Religion could take on a more prominent role in publicly funded education after this Supreme Court term.
On Friday, the justices said that they would consider a bid for the country’s first publicly funded religious charter school, in Oklahoma. A week earlier, the court had said that it would hear an appeal from Maryland parents seeking the right to keep their children from reading LGBTQ-themed books.
In both cases, religious groups successfully petitioned the justices despite warnings that crediting their legal claims would break new ground.
To be sure, the court has already favored First Amendment religious arguments in recent years. Doing so in these new cases wouldn’t be a new phenomenon. The question is how much further the court might go in this area.
To be sure, the court has already favored First Amendment religious arguments in recent years.
In the Oklahoma case, the petition from lawyers with the Alliance Defending Freedom cited recent high court rulings bolstering First Amendment claims of free exercise of religion. Opposing their petition, the state’s Republican attorney general distinguished those rulings by writing that they were about “state subsidization of tuition at existing private religious schools, not state establishment of new public religious schools.”
Responding to the Supreme Court’s taking of the Oklahoma case, the American Civil Liberties Union and others said in a statement: “Converting public schools into Sunday schools would be a dangerous sea change for our democracy.”
Notably, Justice Amy Coney Barrett recused herself from the case. The order granting review didn’t explain why the court will be without the Trump appointee, who has been in the majority in divided religion rulings. But if the case is headed for another partisan split on the court with six Republican appointees and three Democratic appointees, the rest of the majority may have figured it can afford to lose one vote. It takes four justices to grant review.
The court has a full set of justices for the Maryland case, Mahmoud v. Taylor. Citing similar First Amendment precedents, parents of elementary school students say their rights are burdened through their children’s forced participation in certain instruction on gender and sexuality without parental notice or the chance to opt out. School officials, meanwhile, say that the parents are trying to “unsettle a decades-old consensus that parents who choose to send their children to public school are not deprived of their right to freely exercise their religion simply because their children are exposed to curricular materials the parents find offensive.” Of course, the Dobbs case and other recent appeals have shown that a majority of the court can change how the law is interpreted if it chooses to. Once again, we wait to see what the court will do. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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