider what follows if it does. Could the state deny mosque construction outright? Could Muslim charities be regulated as political organizations rather than houses of worship? Could Muslim religious arbitration be singled out for restriction while Jewish and Christian arbitration remains respected? Could Muslim inmates be denied religious accommodations because their faith has been labeled an ideology?

These are not abstract possibilities. They could be the practical consequences of redefining religion.

Religious liberty in America rests on a foundational principle: Government does not sit as theologian. It does not decide which doctrines are sufficiently spiritual or sufficiently American. The First Amendment protects religious exercise because we do not have to prove that our beliefs are popular or comfortable in order to deserve constitutional protection.

To declare that Islam is not a religion is to make Muslim rights conditional on political approval.

History should make us wary of this move. Catholics were once portrayed as loyal to Rome rather than the Republic. Jews were depicted as operating hidden networks of influence. Latter-day Saints were treated as an inherently political movement undeserving of constitutional standing.

In each case, the pattern was the same. Redefine the unfamiliar faith as political, then deny it full protection. The faces changed; the logic did not.

Texas prides itself on limited government and robust religious liberty, and many of the same leaders now warning about Islamization champion strong protections for Christian religious exercise. That instinct for protection is sound.

But it cannot be principled if it is selective. Evangelical Christianity shapes views on marriage, abortion, and public policy. Catholic social teaching animates debates about poverty and immigration. Orthodox Judaism structures daily life in ways that touch commerce and community. Nearly every faith tradition carries moral commitments into public life, and none of that strips it of its religious character.

The test of religious freedom is not how we treat the familiar. It is how we treat the faith that unsettles us.

Muslim Texans describe a lived reality in their own families and communities that looks nothing like an ideological campaign. They celebrate Ramadan under American and Texas flags, run businesses, serve in public office, and raise families in the same suburbs now accused of harboring civilizational threats. Their lives resemble ordinary American pluralism. The question is whether American pluralism will extend to them.

When I wrote “When Islam Is Not a Religion,” I argued that the struggle over Muslim religious liberty was a test of the coherence of religious freedom itself. That test is before Texas again. A government that labels a faith political in order to place it outside constitutional protection has already abandoned neutrality. And a religious liberty that applies only to the comfortable is no liberty at all.

This piece was previously published at Deseret News.

Subscribe now

Imagine a case that reaches the Supreme Court involving a student disciplined by his school. Everyone agrees the student spoke. The disagreement is about something subtler. Was he punished for his words, or for the way he behaved while speaking. That single distinction determines whether free speech protections apply at all.

The justices do not debate the value of free expression in the abstract. They focus on context. Where was the student standing. Who could hear him. What else was happening at the time. The outcome turns on how to describe what occurred.

This hypothetical captures something essential about constitutional law. Rights do not activate on their own. They are triggered by facts. Before the Constitution can protect speech, religion, or protest, someone has to decide what kind of event actually took place.

We often miss this because we talk about rights as if they are automatic. Either you have them or you do not. Either the Constitution applies or it does not. In practice, constitutional protection depends on whether facts are understood in a way that lines up with the boundaries the law has drawn. Facts are the gateway.

Speech is protected only if it is recognized as speech rather than disruption. Religious practice is protected only if it is understood as religious practice rather than ordinary behavior. Protest is protected only if it is distinguished from threat or violence. The Constitution does not answer these questions for us. It waits for them to be answered.

For much of American history, that work happened slowly and deliberately. Courts gathered evidence, listened to competing accounts, and explained why one version of events mattered more than another. The process was imperfect, but it was designed to stabilize facts long enough for law to do its work.

The religion context makes this especially clear. Whether religious freedom applies often turns on how a burden is described. A government rule can be seen as a minor inconvenience or as a serious pressure that forces someone to choose between faith and participation in public life. Exposure to ideas can be framed as harmless or as deeply disruptive to a way of life. The legal standards may remain the same, but constitutional protection rises or falls with how the facts are understood.

The same is true for speech. A demonstration can be described as peaceful expression or as dangerous obstruction. Filming officials can be understood as accountability or as interference. The Constitution draws lines between these categories, but it does not tell us which side of the line a particular event falls on. That judgment comes first.

This is where this piece by my friend John Inazu is especially helpful. He explains that many of our disagreements collapse three different kinds of claims into one. We confuse claims about what happened with claims about what the law says, and we confuse both with claims about what we think is right. When those categories blur, factual disputes turn into moral standoffs, legal questions flatten into slogans, and people stop trusting the processes meant to resolve disagreement.

Inazu’s insight is that these distinctions matter. A factual claim asks what occurred. A legal claim asks how the law classifies that occurrence. A moral claim asks how we should evaluate it. Each plays a different role, and each requires a different kind of reasoning. Treating them as interchangeable makes it almost impossible to reason together.

This essay begins one step earlier.

Before we can separate facts from law, or law from morality, facts themselves must be understood in a way that fits the structure of constitutional law. If the law protects speech but not threats, everything depends on how the event is described. If the law protects religious exercise but not every personal preference, everything depends on how the practice is characterized.

When facts are unstable, constitutional law cannot do its job. Rights do not disappear because the Constitution has changed. They fail to attach because the event never makes it through the gateway.

Outside the courtroom, this problem becomes even more visible. In public life, events are interpreted almost instantly. Short video clips circulate before investigations are complete. Narratives form quickly and confidently. Moral conclusions often arrive before factual ones have settled.

Here too, facts determine whether rights are thought to exist at all. A protest is either dissent or danger. Filming authorities is either accountability or interference. A religious objection is either conscience or discrimination. These judgments come first, and once they harden, it becomes difficult even to ask what the Constitution requires.

The killing of Renée Good revealed this dynamic with painful clarity. From the outset, there was no shared understanding of what had happened. Competing accounts emerged immediately, each carrying not just a description of events but a conclusion about their meaning. Without agreement on the facts, the question of constitutional limits never fully came into view.

Then came the killing of Alex Pretti.

The Pretti shooting feels different not because it is simple, but because the violence resists easy reframing. A man filming federal agents, later pinned to the ground, shot multiple times. Whether filming counts as protected activity or as interference is not a moral question. It is a factual one that determines whether constitutional limits apply at all. When that judgment is made too quickly or too loosely, the space for rights collapses.

