In a nutshell , the Oklahoma program at issue in these two cases allows parochial schools to participate as charter schools and receive direct government grants . The Oklahoma Supreme Court said the program violates the Establishment Clause ( as well as state law ) because public funds cannot be used to directly support religious education . The record in these cases might leave the Supreme Court with very little wiggle room unless the decision goes off on some technical or procedural ground .
In a nutshell , the Oklahoma program at issue in these two cases allows parochial schools to participate as charter schools and receive direct government grants . The Oklahoma Supreme Court said the program violates the Establishment Clause ( as well as state law ) because public funds cannot be used to directly support religious education . The record in these cases might leave the Supreme Court with very little wiggle room unless the decision goes off on some technical or procedural ground .
A few new cases to watch
The Court just agreed to hear a pair of cases in this same line , and they could turn out to be blockbusters if a majority of the Court decides to allow Oklahoma to include parochial schools in its charter school program and receive direct grants . These two cases have been consolidated and fast-tracked by the Court so they will be argued in late April and decided before the end of the Court ’ s current term in June or early July . The talking heads are already saying that these cases could well put the finishing touches on the decline and fall of the Establishment Clause , at least in the context of government aid to religious schools . However , there ’ s a bit of a wrinkle in that Justice Barrett has recused herself from participating in the decision , raising the possibility of a 4-4 stalemate at the Court , which would leave intact the decision by the Oklahoma Supreme Court forbidding parochial schools from participating in the charter school program . The Establishment Clause forbids governments from supporting religion or favoring one religion over another , or religion over nonreligion , and historically courts have struck down government programs which are seen to “ establish ” or favor / help religion . That ’ s the reason school prayer has been disallowed and why direct funding for religious education has been thought to be a non-starter — at least , until recently . At the same time , though , courts have regularly invoked the First Amendment ’ s Free Exercise Clause to prevent government interference with the free exercise of religion , and this concept has been applied to prevent governments from penalizing or discriminating against churches and religious institutions for being religious . That ’ s one of the reasons government programs helping educational institutions haven ’ t been allowed to withhold support from church schools which stand on the same footing as non-religious schools and where the support is for non-religious functions such as pupil busing and lunch programs . There is an obvious tension between the two clauses , particularly in the context of government funding programs where churches look to participate alongside secular institutions : If funds are provided to churches , isn ’ t that exactly the kind of “ establishment ” of religion which the First Amendment prohibits ? But if churches aren ’ t allowed to participate , isn ’ t that penalizing them for being religious and interfering with the free exercise of religion ? For the most part , courts have dealt with this tension by saying that churches have to be allowed to participate in government funding programs on the same basis as secular institutions where the participation doesn ’ t get the government “ too directly ” or “ too closely ” involved in the practice of religion — aha , the weasel words that are
18 CHURCH EXECUTIVE | FEBRUARY 2025