APRIL 2025 | 11 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) Religious practice: A public high school elected a student to lead a prayer over a public address system at each football game. Establishment Clause Unconstitutional Activist Separationist Reasoning: Prayer was authorized by the government and government-sponsored on government property. Many students were required to attend the games. Zelman v. Simmons-Harris, 536 U.S. 639 (2002) Funding: The state provided tuition vouchers students could use to attend any private school, secular or religious. Establishment Clause Constitutional Activist Neutralist Reasoning: “[B]enefits are available to ... families on neutral terms, with no reference to religion.” (653). Locke v. Davey, 540 U.S. 712 (2004) Funding: A state scholarship program included religious colleges but not ministerial studies because the state constitution prohibited public funding of religion. Free Exercise Clause Constitutional Restraintist Neutralist Reasoning: The state could allow scholarships to be used by students studying for ministry, but denying it doesn’t violate the free exercise clause. Roberts Court, 2005 to Present Case Issue Basis Holding Stance Approach Note Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017) Funding: The state gave grants to resurface playgrounds but denied a grant to a church school because the state constitution prohibited public funds for religion. Free Exercise Clause Unconstitutional Activist Accommodationist Reasoning: The state denied an otherwise available public benefit because of a school’s religious status. Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464 (2020) Funding: State tax credit was prohibited for religious schools because the state constitution prohibited funding religion. Free Exercise Clause Unconstitutional Activist Accommodationist Reasoning: The state must have a compelling reason and no alternative any time it denies benefits to religious institutions that it allows to secular ones. Carson as next friend of O. C. v. Makin, 596 U.S. 767 (2022) Funding: The state provided funds to attend private schools in rural areas without public schools but did not allow funds for religious schools. Free Exercise Clause Unconstitutional Activist Accommodationist “A state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (778). Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022) Religious practice: A public school coach was fired for kneeling and praying midfield after games. Freedom of Speech; Free Exercise Unconstitutional Activist Accommodationist Reasoning: “The District sought to restrict Kennedy’s actions at least in part because of their religious character.” (508).
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