The Supreme Court has often “safeguard[ed] a principle at the heart of the Establishment Clause, that government should not prefer one religion to another, or religion to irreligion.” Under the First Amendment to the U.S. Constitution, we shall have “no law respecting an establishment of religion.”
The Framers understood that religious governments are dangerous. They remembered, as we should, that the Wars of Religion brought death and destruction to the European nations. The Framers brilliantly set up a constitution that would not allow religions such power.
That means that the Constitution itself discriminates against religion. Which is smart. Combining the power of church and state undermines individual rights.
We know that from the history of Oklahoma. That state mentioned in its brief, which it argued before the Supreme Court on Wednesday, that in the past, the state funded religious schools—Catholic, Episcopalian, and Presbyterian. State and church worked together. The state tries to make that sound good.
History tells another story. Why did church and state combine there? The goal was to undermine Native culture and civilization so that Natives would abandon their culture and instead act like Christians. Oklahoma had more federally-funded Indian boarding schools than any other state.
On Wednesday, Oklahoma was in the Supreme Court arguing that its state Catholic charter public school is consistent with the Establishment Clause and its history. An amicus brief in this case by Baptists, Rabbis, Lutherans, the United Church of Christ, an Interfaith group, Episcopalians, Muslims, Jewish women and Reform Judaism says favoring Catholic public schools harms religious minorities and they lose all their power while Catholicism gets established.
Please, Court, just say no.
Some of the Justices Sounded Pro-Establishment Clause
Especially Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
Justice Sotomayor asked the smart question what the state would do with a charter school that would not teach evolution or slavery because it was against their faith. Justice Kagan wondered what would happen to a school that wanted to teach only members of its faith and not others.
Justice Sotomayor noted that “the essence of the Establishment Clause is that we’re not going to support people –lay lead—religious leaders in teaching their religion.” When she asked the school’s lawyer if he “accept[ed] that proposition,” the school’s lawyer said no.
Justice Sotomayor, aware of the history, asked, “If we pick and choose, as we did in one part of our history, only Catholic schools to teach Indian children so they can become Catholics, would that violate the Establishment Clause?” She used that questioning to make the point that the Catholic schools would teach only the Catholic religion. She then asked the lawyer if he meant that the Free Exercise Clause trumps the Establishment Clause.
That’s what this case is all about.
Justice Jackson came up with a way to distinguish the Court’s recent cases, which are definitely anti-Establishment Clause. She said Fulton, Trinity Lutheran, Espinoza, and Carson were different from the Oklahoma Catholic school. They involved items that the state was giving to people—adoption, playgrounds, tax credits, and student aid—so they could not discriminate against religion. The religious and non-religious had to be treated the same.
That is not the case here, because the Catholic school was not asking for the same thing everyone else could get, which was to be a secular public school. Instead, the Catholics wanted to be a publicly funded school while keeping all their Catholic characteristics. You can’t ask to be a public school and then say you will be one only if you are not treated like any other charter school because you get to be Catholic. “It’s being denied a benefit that no one else gets, which is the ability to establish a religious public school,” said Justice Jackson. “What they want to do is come in and get a contract that is tailored to their own terms that includes religious education, and the State says that’s not the benefit that we’re offering here. So you’re actually not in Trinity Lutheran world, I think.”
Justice Kagan got the lawyers to explain just how Catholic these schools are. The Catholics modified the contract that other schools get. Justice Jackson added to that: “if you’re striking out provisions of the contract, then it seems to me that you are not seeking the same public benefit that everyone else is getting.”
The contract between Oklahoma and the Catholic schools protects church autonomy. One school lawyer said, “What was added to the contract is the essentially constitutional truism that as a private religious organization, we possess rights under the Free Exercise Clause, the church autonomy doctrine, the ministerial exception, which this Court has rooted in the church autonomy doctrine. And so all that we were trying to make clear and all the State was recognizing is that we were not giving away those rights by virtue of agreeing to this contract.”
That is a Catholic school. No question. Church autonomy means the churches do not have to follow the law. The ministerial exception proves that. It exempts every “minister”—ruled in the most recent Supreme Court case to include Catholic schoolteachers—from any and every antidiscrimination law there is, state and federal. Justice Jackson is right. The Catholics are not asking for what everyone else wants. They want to be the combined church-government school that sets its own rules and captures everyone to its message.
Justice Kagan added, “[t]here’s a big incentive to operating charter schools since everything is funded for you.”
The State’s Lawyer
The schools had three lawyers: James A. Campbell and Michael H. McGinley for the schools; they were joined by D. John Sauer, who is the Solicitor General of the United States. One lawyer, a former Solicitor General, Gregory Garre, defended the state.
Garre kept repeating a brilliant point that is worth repeating here: “teaching religion as truth in public schools is not allowed.”
That should say enough for everyone.
Leaning Toward the Catholic School?
Chief Justice John Roberts asked how Sauer would distinguish the Court’s earlier cases, mentioned above, from this one. He also asked if there was “too much state involvement” to treat the Catholic schools a private charter schools.
Justice Brett Kavanaugh worried that a pro-schools decision would undermine “religiously operated senior homes or food banks or foster care agencies or adoption agencies or homeless shelters,” which receive government funding. Justice Neil Gorsuch asked for a line that could distinguish the schools from the other entities, like Catholic Social Services, the group that won the Fulton free exercise adoption case.
Garre kind of humorously said Fulton in no way imposed new requirements on the public schools.
Justice Kavanaugh raised the discrimination point, noting that a program that is open to “all comers except religion” seems like “rank discrimination”: “And also the state can’t favor religion generally over secular counterparts in allowing or approving charter schools as well. In other words, if it has charter schools, it must allow secular and religious, correct?” Sauer agreed.
This might seem like a winning argument, except that, as Justice Jackson noted, the religious schools are not asking for what everyone else is. They are asking for a world in which they are a public school yet follow all of Catholic thought.
Do people really want that? Garre noted that the federal charter schools statute and the laws of 47 states would have to change if the Court ruled that a public school can be religiously sectarian.
And the others?
Justice Samuel Alito argued that the Oklahoma law was a Blaine amendment, which the Court had already rejected as discriminating against religion. And he mentioned the anti-Catholic bigotry that probably motivated the Oklahoma rulings against the church-school.
Justice Clarence Thomas focused on the state action and state actor aspects of the case.
And finally, Justice Amy Coney Barrett is recused from the case.
The Result?
The Justices on the current Supreme Court have wavered in their commitment to establishment, and often they end up protecting religion over individuals’ rights. Might they say in this case, as Justice Sotomayor warned, that the Free Exercise Clause trumps the Establishment Clause? Would they really do it?
I have sixteen years of Catholic education at Catholic schools. I studied and taught Catholic theology at Catholic universities. Catholic schools are places where you are supposed to learn Catholicism, which includes women’s inequality and opposition to contraception, reproductive freedom, abortion, and LGBTQ+ rights. The ministerial exception lets the schools fire everybody except the rare person who does nothing religious…a person who is very hard to find in a religious school.
Seven Justices on the Supreme Court were raised Catholic. Barrett is recused, and Sotomayor is clearly for Oklahoma. Will the remaining five—Roberts, Thomas, Alito, and Kavanaugh, and Gorsuch, who was raised Catholic but is Episcopalian now—vote for the Catholic schools?
We wait to see. I hope the Establishment Clause survives.