In both cases, the Constitution did not vanish. What faltered was the gateway. Before courts could meaningfully weigh in, before doctrine could do its work, the most consequential factual judgments had already been made. Once an encounter is understood as a threat, the law’s protective categories recede. Once it is understood as interference, constitutional safeguards narrow. The boundaries remain, but the event never reaches them in protected form.

This is why the question of whether the Constitution still matters feels so urgent. The text remains. The doctrines remain. But constitutional law can matter only if facts are understood in a way that aligns with the lines the law has drawn.

The Constitution does not enforce itself. It relies on shared habits of care in describing events. It relies on our willingness to pause long enough to ask what happened before deciding what it means or how we feel about it. When that step is skipped, the Constitution does not disappear. It simply never turns on.

Leave a comment

Renee Good did not set out to test the outer limits of free speech. She was a poet, a mother, and a school board member who, on a cold January morning in Minneapolis, encountered something many Americans now recognize immediately: unmarked federal vehicles, neighbors blowing whistles, phones raised to record, and the sudden arrival of ICE in a residential neighborhood.

Minutes later, Good was dead. An ICE agent fired three shots into her car during a confrontation on a public street. Within days, federal officials labeled the incident “domestic terrorism,” defended the shooting, and deployed tear gas and pepper spray against protesters and students who returned to the streets, including near a public high school. Classes were canceled. Prosecutors resigned. And a chilling message settled over communities watching closely: protest near immigration enforcement had become dangerous.

Public discussion since has focused almost entirely on use of force—whether the agent reasonably feared for his life, whether a car can constitute a deadly weapon, whether the shooting was justified under the Fourth Amendment. Those questions matter. But they obscure a deeper and largely unexplored constitutional issue:

What happens to the First Amendment when protest collides with immigration enforcement?

For decades, the Supreme Court has treated verbal opposition to law enforcement as core protected speech. In City of Houston v. Hill, the Court put it plainly:

“The Constitution does not allow such speech to be made a crime. The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

That principle is not rhetorical flourish. It reflects a judgment about democratic identity. Free societies tolerate dissent directed at the state itself, even when that dissent is angry, disruptive, or deeply uncomfortable.

Immigration protests test that commitment because they unfold in volatile settings. They take place on streets and sidewalks during active enforcement, where civilians watch and record as the government exercises one of its most coercive powers. The speech is confrontational by design. The discomfort is the point.

Shouting at agents, criticizing their actions, demanding that they leave a neighborhood—none of this loses constitutional protection simply because officers find it hostile or distracting. Nor does the protection evaporate because the subject is immigration rather than some less politically charged issue.

The Line Between Order and Suppression

The First Amendment does not protect everything that happens at a protest. The law draws a line between speech and conduct, and that line becomes critical when emotions run high. Chanting, filming, and verbal confrontation are protected. Physical obstruction that creates genuine safety risks may be regulated, even in public forums.

The hard question is not whether limits exist. It is how they are enforced.

In the Good incident, her car was positioned in the street, partially obstructing traffic. That fact matters. But regulation is not escalation. The Constitution does not treat every act of civil disobedience as a lethal threat. Video shows other vehicles maneuvering around her car, verbal exchanges that were plainly protected, and an agent approaching while recording on his phone. Seconds later, he fired.

Even if one accepts that obstruction can be regulated, the use of deadly force during expressive activity carries constitutional consequences beyond the immediate encounter. When enforcement escalates in protest settings, the chilling effect extends far beyond the individual involved. It signals to observers that participation itself—watching, filming, speaking—may carry extreme risk.

That chilling effect deepened in the days that followed. Federal agents deployed chemical agents to disperse crowds, treating entire gatherings as threats rather than distinguishing between unlawful conduct and protected dissent. The Supreme Court has repeatedly warned against this kind of collective suppression. Unlawful acts by some do not erase the First Amendment rights of others.

There is also the unresolved problem of retaliation. When protest activity aimed at immigration enforcement draws harsher responses than comparable conduct elsewhere, constitutional suspicion is unavoidable. The First Amendment forbids the state from using its enforcement power to punish disfavored viewpoints. Labeling civilian monitoring and protest as “domestic terrorism” risks collapsing that distinction altogether.

None of this denies the real dangers immigration officers face. Vehicles can be weapons. Officers make split-second decisions under stress. The Constitution does not require agents to absorb genuine threats without response. But it does require restraint, especially when enforcement unfolds amid constitutionally protected dissent. Authority does not include a right to silence critics.

What makes Renee Good’s death so unsettling is not only the loss of life, but the precedent it threatens to set. If protest near immigration enforcement is treated as inherently dangerous, then the First Amendment shrinks at precisely the moment when its protections are most needed.

The Constitution does not guarantee order or efficiency. It guarantees space for speech, for protest, for communities to bear witness when the state exercises its most formidable powers. Immigration enforcement may require authority. It does not require a protest-free zone.

The unresolved question after Minneapolis is not only whether one shooting was justified. It is whether dissent remains a protected constitutional act, or whether it is only tolerated when it is quiet, distant, and safely removed from the officials it challenges.

That question has received far less attention than it deserves. And it may ultimately matter more than any single verdict.

Leave a comment

Colorado’s ban on conversion therapy might seem, at first glance, like a classic religious liberty case. For decades, challenges to similar laws were brought by counselors or parents who claimed a religious obligation to guide a child away from same-sex attraction or toward a traditional understanding of gender. That religious framing shaped both the litigation strategy and the public imagination. But Chiles v. Salazar is different. The challenge now arrives at the Supreme Court not as a religious liberty claim, but as a free speech claim, and that shift is precisely what makes the case so significant.

Kaley Chiles is a licensed counselor who wants to talk with minors about what she calls unwanted same-sex attraction or gender dysphoria. Colorado’s statute prohibits licensed therapists from engaging in any practice “that attempts or purports to change a client’s sexual orientation or gender identity,” including efforts to change “behavior, gender expression, or attraction.” For the state, the law protects minors from harmful, discredited practices. For Chiles, it “prophylactically bans voluntary conversations” and censors a viewpoint the government disfavors.

The core of Chiles’s argument is that therapy is, at bottom, talk. If the government cannot compel professionals to say certain things (as held in NIFLA v. Becerra (2018)) it also cannot forbid them from expressing certain ideas, even ideas the medical community overwhelmingly condemns. In this framing, conversion therapy is not a clinical intervention but a message the state has decided is unacceptable.

