Trump and Separation of Church and State: Commission and Lawsuit

In June 2026, President Trump’s Religious Liberty Commission formally asked the Justice Department to reinterpret the Establishment Clause and treat the separation of church and state as a “legal error,” the clearest sign yet that the Trump administration intends to lower the barriers between religion and government across federal law, education, healthcare, and the military. The 224-page draft report, delivered to Trump in the Oval Office on June 26, 2026, is the capstone of a run of executive actions begun in his second term’s first weeks, and its fate now depends on whether the Justice Department issues the guidance it asks for, whether a pending federal lawsuit forces the commission off the field, and whether a Supreme Court that has already dismantled older church-state tests goes further still.

What the Commission Is Asking the Government to Do

Trump created the Religious Liberty Commission by executive order on May 1, 2025, housed it in the Department of Justice, and named Texas Lieutenant Governor Dan Patrick as chairman and Dr. Ben Carson as vice chair.¹² Its membership was drawn almost entirely from conservative religious, legal, and media circles, including Franklin Graham, Cardinal Timothy Dolan, First Liberty Institute’s Kelly Shackelford, Pastor Paula White, Eric Metaxas, and Dr. Phil McGraw, with legal advisers including Alliance Defending Freedom CEO Kristen Waggoner.³

The report’s central argument is that decades of Establishment Clause rulings pushed religion out of public life wrongly, and that church and state should “strengthen and support one another.” Chairman Patrick said the traditional reading of separation had been used to “batter and hammer people of faith for the last 70 to 80 years.”⁴⁵

Twelve formal recommendations followed. The first and most consequential asks the president to direct the Justice Department to issue guidance “clarifying the proper understanding of the Establishment Clause and separation of church and state.”⁶ As of late June 2026, the DOJ had not begun drafting that guidance, and the report remained in a public comment period through July 12, 2026.⁷

The other recommendations ask the administration and Congress to:

Repeal the Johnson Amendment, the tax code provision that bars tax-exempt religious organizations from endorsing or opposing political candidates.⁸
Expand religious conscience exemptions covering vaccine mandates, pronoun usage, and classroom lessons.⁸
Open federal grants and contracts more widely to faith-based social service agencies.⁹
Create a dedicated DOJ religious liberty task force and reporting hotlines across federal agencies.⁶
Restore benefits and re-enlistment eligibility for service members discharged for refusing the COVID-19 vaccine on religious grounds.⁶
Prioritize federal judges who decide cases “on their merits” rather than through what the report calls “improper judicial avoidance.”⁶
Distribute “Know Your Rights” posters in schools, hospitals, and military installations, and establish a “Presidential Medal of Religious Liberty” and “First Freedom Hero Awards.”⁸

Receiving the report, Trump said the commission had made “very strong recommendations” and that the administration would need to “convince people to adhere by those regulations.”¹⁰

The Executive Actions That Set This Up

The commission’s report did not arrive cold. From the first weeks of the second Trump term, a sequence of executive actions reshaped how the federal government interacts with religious institutions.

The Anti-Christian Bias Task Force

On February 6, 2025, Trump signed an executive order creating a “Task Force to Eradicate Anti-Christian Bias” at the Justice Department, chaired by the Attorney General and composed of sixteen agency heads. It was directed to review Biden-era policies for what the order described as “unlawful anti-Christian” conduct.¹¹ The task force released a 200-page report on April 30, 2026, accusing the prior administration of targeting Christian universities with disproportionate fines, imposing gender identity policies that conflicted with religious belief, and dismissing religious objections to vaccine mandates as insincere. The administration said it had rescinded several Biden-era memos, issued new Office of Legal Counsel guidance on religious liberty protections for federal employees, and resumed FACE Act enforcement to protect houses of worship.¹²

The White House Faith Office

A day later, on February 7, 2025, a separate executive order established the White House Faith Office within the Domestic Policy Council and charged it with ensuring faith-based organizations could compete on a “level playing field” for federal grants and contracts.¹³¹⁴¹⁵

Prayer in Public Schools

On February 5, 2026, the Department of Education issued updated guidance on prayer and religious expression in public schools, replacing a 2023 Biden-era document. The new guidance affirms that students and teachers may pray in school as long as the prayer is not school-sponsored, disruptive, or coercive, and it adds that a teacher may pray with willing students when not acting in an official professional capacity. The guidance is not legally binding but describes how the department will evaluate civil rights complaints. It cites Kennedy v. Bremerton School District (2022) and Mahmoud v. Taylor (2025) as its legal foundation.¹⁶¹⁷

