Church Executive February 2025 | Page 19

cannot be excluded from the program without violating the Free Exercise Clause when those schools are asking to participate on the same basis as non-religious schools ; religious instruction has to be allowed to stand shoulder-to-shoulder with secular instruction . And they will probably also say that an exclusion would abridge the Fourteenth Amendment right to equal treatment under the law . It ’ s equally certain that other justices will disagree and say that parochial schools must be turned down because Oklahoma cannot directly support religious education — that ’ s exactly the kind of government sponsorship which the Establishment Clause prohibits . The $ 64 question is where the one or two so-called swing votes will come out and whether there will be five votes for one side or the other , or perhaps there will be a tie 4-4 vote or a mishmash of separate opinions / votes leaving all of us up in the air as to exactly what the “ rule ” is ?
Watch this space …
Church Executive will follow up when the Court hands down its decision , and perhaps earlier than that if there are surprises during oral arguments in late April , or maybe a request from the White House / Solicitor General to participate in the oral argument . Stay tuned .
— The Editors bound to cause trouble ! This was the balancing act the Court came up with to allow a church school to receive government subsidies for playground improvements . And to further muddy the waters , the Supreme Court has increasingly brought to bear another part of the First Amendment , the Free Speech Clause : government interference with free speech is permitted only in the rarest of circumstances , and religious “ speech ” has to stand on the same footing as non-religious speech . That ’ s why the Court decided a local school board couldn ’ t prevent the high school football coach from praying on the 50-yard line after games . Maybe the Court is going to find that religious instruction at a parochial school is a form of speech and can ’ t be burdened without the most compelling government purpose , and furthering the goals of the Establishment Clause isn ’ t a good enough purpose ? 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 . It ’ s near-certain that some of the justices will say parochial schools
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