The Supreme Court is taking a wrecking ball to the wall between church and state
Story by Ian Millhiser, VOX, 8/13/23
Last June, a previously obscure Oklahoma state board voted to allow two Roman Catholic dioceses to operate a charter school in that state. Lawyers from several civil rights organizations, including the ACLU, responded just over a month later with a lawsuit alleging that this state-funded religious school violates the state constitution.
This challenge to the religious charter school, known as St. Isidore of Seville Catholic Virtual School, should be a slam-dunk — at least assuming that the allegations in the lawsuit are correct.
Charter schools are public entities funded by state tax revenue. Among other things, the complaint points to a provision of the Oklahoma Constitution which provides that public education funds may not be “used for any other purpose than the support and maintenance of common schools for the equal benefit of all the people of the State.” And several school policies described in the complaint indicate that St. Isidore does not intend to operate for the equal benefit of all students.
According to the lawsuit, the Archdiocese of Oklahoma City, one of the two dioceses that plans to operate this school, has a policy of expelling students who “intentionally or knowingly” express “disagreement with Catholic faith and morals.” This includes a rule that “‘advocating for, or expressing same-sex attractions … is not permitted’ for students,” and also a rule providing that a student who “reject[s] his or her own body” by beginning a gender transition “will be ‘choosing not to remain enrolled.’”
Yet the most striking thing about this legal complaint is what it does not say. The lawsuit states explicitly that “the plaintiffs’ claims for relief are brought solely under the state constitution, state statutes, and state regulations.” It does not even mention the federal Constitution’s First Amendment, with its prohibition on laws “respecting an establishment of religion.” Before a series of recent Supreme Court decisions carved up this establishment clause, a lawyer challenging government funding of religion almost certainly would have raised some claim under this clause.
(In response to my inquiry about the decision not to include an establishment clause claim in the Oklahoma lawsuit, Heather Weaver, a lawyer with the ACLU, said that “Oklahoma law provides robust protections for the separation of church and state and the fundamental principle that public schools must be open to all students, regardless of a student’s LGBTQ status, faith, disability, or other characteristics. Oklahoma law also gives taxpayers broad rights to challenge violations of these protections, so it made sense for us to file in state court with a focus on state law.”)
This establishment clause was long understood to require strict separation of church and state — and specifically to forbid using public funds to pay for religious instruction. As the Supreme Court said in Everson v. Board of Education (1947), “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
But those days are long past. Indeed, under the current Court’s decision in Carson v. Makin (2022), it’s not even clear that Oklahoma may refuse to fund charter schools that are operated by a church, that seek to train students in that church’s values, and that actively discriminate against individuals the church deems sinful.
Carson held that Maine, which provided private school tuition vouchers to students in rural areas, must allow students to use these vouchers at religious schools. Private schools are, of course, private — meaning that they are not part of the state government even if they receive some funding from the state. So Carson does not, on its face, apply to charter schools — which are public schools even if they are often managed by a private institution. (Some advocates have claimed that charter schools should legally be classified as private schools — an argument that has fairly obvious implications for religious charter schools under Carson.)
But the Court’s Republican-appointed majority has relentlessly moved to shrink the establishment clause, and to expand the rights of religious conservatives more broadly. Oklahoma’s decision to authorize an explicitly religious charter school reads like the next incremental step in a broader legal campaign to eliminate the establishment clause’s restrictions on public schools altogether. And it is far from clear where this Supreme Court will draw the line and say that there are limits to the government’s ability to promote religion.
What is the establishment clause for?
The establishment clause provides simply that there can be no law “respecting an establishment of religion.” It does not explain what an “establishment of religion” is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism — something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.
Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, “individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.”
To be sure, this holding had limits. While Everson forbade taxation used specifically “to support” religion, it also recognized the government must provide some services to religious institutions. The government may still provide “police and fire protection, connections for sewage disposal, public highways and sidewalks” and the like to churches, for example, so long as these services are provided to religious institutions on the same terms that they are provided to everyone else.
The idea was that the state had to be “neutral in its relations with groups of religious believers and non-believers.” It could provide a religious institution with the same services it would provide to anyone else. But, if the government taxed, say, a Buddhist to pay for Jewish education, then that would violate the establishment clause because it effectively coerced that Buddhist into paying for another person’s religion.
Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.
In Engel, the Court struck down a school district’s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Black warned, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.
The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.
Of course, these two theories of the establishment clause are not mutually exclusive — how else could both Everson and Engel have been written by the same justice?
