By John Kruzel
WASHINGTON (Reuters) -The U.S. Supreme Court in a trio of rulings expected in the coming weeks appears inclined to extend its trend of taking an expansive view of religious rights while potentially dealing a sharp blow to the principle of separation of church and state.
During arguments in the cases, a majority of the justices appeared sympathetic toward a bid to create the nation’s first taxpayer-funded religious charter school in Oklahoma, a push for religious exemptions from a Wisconsin unemployment insurance tax and a request by religious parents of students in a Maryland county for an opt-out from classroom storybooks with LGBT characters.
President Donald Trump’s administration sided with the religious claimants in all three cases.
The rulings, expected by the end of June, promise to offer fresh insight about how the court, with its 6-3 conservative majority, views the two religion clauses of the U.S. Constitution’s First Amendment. Its “establishment clause” prohibits the government from establishing or endorsing any particular religion or promoting religion over nonreligion. Its “free exercise” clause protects the right to practice one’s religion freely, without government interference.
University of Illinois Chicago law professor Steve Schwinn said he expects the rulings will continue the court’s years-long trend of sharply limiting the application of the establishment clause and dramatically expanding the application of the free exercise clause.
The net result of such prior decisions, Schwinn said, is that “the religion clauses today invite and in some cases even require religion to play an increasing role in public institutions, public programs and public life.”
“Given that this term tees up three significant cases on the religion clauses, all in a similar spirit, the impact of the trio could be quite substantial,” Schwinn added.
Notre Dame Law School professor Richard Garnett, who has supported the religious claimants in the three cases, described the court’s trend over the past few decades as having “rejected an interpretation of the Constitution that would exclude religion from public life or prevent reasonable cooperation and accommodation.”
CATHOLIC CHARTER SCHOOL
The highest-profile case of the three involves a bid led by two Catholic dioceses to establish in Oklahoma the first taxpayer-funded religious charter school in the United States. The proposed St. Isidore of Seville Catholic Virtual School and the state charter school board appealed a ruling by Oklahoma’s Supreme Court that blocked the plan.
Charter schools, considered public schools under Oklahoma law, draw funding from the state government. Established as alternatives to traditional public schools, charter schools typically operate under private management and often feature small class sizes, innovative teaching styles or a particular academic focus.
Oklahoma’s top court ruled that the proposed school ran afoul of the establishment clause and would be acting as “a surrogate of the state.”
St. Isidore’s organizers argued that Oklahoma’s refusal to establish it as a charter school solely because it is religious is discrimination under the free exercise clause, and said the Oklahoma court erred by deeming it an arm of the government rather than a private entity.
Oklahoma’s Republican Attorney General Gentner Drummond sued to challenge St. Isidore’s establishment.
During April 30 arguments in the case, the conservative justices signaled sympathy toward St. Isidore while some of the court’s liberal justices posed sharp questions about why the proposed school would not violate constitutional limits on governmental involvement in religion.
“I’m just trying to understand your establishment clause ‘nothing to see here’ position,” Justice Ketanji Brown Jackson told U.S. Solicitor General D. John Sauer, arguing for the Trump administration.
“Are you saying that the religious charter school’s use of public funds to support proselytization, which the school says it intends to do, is not an establishment clause problem?” Jackson asked.
Sauer said the establishment clause is not violated when parents get to decide whether to send their children to religious or non-religious schools.
“Here, the parents are choosing with open eyes to take their kid to the religious charter school,” Sauer said.
SHIFTING APPROACH
Erwin Chemerinsky, dean of the University of California Berkeley School of Law, said that recent decisions involving public aid to religious schools reflect a major shift in how the court has approached the First Amendment religion clauses.
In 2022, the court ruled in favor of two Christian families in their challenge to Maine’s tuition-assistance program that had excluded private religious schools. In 2020, it endorsed Montana tax credits that helped pay for students to attend private religious schools, ruling in favor of three mothers of Christian school students.
Those decisions followed the court’s 2017 ruling in favor of Trinity Lutheran Church of Columbia, Missouri, that declared that churches and other religious entities cannot be flatly denied public money based on their religious status – even in states whose constitutions explicitly ban such funding.
“For decades the establishment clause was seen as a limit on aid to religious schools,” Chemerinsky said. “Now, the free exercise clause is creating a right of religious schools to receive aid.”
“The Oklahoma charter school case is exactly about this: not whether it violates the establishment clause for the government to support religious charter schools, but whether the free exercise clause requires that the government do so,” said Chemerinsky, who joined a court brief opposing the religious charter school’s legal position.
Thomas Berg, a law professor at the University of St. Thomas in Minnesota, said the Oklahoma case could have a major impact on the establishment clause if the court rules that “a substantial number of charters (charter schools) are private actors, not state actors, and thus are not subject to the establishment clause.”
The First Amendment generally constrains the government but not private entities.
Opponents have said religious charter schools would force taxpayers to support religious indoctrination and undermine workplace nondiscrimination principles because these schools might seek to bar employees who do not adhere to doctrinal teachings.
OPT-OUTS AND TAX EXEMPTIONS
The court is also weighing a bid by Christian and Muslim parents to keep their children out of certain public elementary school classes in Maryland’s Montgomery County when storybooks with LGBT characters are read.
The justices during April 22 arguments appeared inclined to rule in favor of the plaintiffs after lower courts declined to order the school district to let children opt out when these books are read.
The parents contend that the school board’s policy of prohibiting opt-outs violates the free exercise clause. The case did not directly implicate the establishment clause.
The court’s liberal justices raised concerns about how far opt-outs for students could go beyond storybooks in public schools, offering examples of subjects that might come up in classes such as evolution, interracial marriage or women working outside the home.
The Wisconsin case involves a bid by an arm of the Catholic diocese in the city of Superior for a religious exemption from the state’s unemployment insurance tax. The court appeared sympathetic during March 31 arguments to an appeal by the Catholic Charities Bureau – a nonprofit corporation operating as the diocese’s social ministry arm – and four entities that the bureau oversees of a lower court’s decision rejecting their tax exemption bid.
The federal government and all states exempt certain religious entities from paying into unemployment insurance programs that benefit eligible jobless workers, as other employers generally are required to do. Most of these laws, including Wisconsin’s, require that organizations be “operated primarily for religious purposes” for religious exemption eligibility.
In rejecting the tax exemption, Wisconsin’s top court found that although the groups “assert a religious motivation behind their work,” their activities were “primarily charitable and secular,” not “operated primarily for religious purposes.”
At issue was whether Wisconsin’s denial of the tax exemption violated both religion clauses.
Berg, who joined legal briefs favoring the Maryland parents and Wisconsin Catholic Charities Bureau, said the impact of the court’s rulings in these cases depends on their scope.
“Carefully, narrowly reasoned wins would continue the court’s recent emphasis that religious exercise, although not the only right, is a constitutionally important one,” Berg said. “But less careful, broadly reasoned religious wins could upset the balance.”
(Reporting by John Kruzel; Editing by Will Dunham)
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