How These Supreme Court Cases Could Reshape The Law Regarding Religion
(ANALYSIS) The big U.S. Supreme Court decisions due in the coming two months include three cases on the religion clauses in the Constitution’s Bill of Rights.
At issue: Can a state deny a tax benefit to religious charities it thinks are not “religious” enough, can religious parents withdraw public elementary schoolchildren from classes on gender identity and LGBT sexuality, and — a potential game-changer — whether religious charter schools can be publicly funded.
Here are some of the religious groups and viewpoints in these disputes.
Oklahoma Statewide Charter School Board v. Drummond
This important and complex dispute involves the first of what could conceivably become many publicly-funded charter schools created to inculcate religion. Two Catholic dioceses were set to open the innovative, online-only St. Isidore school last year after 3-2 approval from the Oklahoma board that supervises charter schools (which are tax-supported but operate independently of public school districts).
Republican Attorney General Gentner Drummond won an Oklahoma Supreme Court ruling (by 6-1 with one split decision) to forbid such funding, based on the U.S. Constitution’s ban on “establishment of religion” by government and on Oklahoma’s Constitution, which forbids public funding “directly or indirectly” to benefit any religion, cleric, or “sectarian institution.”
Drummond’s view of the law is supported by Democratic attorneys general in 18 states, 14 public-school organizations, and a brief from such groups as the Baptist Joint Committee for Religious Liberty, Muslim Public Affairs Council, Reform Judaism’s synagogue union, and leaders of the "mainline" Episcopal Church, Evangelical Lutheran Church in America, and United Church of Christ.
These religious foes of the St. Isidore experiment say traditional church-state separation does not hobble the religious freedom of Catholics or anyone else, and an Oklahoma go-ahead “would mark a radical break” from principles the Supreme Court “has embraced for more than 75 years.” A brief from 31 law professors adds that going back to Jefferson and Madison, Americans have believed “states had no obligation to fund religious schools.” Meanwhile, charter school proponents fear the Supreme Court might gut their movement by defining charters as private, not public.
The St. Isidore plan is deemed allowable by President Trump’s newly formed Department of Justice, five Republican senators, 12 Republican state attorneys general, the U.S. Catholic bishops, National Association of Evangelicals and other conservative Protestants, Jewish Coalition for Religious Liberty, and the Muslim program of the Religious Freedom Institute. The latter two groups filed a brief arguing that the aid to St. Isidore fits the religious “neutrality” the Supreme Court endorses. They say Drummond’s “aversion to religious plurality and educational choice in Oklahoma is misguided” in terms of constitutional law, and “disregards the benefits of expanding school choice to include religious institutions. … Families of all faiths (or no faith) benefit from a broad range of educational options.”
Mahmoud v. Taylor
Notably, the lead plaintiff in this case, Tamer Mahmoud, is a Muslim who unites with Christian parents to challenge Maryland’s largest public-school district. The mandated curriculum there for preschool through fifth grade now covers homosexuality and transgenderism. The plaintiffs do not request elimination of such teaching, but on religious freedom grounds want the schools reinstate a former policy and notify parents on sensitive schoolwork with the right to opt out.
The school district says it has no “LGBTQ+ curriculum,” but the classes will help youngsters “develop empathy for a diverse group of people and learn about identities that might relate to their families or community members.” In agreement, Americans United for Separation of Church and State and other liberal groups contend that the parents are not required to do anything their religions forbid, and that Supreme Court precedents found no threat to religious freedom when “a secular government action is offensive to a particular religious belief.”
A similar brief from the two major teachers’ unions argues that “mere exposure to ideas” that offend religious convictions does not impose “a substantial burden” on religion, whereas democracy and “the needs of a pluralistic society require toleration of conflicting views.” Also, accommodating the parents is said to impose “new and inappropriate burdens” on schools. The schools’ policy is also endorsed by e.g. LGBTQI advocates, the American Civil Liberties Union and American Psychological Association.
The opposite opinion comes in a brief from church-and state scholars including two experts who sometimes disagree, Douglas Laycock, emeritus professor at the University of Virginia, and Michael McConnell, director of Stanford University’s Constitutional Law Center. They say “confusion still reigns” on such matters, but protection of parents’ right to determine their children’s religious upbringing “should not have been a close call” under constitutional religious freedom. The parents’ plea is supported by the Trump DOJ, 66 GOP members of Congress, 26 Republican states, and Catholic, Orthodox Jewish, Muslim and evangelical groups.
Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission
In this nine-year controversy, Catholic Charities and related ministries to the disabled are protesting Wisconsin’s refusal of their exemption from unemployment taxes normally granted religious organizations. Though their work is religiously motivated, a state commission decided the agencies do not qualify because they do not evangelize clients or hire and serve only Catholics. The Wisconsin Supreme Court agreed in a 4-3 ruling.
A brief filed by eleven legal scholars, again including Laycock and McConnell, calls such policies in Wisconsin and three other states an “egregious” violation of the Constitution because Catholicism and other faiths have long believed charities to “serve all comers” are intrinsic to their belief and mission.
That viewpoint is backed in briefs from the Trump DOJ and 19 Republican state attorneys general. Also allied is a wide array of religious organizations that claim 90 million adherents, representing Catholicism, Eastern Orthodoxy, evangelical and other conservative Protestants, Seventh-day Adventists, Quakers, Latter-day Saints, Christian Science, Orthodox Judaism and others. One “mainline” Protestant denomination, the United Methodist Church, is also supporting the charities. (Judaism’s Reform and Conservative branches did not file on either side.
Wisconsin’s denial is favored by organized freethinkers and atheists and a joint brief from the ACLU, Interfaith Alliance, and National Council of Jewish Women. These groups contend that Wisconsin has drawn reasonable distinctions and the Catholics “seek to twist the First Amendment beyond recognition.” They also think if the charities win, other states might repeal their existing exemptions and thus “harm religious freedom in the name of protecting it.”
The analysis of the Court’s oral arguments by Amy Howe of the indispensable scotusblog.com thinks that with Justice Amy Coney Barrett not participating, the Oklahoma outcome appears to be a close call determined by Chief Justice John Roberts’s vote. Howe expects the religious petitioners to win in both the Maryland and Wisconsin face-offs.
Richard N. Ostling was a longtime religion writer with The Associated Press and with Time magazine, where he produced 23 cover stories, as well as a Time senior correspondent providing field reportage for dozens of major articles. He has interviewed such personalities as Billy Graham, the Dalai Lama, Mother Teresa and Joseph Cardinal Ratzinger (later Pope Benedict XVI); ranking rabbis and Muslim leaders; and authorities on other faiths; as well as numerous ordinary believers. He writes a bi-weekly column for Religion Unplugged.