MAY 1, 2025 — On Wednesday, the Supreme Court heard oral arguments in two consolidated cases from Oklahoma which starkly present the clash between the First Amendment’s Free Exercise Clause and its Establishment Clause.
The first Clause says that the government can’t penalize or interfere with the free exercise of religion; the second says that the government can’t favor or “establish” religion.
The two Clauses clash when, for example, a government program offers funding for a given purpose and a church applies to participate in the program — government funding to help the church would seem to be outlawed by the Establishment Clause, but denying it would seem to infringe the Free Exercise Clause by penalizing the church for being religious.
Church Executive has been following this clash in a series of articles on Supreme Court decisions handed down during the last 10 years, starting with the Trinity Lutheran case in 2016 and then Espinoza v. Montana Department of Revenue in 2020 and running through the Carson v. Makin case in 2022 and now the two Oklahoma cases.
This string of cases has shown a clear trend by the so-called “conservative majority” of Justices (now numbering 6 out of the 9 Justices) to strike down any government action that denies churches and church affiliates (including church schools) the right to participate in government programs on an equal footing with non-religious organizations, even if that participation tends to support or “establish” religion. Thus, when a Missouri program offered financial support for rehabilitating school playgrounds, the Court in Trinity Lutheran held that a church school had to be allowed to participate on the same basis as non-religious schools. And when Maine offered vouchers to pay for attending private high schools when public high schools weren’t nearby, the Court in Carson v. Makin said that those vouchers could not be denied to students wanting to attend a parochial school. Now, the two Oklahoma cases just argued are asking the Court to decide if a parochial school can be denied the opportunity to be funded as a charter school, even when the school goes out of its way to stress that its curriculum will be extensively infused with Catholic doctrine.
The opinions written in the cases to date (and each case spawned multiple opinions) show a conspicuous hardening of the rhetoric as the Supreme Court majority has become more and more confident in saying that no government program or action can penalize an organization or individual for being religious, Establishment Clause be damned. This trend is exemplified by a 2022 case (Kennedy v. Bremerton School District) when the 6-3 majority held that a high school football coach could not be disciplined for praying on the 50-yard line after a game.
The Oklahoma cases just argued tee up this head-on conflict between the Free Exercise Clause and the Establishment Clause in the context of school funding, with the record in the cases emphasizing that the religious school seeking charter school status and funding will “fully embrace” Catholic teachings in its curriculum. In other words and cutting to the chase, the core issue in these cases is whether public funds can be used to teach religion; no underbrush to wade through about whether the funds are really supporting religion or are supporting a worthwhile activity that just happens to wear a religious mantle.
Many of the talking heads are saying there is no way the majority can duck the issue and do anything other than stick to their guns and require Oklahoma to include parochial schools in its charter school program and receive direct grants of taxpayer funds to teach religion. Some of those talking heads think the questions and comments from the Justices during Wednesday’s oral argument showed that the Free Exercise Clause will win the day — again — and definitively override the Establishment Clause once and for all. Maybe there is some technicality or nuance the Court will find to get around the core issue (like whether a charter school under Oklahoma law is a de facto “public” school — if that makes a difference).
Also, Justice Barrett has recused herself from the cases, meaning that there is at least some chance one vote could be peeled away from the conservative majority to end up with a 4-4 tie vote (perhaps the Chief Justice’s vote, as he seemed bothered during the oral argument about the prospect of Oklahoma’s ”comprehensive involvement” in religious education). However, the chances seem good that the Court’s decision in late June or early July will firmly tip the balance in favor of the Free Exercise Clause/against the Establishment Clause and allow public programs and funding to support churches and church schools on the same basis as non-religious organizations, no exceptions.
As usual, Amy Howe at ScotusBlog has written a helpful summary of the Oklahoma cases and issues and her take on the oral argument, and Church Executive will do a follow-up when the Supreme Court’s decision is handed down this Summer. Inevitably, a decision which declares that the St. Isidore virtual school must be allowed to participate in the Oklahoma charter school program will stir up questions about what else will be coming down the pike, with pundits asking when school prayer in the classroom will show up on the Court’s docket.
We’ve said it before, stay posted! This trend is of immense importance to many of Church Executive’s readers as they face budget pressures and wonder if they can find some help in federal, state and local programs which historically have been thought to be unavailable to parochial schools and other religious institutions.
— The Editors