This argument reflects a broader trend in the Court’s recent cases. In 303 Creative v. Elenis, a dispute rooted in religious motivation was resolved entirely through compelled speech doctrine. Free Exercise receded from the analysis. Expression did all the work.

Chiles follows the same pattern. Under Employment Division v. Smith, Colorado’s neutral ban would almost certainly withstand a Free Exercise challenge. But a free speech claim triggers strict scrutiny, a standard far more skeptical of government motives and far less attentive to third-party harms. When professional counseling is reframed as pure expression, the state’s ability to regulate practices affecting minors becomes constitutionally fragile.

This shift has consequences that extend well beyond conversion therapy. Suicidality counseling, eating disorder treatment, addiction treatment, gender affirming care, grief counseling, and end-of-life support are all delivered primarily through spoken conversation. If talk-based therapy is treated as protected speech rather than professional conduct, substantial areas of public health regulation become more legally vulnerable.

The oral argument underscored this tension, not as the center of the case, but as a lens into how the Court currently understands the uneasy boundary between professional regulation and expression.

Several justices pressed Colorado on whether it had ever enforced the law. The state pointed to six years of non-enforcement and told the Court it would not apply the statute to the kind of “consensual talk therapy” Chiles says she offers. Justice Sotomayor stated the issue directly:

“We have basically six years of no enforcement ... and we have the entity charged with administering the law saying we’re not going to apply it to your kind of therapy.”

Chiles’s attorney argued that Colorado had not truly disavowed enforcement. But the exchange revealed something deeper: Chiles insists the statute plainly covers what she does, while Colorado insists it does not. The result is an unusual dynamic in which the state aims to defeat the lawsuit by narrowing the very statute the legislature passed to protect minors.

That difficulty is not incidental. It reflects the precarious position states face when trying to regulate counseling practices under the Court’s current First Amendment approach. The more Colorado characterizes conversion therapy as professional conduct, the easier it is to defend the statute. But the more therapy is framed as speech, the harder it becomes to justify any limits on its content.

Meanwhile, the medical consensus remains unequivocal. Every major national health organization — the APA, AMA, AAP, and American Psychiatric Association — condemns conversion therapy for minors as ineffective and harmful. The APA’s 2009 task force found heightened risks of depression, suicidality, and internalized shame. Yet contemporary First Amendment doctrine gives diminishing weight to professional consensus. Courts increasingly view scientific disagreement not as grounds for regulation but as evidence that the state is policing ideas.

This is why the shift from religion to speech matters so profoundly. Free Exercise doctrine, despite its disputes, at least acknowledged the reality of third-party harms. Free speech doctrine does not. Once a claim is recast as viewpoint discrimination, the effects on minors become secondary.

This is the larger story that Chiles v. Salazar brings into focus. The case is not simply about LGBTQ youth or parental authority. It is a bellwether for how the Court may redraw the line between professional regulation and expressive freedom.

Leave a comment

On January 6, 2021, thousands of people gathered near the White House to protest the certification of the presidential election. The rally began as political expression: fiery, defiant, but within the long American tradition of dissent. Then it became something else. As the crowd marched to the Capitol, broke through barriers, and stormed the chambers of Congress, the question changed from politics to law: when does speech stop being protected by the First Amendment and become part of the crime itself?

The Legal Tests

The First Amendment protects a wide range of political speech, even speech that is angry, false, or deeply offensive. But, over the years, the Supreme Court has developed a few key limits:

• Incitement: Speech that is intended and likely to produce imminent lawless action. This standard comes from Brandenburg v. Ohio (1969).

• True threats: Statements that seriously express an intent to commit violence against a specific person or group.

• Facilitation: Speech that doesn’t just urge others to act but actually helps them do it by giving instructions, plans, or operational details.

If speech doesn’t fit into one of these narrow exceptions, it remains protected, even when it is harsh or irresponsible. The question for January 6 is which, if any, of these exceptions applies.

Applying the Standards

The rally speech that morning contained unmistakably strong language. The crowd was told to “fight like hell” or “you’re not going to have a country anymore.” They were urged to march to the Capitol and “stop the steal.” Supporters saw it as political theater, a metaphor for standing up and protesting. Critics saw it as a direct call to attack.

Under the Brandenburg test for incitement, the key questions are intent and imminence. Was the speech directed toward producing lawless action? And was that action likely to happen right away? Here, both seem plausible. The speech targeted a live event—the certification of the election—happening only minutes away. The crowd was fired up and ready to move. When violence erupted almost immediately, it showed how tightly connected the words and actions were.

It’s harder to call the speech facilitation, since it didn’t provide detailed instructions or tactical plans. Still, other organizers and extremist groups in the crowd had shared online posts and encrypted messages about what to bring, where to go, and how to breach the Capitol. All of this behavior fits the idea of facilitation more closely.

Nor does the rally speech easily qualify as a true threat, because it wasn’t directed at one particular person with a specific threat of violence. The danger was collective, not individual.

So the best fit is incitement: speech aimed at provoking immediate unlawful action, in a situation where that action was clearly likely to occur.

Protected or Not?

Under that reasoning, the January 6 speech falls outside the protection of the First Amendment. It wasn’t abstract debate or symbolic protest; it was a direct call to act at a specific time and place, in defiance of the law. The crowd’s rapid response shows that the words both expressed and mobilized anger.

That doesn’t mean every participant’s speech was unprotected, or that political protest should be chilled. The First Amendment continues to guard robust political expression. But the law also recognizes a line between persuasion and performance, between speaking and doing. On January 6, that line was crossed.

The Courts’ View So Far

Courts have been wrestling with these questions ever since. In Thompson v. Trump (2022), a federal district court in Washington, D.C. refused to dismiss civil suits filed by Capitol Police officers and members of Congress who said they were injured in the attack. The judge held that a jury could find that the rally speech “implicitly encouraged the use of violence or lawless action.”

And just this year, in January 2025, a federal appeals court agreed that the lawsuits could go forward. It ruled that former President Trump is not immune from civil liability for allegedly inciting the riot. The decision doesn’t resolve whether his speech was ultimately protected, but it means the question is serious enough to reach a jury.

The Broader Question

The First Amendment protects political speech because democracy depends on it. But it was never meant to protect violence disguised as speech. The hard question now is how to keep that line bright in an era when words can mobilize thousands in real time.

