Constitutional tension
The Oklahoma case will go before a Supreme Court that has in recent years rolled back strict, longtime boundaries on government involvement with religious entities.
As a result, the court has been inundated with cases brought by religious groups seeking to dismantle, brick by brick, the “wall” that Jefferson described.
Nowhere is that more apparent than education, where advocates for school choice — who want education funds to follow their children into private, often religious schools — are eager to remove legal obstacles.
In doing so, the court has rejected arguments made by government entities that the establishment clause requires them to stay out of religion altogether.
“The goal is that religion should be left to the private choices of individuals,” said Luke Goodrich, a lawyer at religious rights group Becket. The government “controls so many levers of power” that it is easy for its actions to infringe upon religious liberty, he added.
The current Supreme Court views the establishment clause through a historical lens dating back to the founding, Goodrich said. Then, it had a limited and defined meaning that was aimed at preventing government control over churches and religious exercise and nothing more, he added.
That interpretation is fiercely contested.
“It’s a lie about American history,” Rachel Laser, president of Americans United, said in an interview.
“We are witnessing what it looks like for the establishment clause to be weakened. The sad thing about that is that the establishment clause and free exercise clause work together in healthy tension to protect religious freedom for all,” she added.
The Supreme Court’s conservative majority has been receptive to the arguments made by the likes of Becket and Alliance Defending Freedom (ADF), a conservative Christian group that represents the Oklahoma charter school board in the upcoming case.
In one series of three related cases, the court — with liberal justices often opposed — opened the door to taxpayer money flowing to religious entities, including schools, in certain circumstances. These cases are repeatedly cited by the lawyers defending the Oklahoma school proposal.
The court first ruled in 2017 on a 7-2 vote that a church in Missouri could not be denied access to a state program that helps nonprofit groups fund playground improvements. That was followed by a 5-4 ruling in 2020, citing the earlier decision, that endorsed a Montana program allowing tax credits to be used to help children attend religious schools. Two years later, the court ruled 6-3 that Maine could not exclude religious schools from a tuition assistance program for people living in rural areas that have few educational options.
Marci Hamilton, a professor who studies religion at the University of Pennsylvania, said these rulings were the result of a concerted effort by conservative lawyers and law professors to reinterpret the religion clauses of the First Amendment to focus on the notion that barring religious entities from government programs is a form of discrimination in itself.
“This has been the intent from the beginning, and the idea is that from there on out, any barriers to funding from the government to religion were unfair because they were supposedly discriminatory,” Hamilton said.
The legal arguments arose from legal scholarship, with Stanford Law School professor and former federal judge Michael McConnell being one key figure.
In other cases, the court, with liberal justices often signing on, has also signaled that government officials have sometimes gone too far in seeking to avoid the appearance of endorsing religion under the establishment clause.
Recent rulings included one in 2019 on a 7-2 vote that endorsed a cross-shaped war memorial in Maryland. In a 2022 case, the court ruled 6-3 in favor of a public high school football coach who was suspended for leading Christian prayers with players on the field after games, with the court’s three liberals dissenting. The same year, the court faulted the city of Boston for barring a Christian group from flying a flag at city hall under a program open to groups of all types across the city. The vote was 9-0.
The football coach case was notable because the court disavowed a 1971 precedent that set a test for determining whether government actions violated the establishment clause. Instead, the court embraced a more permissive approach based on whether the challenged conduct is based on historical practices and traditions.
One wrinkle in the Oklahoma case is that Justice Amy Coney Barrett, part of the conservative majority, is not participating. She did not explain why, but it may be because of her ties with Notre Dame Law School, where she was a law professor for many years. She is friends with Garnett, and Notre Dame’s religious liberty clinic is representing the school.
If the court were to split 4-4, the Oklahoma Supreme Court ruling that went against the school would remain in place.
Whatever happens in the Oklahoma case, more religious rights cases touching upon the establishment clause are on the horizon. Litigation is already underway over a law in Louisiana that would require public schools to display the Ten Commandments. A federal judge blocked the measure.
Meanwhile, the Supreme Court will be hearing arguments on April 22 in another case touching upon religion and schools, when it hears a claim brought by parents of elementary school students in Maryland who objected on religious grounds to books available in classrooms that included information about LGBTQ issues.
The justices have also taken up a case, which is being argued on Monday, about whether the religious rights of a Catholic Church-affiliated charitable organization were violated when the state of Wisconsin required it to pay into the state’s unemployment tax system.
What remains unknown is how far the Supreme Court is willing to go in expanding individual religious liberties under the free exercise clause at the expense of the establishment clause.
Individual conservative politicians like Walters and groups like ADF are willing to push as far as they can.
“There is no such thing as a wall,” said John Bursch, one of ADF’s lawyers, referring to Jefferson’s phrasing from his 1802 letter. “My personal hope is that the Supreme Court will recognize there’s no wall there.”
But Bursch said ADF would be “leery of compelled student prayer,” for example. The establishment clause, he added, “does good and important work.”
Notre Dame’s Garnett said a lot of disputes that arise reflect “an outdated understanding of the establishment clause” that the Supreme Court has left behind.
But old habits die hard.
“The wall image, which is not in the Constitution, has powerful cultural resonance even though it wasn’t the right image,” she added.
Americans United’s Laser views the conservative reappraisal of the establishment clause as nothing less than a threat to democracy because it would grant “special power and privilege for a select few.”
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