OKPOLICY.ORG
While the legislature was plowing its way through multiple bills toward this week’s deadline for floor passage of bills originating in the opposite chamber, issues of private religious faith in the public sector worked their way toward a conclusion. It has been a cardinal rule that public funding of private schools is prohibited by the Establishment Clause of the U.S. Constitution’s First Amendment.
In the 1971 case of Lemon v. Kurtzman, the U.S. Supreme Court (SCOTUS) established what became known as the “Lemon Test,” a three-pronged standard for determining whether government action violates the Establishment Clause: (1) The action must have a secular purpose; (2) its primary effect must neither advance nor inhibit religion; and, (3) it must not result in excessive government entanglement with religion.
It seems clear that if the Court sticks with this test, the St. Isidore of Seville Catholic Virtual School cannot be funded with Oklahoma taxpayer dollars because its curriculum includes the teaching and practice of the Roman Catholic faith. But the case may not be that simple. Recent cases reflect SCOTUS’ evolving stance on religious liberty and public funding, with recent rulings moving toward broader access for religious institutions.
In Carson v. Makin (2022), the Court ruled that Maine’s tuition assistance program could not exclude religious schools from receiving funds if they otherwise met the program’s criteria. The decision reinforced the principle that states cannot discriminate against religious institutions in public benefits programs.
In Fulton v. City of Philadelphia (2021), SCOTUS ruled that Philadelphia could not exclude a Catholic foster care agency from its program because of the agency’s religious beliefs, emphasizing that government programs must remain neutral toward religion.
If the Supreme Court applies a similar rationale to the St. Isidore case, it may determine that barring St. Isidore from operating as a charter school solely because of its religious nature is unconstitutional. However, Attorney General Gentner Drummond’s argument – that charter schools are public schools and must remain secular – seems like the better argument to me.
The St. Isidore ruling could have an impact on traditional public schools as private church schools convert to public charters for greater access to tax dollars. In Oklahoma, the Legislature has already invested $250 million per year in private school tuition vouchers that can be accessed by religious schools. Adding religious charter schools would take more funding from traditional public education.
On a more immediate legislative note, Senate President Pro Tempore Lonnie Paxton, R-Tuttle, said last week the Senate would not schedule a floor hearing for House Concurrent Resolution 1013, known as the “Christ the King” resolution, by Rep. Jim Olsen, R-Roland, and Sen. Shane Jett, R-Shawnee. Concurrent resolutions are not law, but are intended to express the “sense of the legislature” or to be a formal way for the legislature to express its opinion on a particular issue.
HCR 1013 resolved “that the Oklahoma State Legislature hereby proclaims ‘Christ is King,’ recognizing the spiritual significance of this declaration to many of its citizens and honoring the role of faith in the history and culture of Oklahoma.” In announcing the resolution would not be heard, President Pro Tempore Paxton said, “I don’t need a resolution to bolster my Christianity. We just don’t feel the need to take that up in the Senate. I always tell people rather than proclaiming what you are, act what you are.”
Well said.