Leave a comment

We’ve been studying Texas v. Johnson in my constitutional law class, a 1989 Supreme Court decision that struck down laws punishing people for burning the American flag. For most students, the case feels like a relic of another era, when flag-burning protests over Vietnam or Reagan-era policies made national news. But on August 25, President Trump issued a new executive order directing federal agencies to “prosecute the burning of the American flag to the fullest extent permissible.” Now, a case we would have read as history has become a live constitutional controversy.

The order opens with lofty, almost devotional language about the flag as “the most sacred and cherished symbol of the United States.” It frames flag burning as “a statement of contempt, hostility, and violence against our Nation,” and calls on the Justice Department to use every available legal tool—from criminal statutes on arson and disorderly conduct to immigration penalties for foreign nationals—to target acts of desecration. It promises to “restore respect and sanctity” to the flag, as if reverence could be legislated back into public life.

But the order also betrays an awareness of constitutional limits. It concedes that Johnson protects flag burning as symbolic speech, yet tries to carve out exceptions. It argues that the Supreme Court never held that flag desecration “likely to incite imminent lawless action” or that counts as “fighting words” is protected. On the surface, that sounds like a clever legal maneuver, a way to punish flag burning without directly contradicting Johnson. In reality, both exceptions are so narrow, and so rarely applied, that they offer almost no room for new prosecutions.

“Imminent lawless action” is the modern test for incitement, a category the Court defined during the Vietnam era to protect political speech from overbroad censorship. It applies only when words are intended and likely to spark immediate violence—like a speaker urging a crowd to attack right now. It’s hard to imagine a flag-burning protest meeting that threshold.

The “fighting words” doctrine is even more fragile. It comes from a 1942 case, Chaplinsky v. New Hampshire, which upheld the arrest of a man who hurled personal insults at a police officer in the street. The Court described “fighting words” as speech so directly abusive that it provokes an immediate punch. But the Court hasn’t used that doctrine to uphold a conviction in over eighty years. Since then, it has protected Vietnam draft protests, racist rallies, and even Westboro Baptist Church’s hateful funeral demonstrations, all on the ground that offensive ideas, however painful, are still ideas.

Why has “fighting words” fallen out of use? Because over time, the Court recognized that protecting only polite or agreeable speech empties the First Amendment of its purpose. The test of free expression isn’t how we treat speech we admire, but how we handle speech that enrages us. A democracy cannot function if every insult or symbol of dissent becomes a trigger for prosecution. Modern courts assume that adults in a free society have a duty to tolerate offensive words, rather than silence them through law enforcement.

That history matters now. When an executive order declares that it will prosecute flag burning to “restore respect and sanctity” to the flag, it’s invoking the same logic that Johnson explicitly rejected: that the government may punish expression because it feels offensive, divisive, or unpatriotic. Wrapping that motive in the language of “law and order” or “fighting words” doesn’t change what it is: a viewpoint-based effort to police dissent.

The order doesn’t create a new crime, but it encourages prosecutors to stretch old ones and to see how far they can go in blurring the line between speech and sacrilege. That might win political points, but it risks something far greater: eroding the very freedom the flag is supposed to represent.

Leave a comment

In just a few weeks, students will return to college campuses across the country—into an environment reshaped by the Supreme Court’s decision to end affirmative action. The effects are no longer theoretical: last year’s freshman class revealed the consequences of that ruling. At Amherst College, Black student enrollment dropped by eight percentage points. At MIT, it plunged from 15 percent to just 5 percent. Yet somehow, Yale, Princeton and Duke maintained their diversity levels, raising uncomfortable questions about whether some schools are quietly working around the Court’s decision.

Now, as the class of 2029 settles into dorm rooms, the Trump administration has escalated the stakes. This spring, federal investigators launched probes into more than 50 universities for alleged racial discrimination — not against students of color, but against white and Asian American students. The charge? That DEI programs (diversity, equity and inclusion) give unfair advantage to underrepresented groups. Unless universities certify that they run no “illegal” diversity efforts, they risk losing federal funds.

That’s more than a shift in enforcement priorities. It’s a stunning reversal: civil rights laws once used to dismantle segregation are now being leveraged to dismantle efforts at racial integration.

Of course, questions about how DEI programs are designed and implemented are fair, and many institutions have taken those critiques seriously. Even those who believe in the fundamental importance of diversity can acknowledge that some approaches have fallen short or have been perceived as exclusionary. These are not reasons to abandon the goals altogether, but to refine how we pursue them.

At heart, though, this isn’t just a policy dispute. It’s a clash between two constitutional visions: one that views equality as requiring colorblindness, and another that understands justice as requiring attention to race and competing histories. The conflict has been decades in the making.

In 1978, in Regents of the University of California v. Bakke, the Supreme Court tried to walk a tightrope. Justice Lewis Powell allowed universities to consider race as one factor among many to promote the educational benefits of diversity. The goal was a richer classroom conversation, not racial remedy.

But by 2003, in Grutter v. Bollinger, diversity had morphed from intellectual enrichment into national necessity. The Court spoke of producing military officers, Fortune 500 executives, and judges who looked like the communities they served. Colleges weren’t just classrooms anymore; they were training grounds for America’s leadership class.

That broader rationale helped Grutter survive constitutional scrutiny — but it came at a price. If diversity served institutional goals rather than individual justice, then who was it really for?

Too often, the answer was: everyone else. Students of color were no longer being admitted because they deserved opportunity or because the law demanded a remedy for past discrimination. They were being admitted to help others learn, to make universities look good, to fill out the brochure. As Justice Clarence Thomas warned in Grutter, such policies risked turning students into instruments of “racial engineering” — valued not for who they were, but for what they symbolized.

And so, the seeds of affirmative action’s downfall were sown.

That downfall came in Students for Fair Admissions v. Harvard (2023). The Court ruled that race-conscious admissions violated the Constitution’s guarantee of equal protection. Chief Justice John Roberts insisted that applicants must be treated as individuals, not as representatives of racial groups. In one sweep, the Court ended the era of affirmative action in higher education.

Trump’s executive orders take that logic even further. They direct federal agencies to review DEI initiatives across the board, not just in admissions, but also in hiring, training, and campus programs. Agencies have been instructed to treat nearly any consideration of race as suspect. Schools that fail to comply face losing federal support.