But the last seven decades or so of establishment clause jurisprudence has largely been a fight over whether the Court should accept one or both of these theories — and just what it means to coerce religious belief or to pick favorites among faiths.
The current Court has abandoned any concerns about pluralism and defined “coercion” very narrowly
Over time, Engel’s concerns about ensuring that the government does not favor one religion over another evolved into a ban on government “endorsement” of a particular religious viewpoint. The Court held in Allegheny County v. ACLU (1989) that the prohibition against governmental endorsement of religion “preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred.”
As Justice Sandra Day O’Connor wrote in an influential 1984 concurring opinion, government endorsements of religion undercut the pluralistic idea that all citizens enjoy equal political standing. They tell “nonadherents that they are outsiders, not full members of the political community” while simultaneously telling “adherents that they are insiders, favored members of the political community.”
Similarly, in Lee v. Weisman (1992), the Court held that the establishment clause’s prohibition on coercion extends not just straightforward attempts to force a nonbeliever to participate in religion — such as if the government were to arrest or fine anyone who does not attend a church service. It also applies to more subtle forms of coercion, including the use of social pressure to encourage acts of faith.
In Lee, a public school invited a rabbi to deliver a prayer at a graduation ceremony. This, Justice Anthony Kennedy wrote for the Court, is not allowed.
“The undeniable fact,” Kennedy explained, “is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.” Such pressure, “though subtle and indirect, can be as real as any overt compulsion,” as it leaves a young nonadherent with “a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow.”
Thus, before the Roberts Court started dismantling the establishment clause’s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person’s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.
All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).
Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case’s facts. It involved a high school football coach who would pray at the 50-yard line following games — in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor’s dissent.
Yet Justice Neil Gorsuch, who wrote the Court’s opinion, falsely claimed that this coach only wanted to offer a “short, private, personal prayer.”
Because Gorsuch lied about the facts of this case, it’s hard to pinpoint exactly what Bremerton held. No one questions that a public school employee may say private prayers while they are on the job. The question the Court was supposed to answer in Bremerton is whether a representative of the government may, during a public event, ostentatiously convey a religious message to hundreds or thousands of spectators — including potentially players who are under that government employee’s direct authority.
One thing that is clear, however, is that the ban on government endorsements of religion will no longer be enforced by this Court’s GOP-appointed majority. Instead of applying “the endorsement test,” Gorsuch wrote, “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”
And what, exactly, are those “historical practices and understandings?” Gorsuch does concede that “government may not, consistent with a historically sensitive understanding of the Establishment Clause, ‘make a religious observance compulsory.’” But his opinion suggests that the clause may do nothing else.
Among other things, Gorsuch cites favorably to Justice Antonin Scalia’s dissent in Lee, which described Justice Kennedy’s concerns about subtle pressure on public school students as “precious,” and which declares outright that “the coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.” Gorsuch also quotes James Madison, claiming that Madison understood the First Amendment “to prevent one or multiple sects from ‘establish[ing] a religion to which they would compel others to conform.’”
So, while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion — the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States — is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of “coercion.” There may even be five votes for Scalia’s position — that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.
The Court’s GOP-appointed majority has even ruled that the Constitution requires the government to fund religion
One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever — taxes that the nonbeliever must pay to avoid criminal sanctions — and use them to fund religious education.
Indeed, the government has been allowed to fund religious education with tax money for quite some time. In Zelman v. Simmons-Harris (2002), a 5–4 Court abandoned Everson’s strict rule against government funding of religion. That said, Zelman merely held that states could offer tuition vouchers that fund private religious education if they chose to do so. Nothing in Zelman prohibited states from maintaining a neutral posture on religion — one where the state government allows private schools to teach whatever religious lessons they choose, but where the state also refuses to fund those lessons at the taxpayer’s expense.
The Roberts Court’s biggest innovation on public funding of religion came in Carson, the case about Maine’s private school vouchers program. As the Court described this program, it allowed families in sparsely populated areas, areas where the state determined that it was not practical to operate a traditional public school, to receive vouchers that would pay up to a certain amount of tuition “at the public school or the approved private school of the parent’s choice at which the student is accepted.”
Before Carson, however, these vouchers could only be used at “nonsectarian schools.” Maine decided, exercising the choice the Court left to it in Zelman, not to fund schools that promote a “faith or belief system” or that “presents the material taught through the lens of this faith.”
In ordering Maine to fund religious education, Carson reached two somewhat conflicting conclusions. The first is that the sort of neutral posture toward religion permitted by Zelman is now unconstitutional. Maine’s program, Chief Justice John Roberts wrote for his Court, “pays tuition for certain students at private schools — so long as the schools are not religious.” That, he claimed, “is discrimination against religion.”
