On April 30, the Supreme Court heard oral arguments in Oklahoma Statewide Charter School Board v. Drummond, which examines the constitutionality of religious charter schools. In this episode, Michael McConnell of Stanford Law School and Steven Green of Willamette University join Jeffrey Rosen to recap the oral arguments, debate the meaning and history of the Free Exercise and Establishment Clauses, and survey the Court’s other religion cases from this term.
Please follow We the People and Live at the National Constitution Center on Apple Podcasts, Spotify, or your favorite podcast app.
This episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Gyuha Lee and Samson Mostashari.
Participants
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. From 2002 to 2009, he served as a circuit judge on the United States Court of Appeals for the 10th Circuit. His latest book, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience, was cited by the petitioners in the case.
Steven Green is the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Willamette University. He is the author of six books, the most recent being Separating Church and State: A History. He authored an amicus brief in Oklahoma Statewide Charter School Board v. Drummond in support of the respondent.
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Fulton v. City of Philadelphia (2021)
- Carson v. Makin (2022)
- Michael McConnell and Nathan S. Chapman, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)
- Steven Green et al. Brief of Historians and Legal Scholars as Amici Curiae In Support of Respondent, Oklahoma Statewide Charter School Board v. Drummond
- Michael McConnell et al. Brief for Amici Curiae Religious Liberty Scholars In Support of Petitioners, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission
- Michael McConnell et al. Brief for Professors Douglas Laycock, Richard W. Garnett, Thomas C. Berg, Michael W. McConnell, and David M. Smolin as Amici Curiae In Support of Petitioners, Mahmoud v. Taylor
Excerpt from interview: Steven Green explains the history of states and cities across the country that declined to fund religious schools and how that history is reflected in the Court’s modern jurisprudence.
Steven Green:We saw in 1818, the Connecticut Constitution added its provision to prevent the funding of religious education. In 1826, Massachusetts passed its comprehensive, the first comprehensive common school act. And as part of that, Horace Mann made a definitive decision that he would try to de-emphasize the Protestant nature of public education that was evolving at that particular point in time. And he caught flack from both sides. He caught flack from the Catholics who said, wait, this still looks kind of Protestant, actually, they said, it looks really kind of unitarian, which man was. But then also from the Evangelicals, they said, this just was not religious enough. When we're thinking about historic trends to get back to Supreme Court's standard, though we can't freeze this issue in time, we have to see it as an evolving issue. And quite clearly, at least my research and my couple of books on this, has been that the evolving issue was to not fund religious education and also to slow movement toward the secularization of public education.
Those were the two trends throughout the 19th century. And in the 19th century when there was not... When school districts, states decided not to fund any remaining religious schools, as my brief points out or our brief points out, no one was raising a free exercise claim against that. No one said, oh, this is discrimination against religion. And so there was an understanding, at least under principles of non-establishment that was evolving at this particular point in time, is the government should not be funding religious based education. And then over time, that also came to mean the government also should not have religious instruction in its own schools, too.
And so that's where we went to. And so I agree with Judge McConnell that I don't think the Court is going to challenge that core finding in that second principle about not having religious instruction in public schools. But they are kind of narrowing what that means. And we, certainly, the courts have held equal access, Bible clubs in public schools. I'm not as sanguine as Judge McConnell is about the Kennedy case, because the facts in Kennedy actually were that he was engaged in religious activity with his team players many times prior to the lawsuit that came into being. And so I have a concern about the creep that's going to take place when you actually do start allowing teachers to engage in religious activity in their school capacities, in their official capacities on school time. I think that's problematic.
Michael McConnell outlines the arguments in Catholic Charites Bureau v. Wisconsin Labor and Industry Review Commission, predicting that the case will be decided unanimously for Catholic Charities.
Michael McConnell: I think this is a really easy case. It just seems to me the reasoning of the Wisconsin Supreme Court here is, to my mind, just completely off base. The law exempts these religious institutions operated for religious purposes. And the Wisconsin Supreme Court disqualified of all things Catholic Charities, which is the charitable arm of the Catholic Church. It's owned and operated and run by the bishops. It's part of the Church. And saying that that is not a run for religious purposes just kind of staggers the imagination over their reasons. Catholic Charities serves people without regard to religion as if that were not the practice. And the court said, by the way, that these are not the way religious organizations usually operate. Well, religious organizations doing charitable work have been serving people other than members of their own denominations for centuries. This is a really strange understanding of the, understanding of charitable endeavor. And they don't include worship or religious training. Well, you know, there's a divided, you know, some do, some don't. Salvation Army, I gather, would require attendance at religious services. I don't know if they still do this, but when they're providing meals and shelter.
But lots of religious organizations have never done this. There's a raging debate and has been for decades on the ethics of mixing the provision of services with mandatory participation in religious practices. Religious groups are on both sides of that line. And to say that you become not religious when you're on one side of it seems extremely strange. And what the Wisconsin Supreme Court's decision does is it doesn't just discriminate between religion and non-religion. It actually discriminates between religions. So that some religions are going to get the exemption and some aren't, depending upon whether the Wisconsin Supreme Court thinks that what they do is typical of other religions. Well, that's just not the business of the courts to be doing to decide what's typical of religions and everybody. If you don't conform to that, you don't get the exemption. I wouldn't be surprised if this case is unanimous.
Full Transcript
View Transcript (PDF)
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Stay Connected and Learn More
- Questions or comments about the show? Email us at [email protected]
- Continue the conversation by following us on social media @ConstitutionCtr.
- Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate.
- Follow, rate, and review wherever you listen.
- Join us for an upcoming live program or watch recordings on YouTube.
- Support our important work.