But this approach ignores a deeper reality: DEI programs often help organizations comply with civil rights laws by ensuring that opportunity is truly equal. When deep-rooted disparities persist, treating everyone “the same” often cements inequality.

This constitutional paradox — between the promise of equal protection and the persistence of unequal conditions — lies at the heart of our national debate. Does fairness mean treating everyone identically, or does it mean recognizing how unequal starting points still shape opportunity?

Recently, a federal judge blocked major portions of Trump’s anti-DEI orders, calling them vague and likely unconstitutional. But the court battle won’t end there. The bigger question remains unresolved.

Maybe the answer isn’t to choose between individual rights and group equality, but to see how one can depend on the other. True individual fairness sometimes requires acknowledging group-based disadvantage. The Constitution’s promise of equal protection isn’t fulfilled by pretending that race doesn’t matter; it’s fulfilled by knowing when it does.

Until we reconcile that fundamental tension, our battles over diversity will keep flaring up with each political swing. The questions aren’t new. But we’re still struggling to answer them.

This piece was published at Deseret News.

Recently, my feed has been a whiplash of contradictions. One moment, a soft-lit “tradwife” praised the joys of submitting to her husband and baking from scratch. The next, a viral TikTok featured college students belting out Taylor Swift’s The Man, lamenting the double standards women still face in public life. The cultural whiplash isn’t just about aesthetics—it points to a deeper tension between how gender operates in our culture and how it’s addressed in our laws. And nowhere is that tension more vivid than in the long, unfinished story of the Equal Rights Amendment.

The ERA is short and clear: “Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” Congress passed the amendment in 1972. Since then, 38 states—the number required for constitutional adoption—have ratified it. And yet it’s still not part of the Constitution. Why? Because the original amendment came with a ratification deadline, and that deadline has long since passed. Efforts to revive or override the deadline have stalled in the courts, leaving the amendment in a kind of legal limbo.

Supporters of the ERA argue that it’s long past time to state explicitly in our founding document what most Americans already believe: that women and men should be equal under the law. They warn that without clear constitutional language, legal protections for gender equality rest on fragile ground, vulnerable to shifting judicial philosophies and political winds. The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, is Exhibit A. Roe was based not on a specific constitutional text, but on the Court’s interpretation of privacy and liberty. And when the Court changed its mind, the right disappeared.

Today, gender equality under the Constitution is protected by judge-made doctrine. Courts apply what’s called “intermediate scrutiny” to laws that classify by sex, meaning the government must show that the law serves an important objective and is substantially related to achieving it. That’s a higher bar than the default “rational basis” test, but lower than the “strict scrutiny” standard applied to racial discrimination. Supporters of the ERA say this two-tier system is itself unequal, and that women’s rights should not depend on a legal balancing act that can shift with the composition of the Court.

Opponents of the ERA raise two main objections. First, they argue the amendment is unnecessary. They point to the body of case law that already prohibits sex discrimination and argue that the current standard offers sufficient protection. Second, they worry that the ERA’s broad language—“equality of rights … shall not be denied on account of sex”—could be interpreted to prohibit any legal distinctions based on sex, even those meant to benefit women. Could it jeopardize women’s sports programs, sex-segregated shelters, or scholarships for women in underrepresented fields? Could it be used to challenge accommodations for pregnancy or caregiving as unfair preferences? Critics fear that a rigid reading of the ERA could create new legal uncertainties and undercut policies designed to account for real differences and lived experiences.

But those concerns also point to why the ERA still matters. Much of the modern gender order relies on implicit compromise—laws and policies that reflect evolving norms, but with no constitutional anchor. That works fine when there’s consensus. But in times of conflict or backlash, those foundations can crumble. We are living in such a moment. The rise of tradwife content and the resurgence of “real man” influencers suggest a deep cultural investment in traditional gender roles. Meanwhile, the gender pay gap persists, workplace structures still penalize caregiving, and basic accommodations like paid family leave remain out of reach for millions of Americans. Equality in theory does not always translate to equality in practice.

Taylor Swift’s The Man became a cultural anthem because it captured a broader frustration: that women still face invisible obstacles and double standards, no matter how hard they work or how much progress is claimed. That frustration, expressed in lyrics and lip-syncs, isn’t just a cultural grievance. It’s a legal one, too.

Constitutional amendments are meant to reflect foundational values. They clarify the rules of the road, especially when courts and culture diverge. The ERA wouldn’t end the debate about gender roles, nor would it flatten real differences between men and women. What it would do is provide a clear, enforceable guarantee that sex equality is not optional or subject to political fads. It would give lawmakers and judges a firm standard. And it would give future generations something this one still lacks: a Constitution that says, without ambiguity, that gender equality is a national commitment and not just a cultural aspiration.

Leave a comment

President Trump’s decision to bypass the Senate and reinstall Alina Habba as interim U.S. attorney for New Jersey — after her nomination was rejected by a federal judicial panel and blocked by two senators — might seem like just another Washington power struggle. But this episode, along with the administration’s defiance of court orders on deportations and punishment of reporters for unfavorable coverage, reveals a concerning pattern that more and more observers see as a systematic erosion of the unwritten rules that make American democracy work.

These aren’t mere political norms or Washington etiquette. They are constitutional norms — the informal expectations that translate the Constitution’s broad text into actual governance. For over two centuries, these unwritten rules have filled the gaps the framers couldn’t anticipate, ensuring that presidents comply with court orders, respect the Senate’s confirmation role and avoid punishing the press for critical coverage. Their breakdown threatens the legal protections every American depends on.

The framers designed our system knowing they couldn’t draft rules for every crisis. George Washington and his contemporaries relied instead on good faith, restraint and habits of compliance to make the Constitution work. The document’s deliberate ambiguity wasn’t a flaw but a key feature, and it depended on leaders respecting the system even when breaking it might offer short-term advantage.

These informal guardrails have been tested before, sometimes severely. Lincoln suspended habeas corpus during the Civil War. FDR threatened to pack the Supreme Court and authorized Japanese internment. Nixon defied congressional subpoenas during Watergate. Reagan’s administration circumvented Congress during Iran-Contra. The Bush administration expanded surveillance and detention powers after 9/11.