Why the Supreme Court Matters Here

None of this would be plausible without a Supreme Court that has already moved. In Kennedy v. Bremerton School District (2022), a 6-3 majority written by Justice Neil Gorsuch abandoned the Lemon v. Kurtzman test that had governed Establishment Clause cases since 1971. Under Lemon, a government action touching religion needed a secular purpose, could neither advance nor inhibit religion, and could not foster excessive entanglement. The Kennedy majority called that framework “ahistorical” and replaced it with a standard rooted in “historical practices and understandings,” while rejecting the view that the Establishment and Free Exercise Clauses are “warring” and holding instead that they serve “complementary” purposes.¹⁸ Legal scholars have noted that by abandoning Lemon, the Court may have narrowed Establishment Clause violations to situations involving direct coercion.¹⁹

On the funding side, Carson v. Makin (2022) held that Maine violated the Free Exercise Clause by excluding religious schools from a state tuition assistance program because they offered sectarian instruction. Together with Trinity Lutheran v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), the ruling means governments that fund private education generally cannot exclude religious schools solely for teaching religion.²⁰

Most recently, in Mahmoud v. Taylor (2025), the Court ruled 6-3 that Montgomery County, Maryland, public schools had to allow parents to opt their children out of LGBTQ-inclusive curriculum materials on religious grounds. Justice Samuel Alito’s majority opinion held that when a school policy “substantially interferes with the religious development” of children, strict scrutiny applies even if the policy is facially neutral. Justice Sonia Sotomayor’s dissent warned the ruling effectively granted religious parents a “veto” over public school curricula.²¹²²

The lower federal courts have shifted in the same direction. Trump appointees include Fifth Circuit Judge Don Willett, a former director at the White House Office of Faith-Based and Community Initiatives who has argued against “rigid separationism”; Ninth Circuit Judge Lawrence VanDyke, who has maintained that teaching creationism in public schools is constitutional; and Eighth Circuit Judge Steven Grasz, who once petitioned to classify evolution as a theory rather than fact to protect religious rights.²³

The Lawsuit and the Opposition

The commission itself is being sued. In February 2026, a coalition led by the Interfaith Alliance, Muslims for Progressive Values, the Sikh American Legal Defense and Education Fund, and Hindus for Human Rights filed suit in the Southern District of New York. The plaintiffs alleged that the commission violated the Federal Advisory Committee Act, which requires advisory panels to be “fairly balanced” among competing viewpoints, because its membership consisted almost entirely of conservative Christians and one Orthodox Jewish rabbi and excluded minority religious traditions and nonreligious Americans. They also alleged the commission withheld meeting minutes, transcripts, and hearing summaries required to be public. A motion for preliminary injunction was filed on April 2, 2026, and the government later posted some previously withheld records in May 2026. The litigation remained ongoing when the draft report was released.²⁴²⁵

Rep. Jared Huffman, a California Democrat and member of the Congressional Freethought Caucus, called the commission a “sham” stacked with “right-wing Christian nationalist extremists” and said its recommendations would move the country “closer to a right-wing theocracy.”²⁶ Rev. Paul Brandeis Raushenbush, president and CEO of the Interfaith Alliance, called the report a “betrayal of the original intention of the promise of religious freedom guaranteed in the First Amendment.”⁷

Eleven days before the commission’s release, on June 15, 2026, a coalition including the Center for American Progress, Americans United for Separation of Church and State, the Interfaith Alliance, and the American Humanist Association published a preemptive counter-report titled “Religious Liberty for All: Celebrating This Founding Freedom at America 250.” Its twenty contributors included Senator Chris Coons, Representatives Huffman and Jamie Raskin, and Rabbi David Saperstein. The counter-report argued that true religious freedom must protect all traditions and nonbelievers alike, framed religious liberty as a “shield, not a sword,” and accused the administration of “weaponizing” the concept to grant Christianity a privileged status.²⁷

The Constitutional Question Underneath

The whole fight turns on competing readings of the First Amendment’s Religion Clauses. The Establishment Clause says “Congress shall make no law respecting an establishment of religion”; the Free Exercise Clause protects the right to practice religion without government interference; and Article VI bars religious tests for public office.²⁸ The phrase “wall of separation between the church and state” comes from Thomas Jefferson’s 1802 letter to the Danbury Baptist Association. In Everson v. Board of Education (1947), the Supreme Court applied the Establishment Clause to state and local governments for the first time, and the Lemon test followed in 1971 and governed for decades before Kennedy set it aside.²⁹

The commission’s position is that this long tradition of separation was itself a departure from the founders’ intent. Its first recommendation asks the Justice Department to promote what the report calls an “originalist understanding” of the relationship between the Constitution, religion, and government.⁵ Whether the DOJ issues that guidance, whether the pending lawsuit disrupts the commission’s work, and whether the Supreme Court accepts the reframing in a future case will decide how much of the report becomes law.

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