One Nation Under God: Legal Challenges to the Separation of Church and State

By: Oscar Guzzino

Edited by: chloe shah and Simon carr

Last month, President Trump issued an executive order that degrades a core pillar of the Constitution: the separation of church and state. The order established the White House Faith Office (WHFO) in place of the Office of Faith-Based and Neighborhood Partners (OFBNP). President Trump designed the organization to support the development of faith-based organizations and institutions while facilitating their cooperation with the government. [1] The WHFO poses a worrying challenge to the pillar of church and state separation, and it’s arguably unconstitutional. Furthermore, the President’s rhetoric surrounding the office indicates his plans to build a Christian-dominated legal power structure.

The February 7th executive order only renamed a previously existing organization, the White House Office of Faith-Based and Neighborhood Partners (OFBNP). [2] This organization has always been controversial with regards to government independence from religious organizations. For example, in 2007, the Supreme Court heard Hein v. Freedom from Religion Foundation, in which the Freedom from Religion Foundation (FRF) argued that the OFBNP wrongfully violated the Establishment Clause of the First Amendment. [3] The Court ruled that the FRF had no standing to sue, but this was just one of many challenges to the OFBNP and the continuing modern trend of church-state intermingling. Additionally, in 2002, the FRF attempted to sue Wisconsin correctional authorities for using state funds to support a Christian halfway house in Freedom from Religion Foundation v. McCallum, arguing that the funding violated the Establishment Clause. [4] However, the court ruled that the halfway house served a legitimate secular purpose and was therefore not in violation with the clause. While the White House Faith Office and its applications have precedent, there is still danger of unconstitutional applications of the WHFO.

The executive order issued on the 7th of February states that the WHFO has duties to “convene meetings with representatives from the Centers for Faith,” advise the President on methods by which policy can be implemented “enabling faith-based entities…to better serve families and communities,” and “coordinate with all agencies” to better allow “faith-based entity grantees to build their capacity to procure grants,” as well as several other functions. [5] President Trump is restructuring the office to create not only a strong cooperation between faith-based organizations and the government, but a significant level of support as well. Specifically, the WHFO pledges to help religious organizations increase their capacity to acquire grants and raise money. Additionally, the WHFO offers an avenue for faith-based organizations to influence policy decisions, as the WHFO, which meets with these organizations, is tasked with recommending policy and programs to the president that would be beneficial to them. These duties, while not new, are a blatant affront to the Establishment Clause.

While the plain text of the executive order is non-denominational, it would be practically impossible for a President to utilize this office in a manner that respects the First Amendment, which restricts the government from promoting an “establishment of religion”. [6] The aid of any faith-based entity in acquiring grants or advantageous legislation would constitute a promotion of the establishment of that entity’s religion. Because faith-based entities are, by definition with very few exceptions, always supporting one specific religion, aiding them would provide an advantage to that religion’s institutions, signifying a promotion of it. This is a violation of the Establishment Clause, which explains the unprecedented nature of this executive order.

In 1971, the Supreme Court ruled in Lemon v. Kurtzman that a statute not in violation of the Establishment Clause must serve a legitimate secular purpose, refrain from advancing or inhibiting religion, and prevent excessive government entanglement with religion. [7] While the WHFO does serve a legitimate secular purpose in securing funding for religious organizations, it undoubtedly fails the other two tests. The WHFO by nature advances religion by giving religious groups elite access to the White House and making it easier for them to secure funding. Additionally, the Office grievously entangles the government with religious organizations by creating infrastructure for mingling between the two bodies. With the avenues proposed by the WHFO, religious organizations rely on the government to help them secure funding and meet with political leaders. In this way, the government and religious organizations become linked together, failing the Lemon test.

The White House Faith Office’s violation of the First Amendment is a bad omen for the future of the separation of church and state. By allowing religious institutions VIP access to the executive branch, Trump allows said institutions to influence the implementation of policy in such a way that further undermines the separation of church and state. For example, a Catholic church that is invited to a WHFO meeting to discuss grant allocations could influence the President to provide greater funds to localities or municipalities with a high number of Catholic churches or organizations. These funds would increase the influence of these bodies, making it easier for them to gain more access to the WHFO and repeat the cycle. Clearly, the involvement of religious bodies within the executive is a slippery slope that undermines the storied independence of the state from religion.

There have been other challenges to the Establishment Clause throughout recent years that, when combined with the WHFO, could severely disrupt the separation of church and state. For example, in March of 2017, President Trump in his first term ordered a travel ban on immigrants from predominantly Muslim nations. [8] This executive order was a staunch attack on the separation of church and state, as the barring of certain religious groups from entry to the US effectively promoted the establishment of others. While President Biden undid this executive order, the arrival of President Trump, now in his second term, opens the door to its potential return. [9] Additionally, on January 24th, 2025, the Supreme Court agreed to hear a case in Oklahoma regarding the legality of withholding state funds to religious charter schools. [10] Even considering this case suggests the possibility of publicly funding a religious charter school, which completely intermingles the state with religion, as tax dollars fund religious teachings, a scenario reminiscent of landmark Supreme Court case Engel v. Vitale, holding that prayer in a publicly-funded school is unconstitutional. [11]

These challenges, when combined with the government access given to faith-based institutions by the WHFO, raise serious concerns about the fate of government independence from religion. Continued attacks to this principle cause it to erode over time, allowing our nation to crumble into theocracy. 