In each case, constitutional norms ultimately reasserted themselves. Lincoln’s emergency measures ended with the war. FDR retreated from court-packing when public opinion turned against him. Nixon resigned rather than face impeachment. Iran-Contra led to prosecutions and congressional reforms. Post-9/11 overreach faced judicial pushback and legislative constraints. Even when presidents pushed boundaries, violations carried political costs and triggered corrective responses that reinforced the system’s limits.

In the Trump administration, we are seeing an inverting of this incentive structure. Rather than facing political costs for norm-breaking, the president has discovered that defiance energizes his base. Rather than an unfortunate necessity, dismissing constitutional expectations seems almost to have become a deliberate tactic. This transforms violations from exceptions that prove and further reinforce the rule into a continued erosion of the rules themselves.

The consequences extend far beyond Washington power games. Presidential appointments of prosecutors without Senate oversight undermine the independence that protects citizens from politically motivated investigations. Executive defiance of court orders signals that legal protections are negotiable, weakening remedies for everyone from immigrants facing deportation to citizens challenging government overreach. And punishing journalists for critical coverage chills press freedom and deprives voters of the independent information democracy requires.

Not every constitutional norm deserves preservation. Some have protected injustice —for example, Senate “courtesy” rules that allowed Southern senators to block civil rights legislation for generations. The mere existence of a tradition doesn’t make it sacred. But there’s a crucial difference between reforming norms to promote equality and discarding them for partisan advantage. Thoughtful reform strengthens constitutional governance; systematic violation hollows it out.

Conservative Judge J. Harvie Wilkinson captured this distinction in his recent opinion critiquing the administration’s defiance of a Supreme Court order. Judge Wilkinson contrasted this current resistance unfavorably with Eisenhower’s decision to send federal troops to enforce desegregation — a case where a president accepted judicial authority despite enormous political risk. Supreme Court Justice Elena Kagan has similarly warned that defiance of court rulings erodes public trust in the judiciary itself.

The framers left constitutional gaps because they assumed leaders would respect limits even when inconvenient. That assumption, once a strength of American democracy, now looks like a vulnerability. If bypassing confirmation processes, defying court orders, and punishing critical coverage become routine political moves, then the Constitution’s unwritten rules become no rules at all.

What’s at stake isn’t just institutional dignity or democratic norms in the abstract. It’s whether Americans can count on legal protections when they need them most. Will courts have authority to stop government overreach? Will prosecutors be independent enough to follow evidence wherever it leads? Will journalists be free to report uncomfortable truths?

Constitutional norms exist to ensure these questions have reliable answers. Their erosion leaves citizens more vulnerable to the very government abuses the Constitution was designed to prevent. In a system where compliance with legal limits becomes optional, law becomes politics by another name — and the presidency escapes its constitutional constraints entirely.

The choice isn’t between rigid adherence to outdated traditions and necessary democratic reform. It’s between a constitutional system where informal rules reinforce legal protections and one where those protections depend entirely on the goodwill of whoever holds power.

Americans have confronted presidential overreach before, but never in a context where norm-breaking itself becomes politically rewarding rather than costly. The systematic nature of current violations — and the incentives that drive them — represents uncharted territory for American democracy.

This piece was previously published at Deseret News.

In recent decades, religious liberty cases have become some of the most contested and symbolically charged moments in American constitutional law — flashpoints where faith, identity and pluralism seem to collide. From the baker who refused to design a wedding cake for a same-sex couple to the coach who prayed at the 50-yard line, these conflicts are frequently framed as zero-sum: One group’s freedom is seen as another’s loss.

But what if that framing misses something deeper? What if the key to navigating these tensions lies not in choosing between liberty and equality, but in understanding how the two are fundamentally entwined?

That’s the insight at the heart of a law review article by constitutional scholar Kenji Yoshino, titled “The New Equal Protection.”

Writing in the wake of Lawrence v. Texas — the 2003 case in which the U.S. Supreme Court struck down a Texas law criminalizing same-sex intimacy — Yoshino observed that the court’s reasoning rested not only on liberty but on the indignity such laws imposed. Years before Obergefell v. Hodges (2015), which established same-sex couples’ right to marry, Yoshino saw a new pattern emerging: The court wasn’t simply alternating between liberty and equality — it was often using both, held together by a deeper value. That value was dignity.

Rather than viewing liberty and equality as distinct or even competing constitutional principles, Yoshino proposed that they operate like the two strands of a double helix — intertwined and animated by a commitment to human dignity. Though Yoshino’s analysis focused on cases involving LGBTQ+ rights and racial discrimination, his framework offers a powerful lens for understanding today’s most polarizing legal conflicts, including those over religious liberty.

Religious liberty cases are typically litigated as liberty claims. Plaintiffs argue for the freedom to believe, worship or act in accordance with conscience. But listen more closely and you’ll often hear an undercurrent of something else. These cases are not only about the freedom to act; they’re about the demand to be seen and treated as moral equals; to not be cast as outsiders or bigots in a rapidly changing society. That’s an equality concern. And when the courts recognize it, explicitly or not, they are making a dignity claim.

Take Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), a case in which the court ruled that a state agency had violated a Christian baker’s rights by showing “clear and impermissible hostility” toward his religious beliefs. The holding was narrow, and it did not resolve the underlying conflict between religious conscience and anti-discrimination law. But the court emphasized that the state had failed to treat the baker’s faith with the “neutrality” the Constitution demands. The real harm, in other words, wasn’t just a restriction on liberty; it was a failure of equal regard.

Or consider Holt v. Hobbs (2015), where the court unanimously sided with a Muslim inmate who wished to grow a half-inch beard in accordance with his faith. The state argued that such a beard posed security risks; the court disagreed, holding that denying the accommodation imposed a substantial burden on the inmate’s religious exercise. But beyond the legal test, the opinion resonated with something more: the sense that his religious identity deserved recognition. The ruling affirmed not just his right to act freely but his right to be treated as a person of conscience. That, too, is dignity in action.

Subscribe now

Of course, dignity does not always mean the same thing to everyone. In LGBTQ+ rights cases like Lawrence and Obergefell, dignity is often articulated through the lens of personal authenticity, the right to live openly and equally according to one’s identity and relationships. In the religious liberty context, however, dignity tends to be rooted in moral autonomy, the belief that one must act in accordance with divine command, even when it conflicts with prevailing social norms. The source of dignity, in other words, shifts: It is internally constructed in one context and externally grounded in the other. That distinction is critical to understanding why these cases can feel so fraught. They are not just about clashing rights, but about clashing understandings of what it means to live a dignified life.