At the same time, Carson still permits a state to “provide a strictly secular education in its public schools.” And it also “need not subsidize private education.” But, once a state decides to fund private schools, “it cannot disqualify some private schools solely because they are religious.”
Roberts’s explanation for this distinction is grounded somewhat in the rule against coercion. He emphasized that, under Carson, “public funds flow to religious organizations through the independent choices of private benefit recipients,” and that any parent whose child winds up in a religious school will do so only because of that parent’s “choice.”
By contrast, if a state only offered a public education to its students, and then taught religion in those schools, that would mean that parents would have no choice but to send their children to a school where they will be religiously indoctrinated. Such a regime would probably violate even the Roberts Court’s understanding of the establishment clause because it would effectively coerce schoolchildren into attending religious classes.
Carson, however, shows no regard for an entirely different kind of coercion. By ordering Maine to fund religious education, even only within the context of its rural vouchers program, the Court coerces Maine’s taxpayers into funding religious education. And the Court apparently found this kind of coercion completely unobjectionable.
So what are the Roberts Court’s limits on government programs that advance religion?
Read together, the Roberts Court’s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.
One category of establishment clause cases that I have not yet discussed is cases involving symbolic endorsements of religion. Think about cases where the government installs a giant Ten Commandments monument in the middle of a courthouse or builds a cross on public land.
The Court’s previous decisions governing such monuments are nuanced — a short summary is that government displays of religious symbols are sometimes allowed and sometimes not allowed. But it is far from clear whether, under the current Court, any religious display whatsoever will be struck down. After all, the best argument against allowing the government to build a giant cross on the front lawn of the White House is that doing so would endorse Christianity. But Bremerton held that the ban on government endorsements of religion is dead.
That leaves the rule against coercion, which does still seem to have a little life left in it. Even Gorsuch appears to concede, for example, that the government may not send the police to arrest someone who refuses to attend a Catholic mass or fine a Lutheran who refuses to convert to evangelical Christianity.
But it is not at all clear whether the ban on coercion extends very far beyond cases involving the “force of law and threat of penalty” that Scalia denounced in his Lee dissent. Because Bremerton decided a fake case and did not actually engage with the question of whether a public school coach may ostentatiously perform their religious identity in front of the school community, we don’t yet know for sure whether the Court will allow government employees who wield authority over children to use that authority to pressure those children to embrace Christianity.
But the fact that the six justices who joined the Bremerton majority couldn’t even be honest about the facts of that case should not give hope to anyone who fears that teachers or coaches may use their government jobs to proselytize to their students. If nothing else, Bremerton shows that this Court will not be judicious in policing the line between private religious acts by government employees, which are emphatically permitted under the Constitution, and attempts by government officials to convert others to Christianity while the official is on the job.
And then there’s the school funding cases and other cases where a religious group sues to receive government funds. Carson held that private school voucher programs must fund religious education. And it also held that traditional public schools may elect to only teach secular material. But what about charter schools like Oklahoma’s St. Isidore?
It remains to be seen how the courts will handle that case, but St. Isidore has a strong argument that it is entitled not only to receive government funds, but that it is also entitled to set up a religious school that is part of the Oklahoma government. Or, to put it another way, if Carson extends to charter schools and not just to private school voucher programs, then the 45 states with charter school programs all must include religious schools that otherwise qualify to participate in those programs.
Because Carson placed so much emphasis on whether a government-funded religious school allows parents to choose whether to send their children to that school, there’s a fairly high likelihood that the Supreme Court will, indeed, extend Carson to apply to charter schools. That’s because charter schools, like private schools, typically do not compel any parent to send a child there.
In the long run, advocates of private school vouchers and charter schools may come to regret the Carson decision. By forcing states to choose between either having a single, unitary public school system, or having government-funded private and charter schools that teach religious views many citizens may find objectionable, Carson places secularly minded states in a difficult position. If those states don’t want to fund schools like St. Isidore, or other religious schools that may teach that LGBTQ people are immoral, Carson suggests that they must eliminate any programs funding private schools or publicly funded charter schools altogether.
Nevertheless, the Court’s Republican-appointed majority appears as unconcerned with this problem as it is with the problem of taxing secular citizens to pay for religious education.
The future of religion in the United States, in other words, is unlikely to involve police officers breaking into people’s homes to arrest them for skipping church. But it is likely to include far more government funding of religious activity, far more proselytizing by teachers, coaches, and other government officials who wield authority over children, and many more monuments to Christianity — all paid for by your taxes.