Berkley Center

Religious liberty is on a roll in the United States. Over the past decade, the U.S. Supreme Court has made it clear that states may not discriminate against religious schools, the religious convictions of business owners must be protected, public employees cannot be prohibited from engaging in religious acts, and parents have a right to opt their children out of instruction to which they have religious objections. Moreover, states themselves do much to protect religious freedom, as indicated by Religious Liberty in the States 2025, a study I co-direct that considers 47 distinct ways that states may guarantee freedom of conscience. 

But work remains. To better protect what the founders of the United States called “the sacred right of conscience,” President Trump formed the Religious Liberty Commission to report on the foundations of religious liberty and to advise the newly created White House Faith Office and Domestic Policy Council. Co-chaired by Texas Lt. Gov. Dan Patrick and Dr. Ben Carson, the commission has 14 members and an executive director. 

To assist the commission, the president appointed 26 citizens to three advisory boards. I am honored to be among them. I was also pleased to testify, along with six other experts, at the commission’s first meeting on June 16, 2025. I highlighted the founders’ commitment to robustly protecting religious liberty for all citizens, but I write here to suggest priorities I think the commission should focus upon. My comments may or may not reflect the views of other advisory board or commission members.

Just this term, the United States Supreme Court handed parents a major victory when it said the Free Exercise Clause requires school districts to permit parents to opt children out of instruction to which they have religious objections. The Court might have also based its decision on the long-recognized unenumerated but judicially enforceable right of parents to direct the education and moral formation of their children. 

Parental rights surely include the freedom to send children to private schools, to teach them at home, and to opt them out of instruction in public schools that they deem offensive. But few families have the resources to send their children to private schools or to homeschool them, and fewer still have the time to vigilantly monitor the day-to-day instruction in public schools. 

By far and away, I believe that the best way to protect the right of parents to oversee the education of their children is to enable them to send them to schools of their choice. I am heartened by strong movements in many states (usually red) to make school choice a real option. Whether through charter schools, educational savings accounts, or vouchers, enabling parents to send their children to schools that reflect their values and religious convictions should be a top priority for the United States’ civic leaders.

In addition to wonderful progress in states, Congress recently passed a national school voucher plan which should do much to expand school choice. Unfortunately, states are able to opt-out of it. This could have the unfortunate result of robust school choice in red states and little to no school choice in blue states. Every effort should be made at the state and national level to ensure that all parents have a meaningful ability to send their children to schools that reflect their convictions.

Strongly related to the above, states and the national government must ensure that children are not subjected to life-altering medical treatments that contradict deeply held beliefs that are embraced by religious and non-religious citizens alike. The Supreme Court recently upheld a state law prohibiting many such procedures for minors, but there are an estimated 1,215 school districts with “parental preclusion policies” whereby school district officials can allow minors to change their gender at school without parental knowledge or consent. Such policies must be abolished and both states and the national government should better protect children in these matters. 

Before the Religious Liberty Commission had its first meeting, the Freedom From Religion Foundation (FFRF) and Americans United for Separation of Church and State (AU) denounced it as a Christian nationalist project. Although “Christian nationalism” is a fuzzy concept, certainly it must include privileging Christianity above other faiths. In my testimony, I emphasized that the founders of the United States understood that the religious liberty of all citizens must be robustly protected, and I quoted at some length from my favorite letter from the era, George Washington’s magnificent 1790 missive to the Hebrew Congregation in Newport, Rhode Island, where he insisted that: 

All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires...

My testimony, and similar testimony from my fellow experts, did nothing to alter cries of “Christian nationalism” from separationist groups. 

After the proceedings on June 16, I had an informal and impromptu meeting with four advisory board members. Among us, there was one Protestant, one Catholic, one Orthodox Jew, and two practicing Muslims. We started a list of concerns some religious minorities have that might not be obvious to Christian commission members. It includes (1) objections to being asked to transport or serve alcohol (which affects, among others, taxicab drivers and waiters); (2) state jobs that require dress codes that prevent Muslims from holding them (e.g., police officers), (3) zoning laws that keep Jews from building eruvs, which are necessary for carrying objects outside on the Sabbath, and (4) laws that force observant Jewish parents to choose between accessing special-needs services or immersive Jewish education. 

We have sent this list to the commission’s executive director and suggested that the commission hear testimony from non-Christian minorities that highlight such concerns. I am under no illusion that such hearings or even proposed executive orders/legislation to better protect religious minorities will quiet groups like FFRF and AU, but I write about them here to assure my fellow citizens that many (likely all) of us are dedicated to protecting the religious liberty of all citizens. 

Religious freedom is well protected in the United States, but the same can no longer be said for many other western democracies. I am confident that the commission will propose policies that will keep the United States from following in Europe’s footsteps and, more positively, build on the protections we now enjoy.