This complexity helps explain the emotional charge behind what Yoshino has elsewhere called “pluralism anxiety” — the unease people feel when the recognition of one group’s identity appears to threaten another’s. When the court affirms the dignity of LGBTQ+ individuals, some religious communities experience that affirmation as a denial of their own. When religious claimants prevail, others fear a rollback of civil rights protections. These are not simply legal disagreements; they are moral contests about whose vision of dignity the law will endorse.

Yet it’s precisely here that Yoshino’s framework becomes most powerful. Rather than forcing courts or the public to choose between liberty and equality, it invites us to ask whether we can pursue both — by grounding our legal commitments in a shared recognition of human worth. Instead of framing every case as a win or loss for one identity group, we might consider how law can affirm the dignity of all involved. Can the Constitution protect the couple seeking to marry and the clerk who objects to certifying it? Can it uphold both expressive freedom and equal access?

These are not easy questions. But they are more fruitful than the combative posture that dominates so much of our discourse. And they move us closer to a constitutional culture that resists winner-take-all logic — where disagreement does not mean dehumanization.

Yoshino himself did not extend his dignity-as-double-helix theory to religious liberty, and applying it in that domain requires care. Religion raises unique questions of authority, obedience and communal identity that cannot be mapped neatly onto frameworks built around individual autonomy. But if dignity is to mean anything in pluralistic democracy, it must stretch to include those whose deepest commitments are shaped not by self-expression but by submission to a higher power.

As the court continues to wrestle with questions at the intersection of identity, belief and public obligation, it’s worth remembering that liberty and equality are not isolated guarantees. They are entwined, each incomplete without the other. And what binds them — what gives them meaning in a divided and diverse society — is dignity: the recognition that every person, regardless of creed or conviction, is worthy of being seen, heard and treated as fully human.

In an age of division, dignity may be the Constitution’s most radical idea. And also its most necessary.

Leave a comment

This piece was previously published at Deseret News.

One of the more striking moments in Mahmoud v. Taylor came not in the Court’s holding, but in a comparison: Montgomery County Public Schools (MCPS), which refused to allow opt-outs for families objecting to LGBTQ+-inclusive storybooks, simultaneously granted opt-outs to students whose families objected to viewing an image of the Prophet Muhammad.

That wasn’t a hypothetical. It was the school district’s own policy, cited in oral arguments and acknowledged in the briefs. The image of Muhammad appeared in school materials (likely part of a broader lesson on religion or culture) and for Muslim students, seeing a visual depiction of the Prophet is religiously prohibited. The school understood that. It didn’t treat the exemption as dangerous or destabilizing. It honored it quietly, as a matter of conscience.

So why draw the line there? Why allow an exemption for one sincerely held belief, but deny it for another?

This question reveals the real fault line in Mahmoud. It’s not between inclusion and exclusion. It’s between pluralism that accommodates difference, and pluralism that demands uniformity.

The Slippery Slope Objection

Critics of the Court’s ruling worry that if parents can opt their kids out of affirming LGBTQ+ identities, what's to stop them from opting out of lessons on interracial marriage? Or exposure to Muslim characters, immigrant families, or women in leadership? Doesn’t this open the door to selective ignorance—carving out every difference someone finds uncomfortable?

It’s a serious concern. And the Court took it seriously. But it answered not by denying the risk, but by clarifying the principle: this case isn’t about exposure. It’s about compulsion.

In oral arguments, petitioners made clear they weren’t demanding schools strip classrooms of books featuring same-sex couples or transgender characters. They were objecting to a curriculum that required affirmation, not just awareness. One that instructed five-year-olds that disagreement was “hurtful,” and teachers to correct students who echoed their family’s religious teachings.

The analogy to the Muhammad image matters here. Exposure to diverse views or people is not the issue. Exposure that crosses the line into coercive participation—that’s where the burden lies. In many Islamic traditions, especially among Sunni Muslims, visual depictions of the Prophet Muhammad are not just discouraged, they are prohibited as a form of idolatry. For students raised in these traditions, sitting through a lesson that features such an image isn’t passive observation; it’s perceived as active complicity in a religious violation. Even silent presence becomes a form of participation in what their faith forbids.

That’s why the Muhammad exemption and the Mahmoud challenge are of a piece: both involve content that, for some families, requires more than quiet disagreement. It demands participation in something their faith prohibits. And it’s precisely in that shift—from awareness to engagement, from acknowledgment to affirmation—that the constitutional burden arises.

This is not about protecting fragility. It’s about limiting the state’s moral authority over children when that authority overrides the formative role of parents.

We Can Draw Lines

Yes, some families might try to claim opt-outs for a wide array of reasons, including discriminatory ones. But our constitutional system is not allergic to line-drawing. Courts regularly assess whether a claimed burden is religious, sincere, and substantial. Not every request gets a green light. And as the petitioners noted, in jurisdictions that already allow broad opt-outs, the floodgates haven’t opened. Parents, it turns out, mostly seek accommodations when the moral stakes are high and the age is young.

Pluralism does not mean every belief gets equal agreement. It means every person gets equal dignity in navigating moral disagreement. When schools allow a Muslim student to sit out a lesson involving the Prophet’s image, they don’t validate the belief. They validate the person who holds it.

Likewise, when families object to moral instruction that contradicts their religious convictions, the state is not required to affirm those beliefs—but neither can it deny their legitimacy wholesale.

That is the danger in how MCPS handled this case. It didn’t just teach a view. It demanded compliance. And in doing so, it crossed the constitutional line.

Opt-out policies aren’t loopholes for bigotry. They’re pressure valves for pluralism. And like any good civic design, they work best when guided by principle, transparency, and respect—not panic about where they might lead.

Mahmoud doesn’t erase inclusion. It reminds us that inclusion worth having is inclusion we don’t force.

Leave a comment

In Mahmoud v. Taylor, the Supreme Court dealt with a relatively clear constitutional wrong. Montgomery County Public Schools introduced LGBTQ+-themed books into its K–5 curriculum, then barred all opt-outs and trained teachers to respond to religiously based student objections with moral correction. The message wasn’t just, “These families exist,” but rather, “This is what’s right—and if you disagree, you’re wrong.” That crossed the line from inclusion to compulsion. The Court held that such a policy placed a substantial burden on the parents’ Free Exercise rights and required strict scrutiny.

