THE OKLAHOMA BAR JOURNAL 8 | APRIL 2025 Just as that dichotomy can be used to describe a court’s stance on jurisprudence in general, the court’s approach to religion-inschools cases, in particular, adds a layer of data that may make its future decisions more predictable. Erwin Chemerinsky presents three competing approaches the court can take to its application of the establishment and free exercise clauses.6 The first approach is strict separation, maintaining a wall of separation between government and religion to the greatest extent possible.7 In the second approach, neutrality, the court expects the government to remain neutral on religion by neither favoring religion over secularism nor one religion over any other.8 Applying a neutralist approach, courts read the establishment and free exercise clauses together so that religious classification provides no basis for the government to confer any benefit or impose any burden; government neither endorses nor disapproves of religion.9 Accommodation, the third approach, says the government accommodates a relationship with religion based on its significance to society and culture.10 As an example, in the accommodationist view, the government would only violate the establishment clause by literally establishing a church or coercing participation in a religion.11 BRINGING CHARACTERISTICS TOGETHER IN ONE TABLE Figure 1 is a chronological list of the Supreme Court’s religionin-schools cases since the Vinson Court, with additional columns to show the nature of the issue as funding or religious practice; whether the decision was based on the establishment clause, the free exercise clause or another First Amendment freedom; the court’s holding – constitutional if it upheld the government’s law or action, unconstitutional if it didn’t; the court’s stance on the case as activist or restraintist; and its approach to the case as separationist, neutralist or accommodationist.12 Reasonable minds could reach different conclusions about the court’s stance on and approach to a given case. Their inclusion on the table doesn’t make them definitively correct. Their importance is in the invitation to think beyond what the court explicitly says in its opinions and to look at the unspoken beliefs that shape its decisions, yielding trends in the court’s past reasoning that offer clues about its future rulings. LOOKING FOR TRENDS IN THE DATA Now that the table – the “racing form” – is built, let’s turn to the data. What observations stand out? First, the issue most commonly brought before the court has shifted from religious practice to government funding. Before 1993, only three of 14 cases concerned funding issues. Since 1993, of the nine religion-in-schools cases the Supreme Court has heard, seven of those addressed funding, with three of the seven decided since 2017 by the Roberts Court. Second, the court’s constitutional rationale has shifted over time. Before 1993, the establishment clause was the basis for 85% of religion-in-schools cases – or 12 of 14 decisions. In contrast, from 1993 on, less than half of the cases, four of nine, were decided on the establishment clause. The majority of cases relied on free exercise, with one, Kennedy v. Bremerton,13 incorporating free exercise and freedom of speech. Every case before the Roberts Court has involved free exercise. Although the increase in challenges to government funding of religious schools has coincided with increased reliance on the free exercise clause, the two don’t appear in the same case as often as one might expect. Of the 10 funding cases the court has addressed, only four were decided on the free exercise clause. All four of those cases were decided after 2004. Every funding decision in the last 20 years, including three opinions from the Roberts Court, has been based on free exercise. Here, a pattern emerges that’s likely predictive. Before the Roberts Court, only the Warren Court consistently took an activist stance. To date, the Roberts Court has done the same, invalidating the government’s action in each of the religion-inschools cases it’s heard. As for approach, every previous court has been mixed in their application – sometimes separationist, sometimes neutralist, rarely accommodationist. The Roberts Court, however, has invariably accommodated religion both in government funding programs and in questions of religious practice. But here’s a twist: Prior to 1995, every funding case before the Supreme Court challenged the government’s use of funds to somehow support religion – paying for parochial school buses, allowing tax credits for families’ parochial school expenses or providing for a sign language interpreter in a religious school. Beginning 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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