APRIL 2025 | 7 THE OKLAHOMA BAR JOURNAL Constitutional Law Playing the Odds: What’s Next for Religion in Schools? By Brent Rowland OKLAHOMANS LOVE THEIR CASINOS. We have more than any other state – 143 offering slots, blackjack and off-track betting.1 They don’t take bets on U.S. Supreme Court decisions, but as attorneys, wouldn’t it be great to know odds? Part of our work is playing the odds. We strategize based on factors like controlling precedent or persuasive case law and what we know about the judge’s prior decisions. I’m not setting odds on constitutional questions before the Supreme Court, but I wondered: If we look at the court’s decisions on religion in schools, what trends might stand out? What characteristics of the cases and the court could be generalized so that correlations among them might help explain how the court has decided cases in the past and possibly predict how it’ll decide the cases currently before it? And what would that data predict about the outcome of an Oklahoma case awaiting argument before the court, the St. Isidore case,2 a decision that could provide public funding for private religious schools in the U.S. like never before? IDENTIFYING AND DEFINING CHARACTERISTICS OF THE CASES AND THE COURT The court’s religion-in-schools cases fall into two categories: those deciding whether religious practices violate the establishment or free exercise clauses of the First Amendment3 and those determining how government funding can support religious schools without breaching the separation of church and state. As for characteristics of the court, the justices on the court and the era that shaped it can be sufficiently identified with the chief justice who presided over it. For example, the Warren Court, contemporaneous with the civil rights movement, stands out for its activism on religion-in-schools issues like state-sponsored prayer and scripture reading.4 Is there a similar identifiable tendency for each court? And do those tendencies hold true when deciding funding issues as well as religious practice issues? A court’s stance on any case, a characteristic of its jurisprudence, can be characterized as activist or restraintist. Courts take an activist stance when they: 1) strike down arguably constitutional actions of other governmental actors; 2) ignore controlling precedent from a higher court or the court’s own previous decisions; 3) legislate from the bench; 4) deviate from accepted canons of interpretation to reach a decision; or 5) engage in result-oriented decision-making.5 Conversely, when not exercising activism, courts are practicing restraint. 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.
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