A Supreme Court Case Threatens the Church-State Divide

Opinion|This Case About One Religious School Is a Case About the Country’s Future

While the country holds its breath for the Supreme Court’s responses to the Trump administration’s serial depredations, it’s hard to focus on anything else. Nonetheless, a case set for argument next month before the court merits more attention than the little it has received, given its destabilizing potential for public education. The central question is whether a state that allows charter schools as alternatives to traditional public schools, as nearly all states do, must agree to fund those that are explicitly religious.

To emphasize: The court is not being asked to decide whether a state may, if it chooses, include a taxpayer-funded parochial school among its charter school offerings. That question alone would challenge the long-held understanding of the separation of church and state in the context of public education. This case goes further. It concerns what would be the first fully taxpayer-supported religious school in modern American history. The internet-based “virtual” Catholic school that the Archdiocese of Oklahoma City and the Diocese of Tulsa seek to operate, St. Isidore of Seville Catholic Virtual School, would promote the “evangelizing mission of the Church.” The question is whether the Constitution requires Oklahoma to permit the school to open its virtual doors as a public charter school.

This is far from the first collision between the two religion clauses of the First Amendment, the protection for the “free exercise” of religion and the prohibition against religion’s official “establishment.” But this case reaches the court at a time of rapid change in the justices’ treatment of the relationship between the two clauses. Not so long ago, the Supreme Court was willing and able to manage the inherent tension between the two clauses by giving weight to each.

For example, the question in a 2004 case was the constitutionality of a state’s explicit exclusion of ministerial studies from eligibility for an otherwise widely available state scholarship program. A student who wanted to use the scholarship to study for the ministry argued that his inability to do so violated the Free Exercise Clause. The court rejected that argument, holding that while the Establishment Clause would have permitted the state to subsidize ministerial training if it chose, the Free Exercise Clause did not impose such a requirement.

In rejecting the argument that the state had imposed a burden on the free exercise of religion, the court said the state was not penalizing or criminalizing a religious service or rite, prohibiting ministers from participating in a community’s affairs or requiring students to choose between their religious beliefs and receiving a government benefit. Instead, the court said, “the state has merely chosen not to fund a distinct category of instruction,” which it said was a legitimate interest of the state in preventing an establishment of religion.

The court’s goal was to maintain “play in the joints” between the two clauses that frequently were in tension with each other, Chief Justice William Rehnquist wrote in the majority opinion in Locke v. Davey.