Additionally, the President’s rhetoric surrounding the establishment of the WHFO suggests a continuing issue of Christian persecution, which can be dangerous for religious pluralism in America. Prior to the issuing of the executive order, President Trump remarked that he wished to “root out ‘anti-Christian biases’”. [12] The President has consistently advocated Christian lifestyles to his constituents and, paired with the establishment of the WHFO, ordered the creation of a task force, led by Attorney General Pam Bondi to investigate anti-Christian persecution. [13] While the Trump administration propagates that anti-Christian persecution is a serious problem, this is far from the truth. In 2023, the Organization for Security and Cooperation in Europe Office for Democratic Institutions and Human Rights Hate Crime Report found 2833 hate crimes in America motivated by religion or belief, with only 290 of them being strictly anti-Christian. In comparison, there were 2006 hate crimes targeting the Jewish population, seven times those targeting Christians. [14]

This disparity between the Trump administration’s beliefs and reality is incredibly dangerous. Matthew Taylor, a scholar at the Institute for Islamic, Christian, and Jewish Studies, argues that a majority such as Christians claiming to suffer intense persecution can become an excuse for them to target religious minorities. [15] President Trump’s statistically inaccurate concern towards anti-Christian persecution could become dangerous for religious minorities, as it could allow Trump to cement a Christian-dominated power structure. While the WHFO and similar organizations serve to erode the separation of church and state legally, this rhetoric erodes it socially. As a society begins to fear anti-Christian persecution and attack religious minorities, it associates a state more and more with Christianity, eroding social concepts of the separation of church and state.

The White House Faith Office and the President’s rhetoric surrounding its creation and purpose are incredibly dangerous to America’s legal tradition of the separation of religion and government. If left unchecked, Trump’s actions may provide an avenue for the persecution of religious minorities and, over time, a shift towards theocracy.

Notes:

1. “Establishment of the White House Faith Office,” Whitehouse.gov, February 7, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/establishment-of-the-white-house-faith-office/.

2. Exec. Order No. 13498, 3 C.F.R. 6533 (2009).

3. Hein v. Freedom from Religion Foundation, 551 U.S. 587 (2007)

4. Freedom From Religion Foundation v. McCallum, 179 F. Supp. 2d 950 (W.D. Wis. 2002)

5. “Establishment of the White House Faith Office”

6. U.S. Const. amend. I.

7. Lemon v. Kurtzman, 403 U.S. 602 (1971)

8. “Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” Trump White House Archives, March 6, 2017, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/. 

9. Joseph R. Biden, Jr., Proclamation 10141—Ending Discriminatory Bans on Entry to the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/347812 

10. John Fritze, “Supreme Court to Weigh Constitutionality of Nation’s First Religious Charter School,” CNN, January 24, 2025, https://www.cnn.com/2025/01/24/politics/supreme-court-charter-school-religion-funding/.

11. Engel v. Vitale, 370 U.S. 421 (1962).

12. Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office,” PBS, February 7, 2025, https://www.pbs.org/newshour/politics/watch-live-trump-signs-executive-orders-related-to-faith-announcement.

13. Ibid.

14. “United States of America,” OSCE ODIHR Hate Crime Report, 2023, https://hatecrime.osce.org/united-states-america?year=2023. 

15. Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office.”

Bibliography:

“Establishment of the White House Faith Office,” Whitehouse.gov, February 7, 2025, https://www.whitehouse.gov/presidential-actions/2025/02/establishment-of-the-white-house-faith-office/.

“Executive Order Protecting The Nation From Foreign Terrorist Entry Into The United States,” Trump White House Archives, March 6, 2017, https://trumpwhitehouse.archives.gov/presidential-actions/executive-order-protecting-nation-foreign-terrorist-entry-united-states-2/. 

John Fritze, “Supreme Court to Weigh Constitutionality of Nation’s First Religious Charter School,” CNN, January 24, 2025, https://www.cnn.com/2025/01/24/politics/supreme-court-charter-school-religion-funding/.

Emma Green, “White Evangelicals Believe They Face More Discrimination Than Muslims,” The Atlantic, March 10, 2017, https://www.theatlantic.com/politics/archive/2017/03/perceptions-discrimination-muslims-christians/519135/.

Aamer Madhani and Peter Smith, “Trump Signs Executive Order to Establish a White House Faith Office,” PBS, February 7, 2025, https://www.pbs.org/newshour/politics/watch-live-trump-signs-executive-orders-related-to-faith-announcement.

“United States of America,” OSCE ODIHR Hate Crime Report, 2023, https://hatecrime.osce.org/united-states-america?year=2023. 

Joseph R. Biden, Jr., Proclamation 10141—Ending Discriminatory Bans on Entry to the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project https://www.presidency.ucsb.edu/node/347812