Opinion: The wall between religion and government in America is coming down brick by brick

In the ongoing discourse surrounding the dividing line between religion and government in America, recent developments have sparked intense debate. A prominent political figure, while stating his support for the church-state separation, has raised eyebrows by suggesting a more lenient approach to religious expression in public spaces.

Currently, the Supreme Court, with its six conservative justices, has demonstrated a growing interest in delving into the historical foundations of this separation. This shift is highlighted by their perspective on the Kennedy v. Kennedy (Bremerton School District) case, where a football coach was granted the right to privately pray on the 50-yard line, amidst players and spectators, at the close of a game.

This decision, initiated by a 5-4 majority led by Gorsuch, has stimulated a heated discussion around the constitutional rights to practice religion freely without violating the Establishment Clause's prohibition on state-sponsored religion. The conflict between the Free Exercise and Establishment Clauses has been a perpetual controversy ever since they were incorporated into the U.S. Constitution in 1791.

In an attempt to address this complexity, U.S. Supreme Court justices have employed three primary strategies:

1. Strict Separation: Initiated by Thomas Jefferson's vision of a "wall" between religion and government, this stance emphasizes the separation of religion and state,osaic association supporting this ideology of religious freedom.
2. Neutrality: Introduced by Chief Justice Warren Burger, the 'lemon test' distinguishes between direct funding of religious institutions and state funding for secular objectives. It's imperative for policy to neither promote nor suppress religion, thereby avoiding excessive entanglement between church and state.
3. Religious Tolerance: Conservative justices argue that strict adherence to separation leads to a violation of religious freedom, since anti-establishment of religion protects various religious beliefs.

These strategies have come under scrutiny with the recent court cases depicting a pro-religion stance, often conflicting with legal norms. While the high court has adopted a reconciliatory position, granting religious groups more leeway, it remains to be seen how this impacts the religious landscape in America.

Current enrichment data suggests several evolving interpretations of the Free Exercise and Establishment Clauses:

Free Exercise Clause

1. Protection of Religious Institutions:
2. The Supreme Court has consistently upheld that states cannot deny public benefits to religious entities based on their religious status, as seen in Trinity Lutheran Church v. Comer (2017), Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022).
3. State Action Doctrine:
4. The Court has clarified that extensive state regulation and funding do not transform private entities into state actors, indicated in Rendell-Baker v. Kohn and Oklahoma Statewide Charter School Board v. Drummond.
5. Religious Discrimination in Public Programs:
6. Despite the Court’s rulings, many public programs continue to unconstitutionally discriminate against religious providers, such as in the exclusion of religious entities from public pre-K programs.

Establishment Clause

1. Government Neutrality Toward Religion:
2. The First Amendment requires government neutrality toward religion. The Court emphasizes the Establishment Clause does not prevent religious institutions from cooperating with the government to advance public good through participation in neutral government programs.
3. Neutral Government Programs:
4. The Court has ruled that neutral government programs benefiting religious organizations do not violate the Establishment Clause, such as in Zelman v. Simmons-Harris.
5. Potential Loopholes:
6. The Court has left open a potential loophole regarding whether a state can refuse to provide funds that might be used for religious purposes, an unresolved issue in Trinity Lutheran and Espinoza.

Implications for Religious Charter Schools

1. Oklahoma Charter School Case:
2. The Supreme Court is reviewing a case involving a Catholic online school in Oklahoma, challenging a state ruling preventing its participation in the charter school program due to its religious character.
3. Broader Implications:
4. This case highlights the tension between religious liberty and state action, with repercussions for religious schools participating in public educational programs.