But the harder question is: what happens when a school includes a book that simply shows, without commentary, a child with two moms or two dads? There’s no teacher prompt, no corrective script. A student asks about it, and the teacher replies, “Some families are like that. You can talk to your parents if you have questions.” Does that quiet act of inclusion still trigger a need to accommodate religious objections?

Give a gift subscription

The Court addressed this concern by distinguishing “mere exposure” from the more coercive context in Mahmoud. This wasn’t a case about a fleeting reference or a single page in a book. It involved repeated, mandatory exposure, combined with an institutional framework that instructed teachers to affirm specific moral messages and actively discourage dissent.

“The question in cases of this kind is whether the educational requirement or curriculum at issue would ‘substantially interfer[e] with the religious development’ of the child or pose ‘a very real threat of undermining’ the religious beliefs and practices the parent wishes to instill in the child.”

Children as young as five weren’t simply encountering diverse worldviews—they were told to celebrate them, with no option to process, question, or opt out. The curriculum crossed the line from passive representation to prescriptive moral instruction.

That line matters. When the state mandates moral messages, refuses opt-outs, and positions teachers to correct religiously grounded objections, it imposes a burden that must be constitutionally justified. But when a school simply depicts different kinds of families (without moralizing or requiring students to internalize those portrayals), the legal analysis changes. The burden, if any, becomes too attenuated to be constitutional.

Still, even if no legal accommodation is required in these quieter cases, the cultural question remains. LGBTQ+ students deserve to see themselves reflected in classroom materials. So do religious families deserve the dignity of not having their beliefs flattened or vilified. In a pluralist society, inclusion and conscience are not mutually exclusive, but holding them together requires nuance.

Mahmoud sets a floor: when inclusion becomes instruction, and disagreement is penalized, accommodation is constitutionally necessary. But it also leaves space for schools to reflect diversity without triggering litigation—so long as they do so with restraint, neutrality, and respect for parental role.

The real test is not the loud conflict, but the quiet moment: a book with two dads, a student’s question, a teacher’s calm answer: “Some families are like that. Ask your parents what they think.” That’s not indoctrination. That’s pluralism in practice. And it may be our best chance to keep the peace in a divided democracy.

Leave a comment

In the national debate over LGBTQ+ inclusion in schools, it’s easy to assume only two camps exist: those who want to erase queer identities from public life, and those who want them fully embraced in every public institution. But Mahmoud v. Taylor, decided today by the Supreme Court, disrupts that binary. Rather than framing the case as a victory for one side in the culture wars, the Court’s opinion zeroes in on something more subtle: the state’s duty to accommodate conscience when it takes on the role of moral educator.

The case arose from a policy adopted by Montgomery County Public Schools (MCPS) in Maryland, which introduced a series of LGBTQ+-inclusive storybooks into its elementary language arts curriculum. These books are gentle in tone but unambiguous in message: same-sex marriage is joyful, gender identity is self-defined, and societal norms that suggest otherwise are not just mistaken but harmful. Originally, MCPS allowed religious parents to opt their children out. Then, in March 2023, the district reversed itself—declaring that no opt-outs would be permitted, even for families whose faith traditions affirm different moral understandings.

Parents from a wide range of religious backgrounds—Muslim, Catholic, Orthodox Christian, and more—challenged that decision. Their concern wasn’t just about content, but about the absence of any way to respectfully dissent.

Lower courts dismissed their claims. But in a 6–3 ruling, the Supreme Court reversed, anchoring its decision in Wisconsin v. Yoder (1972), where the Court had protected the right of Amish parents to withdraw their children from formal schooling past eighth grade. There, as here, the state’s educational goals were weighed against the deep, identity-shaping commitments of religious families. And there, as here, the Court concluded that the state's interest—important as it may be—was not absolute.

What tipped the scale? Not the existence of LGBTQ+ stories, but their presentation. The curriculum didn’t merely expose students to diversity—it trained them to affirm one vision of identity as right and others as wrong. Internal guidance from MCPS instructed teachers to challenge students who disagreed. If a child echoed their parents’ belief that boys can’t marry boys, the teacher was to correct them: “Two men who love each other can decide they want to get married.” A child questioning a character’s gender identity might be told their comment was “hurtful,” or even bigoted.

In other words, these weren’t neutral narratives—they were moral lessons, reinforced by adult authority figures, delivered to students as young as five. And when those lessons contradicted core tenets of a student’s faith, families had no option but compliance. The state had removed not only the possibility of opting out, but the very idea that a principled objection could exist.

That’s where the Court drew the line. It declined to say that schools can’t teach inclusive values. But it insisted that inclusion must leave room for divergence. Justice Alito, writing for the majority, emphasized that not every exposure to disfavored ideas amounts to a constitutional injury. What matters is whether the state creates real pressure to conform—and whether it does so without offering a procedural release valve. That’s what made the MCPS policy constitutionally infirm: not the stories themselves, but the refusal to recognize pluralism in how those stories would be received.

Critics worry this ruling will usher in a wave of religious opt-outs—fracturing public education and enabling parents to exempt their children from lessons on everything from evolution to civil rights. The Court’s majority disagreed. It framed Mahmoud not as an all-access pass to curricular avoidance, but as a case about institutional rigidity. It signaled that accommodation is not always required—but when schools fuse moral messaging with mandatory participation, procedural safeguards matter.

This is more than a legal ruling—it’s a civic signal. Pluralism cannot survive on celebration alone. It requires mechanisms of dissent. That means honoring the reality that parents come to public schools with divergent beliefs—and that democratic education must make room for those differences, not flatten them.

Opt-out policies are not tools of exclusion. They are a way to ensure inclusion doesn’t harden into compulsion. When managed carefully and transparently, they allow schools to meet constitutional obligations without sacrificing their mission to create affirming environments. The hard work lies in striking that balance—but abandoning the effort altogether, as MCPS did, isn’t neutrality. It’s coercion.

What Mahmoud makes clear is that true inclusion in public education isn’t just about whose stories get told. It’s about whether families have any choice in how their children engage with those stories—and whether the state is willing to accommodate that choice in good faith. The constitutional answer, at least for now, is yes.