At his weekly press conference last week, Stitt said he thinks the U.S. Supreme Court will decide that state tax dollars can be used to pay for religious schools that teach their faith as part of their curriculum.
He says the opinion will likely be a "historic" win for religious freedom in Oklahoma and the United States.
Brent Rowland is a Tulsa-based lawyer and the author of a recent data analysis trying to predict how the nation's highest court will rule on the matter of state-sponsored religious education.
He says Stitt is on to something.
"I think the governor sits right in that this is a huge decision," Rowland said. "I think, if the Supreme Court decides, as the data has led me to believe they will, that it's perfectly fine for Oklahoma to support Saint Isidore with public tax dollars. Then the gates will be open for not just Oklahoma, but for other states to support more and more religious institutions directly with tax dollars."
And that, Rowland says, is a huge shift from the way we've been thinking and operating about the separation of church and state.
Stitt's hope for a decision in his favor isn't without its empirical merit, at least according to Rowland's article in the Oklahoma Bar Association Journal's April issue.
In an analysis of 23 'religion-in-school' related U.S. Supreme Court decisions dating back to 1947, Rowland attempts to predict today's Supreme Court decision in the St. Isidore case more accurately than he could "a hand of poker."
He starts his piece by characterizing each case within certain parameters. Those include the constitutional basis of the lawsuit, whether a case was related to funding or religious practice, whether the Supreme Court held the lower ruling constitutional, whether it takes an 'activist' or 'restrained' stance in doing so, and the degree to which the court generally believes government and religion should be integrated, if at all.
For instance, Stitt mentions the 2020 case Espinoza v. Montana Dept. of Revenue in his executive order. Rowland characterizes it as follows:
- Issue: Funding. State tax credits in Montana were prohibited from being used by parents to pay for a private, faith-based education for their children.
- Constitutional basis: Free Exercise Clause; part of the First Amendment to the U.S. Constitution.
- Holding: Unconstitutional. The Supreme Court ruled that prohibiting the use of state school vouchers for faith-based private education is against its interpretation of the U.S. Constitution. The court reasoned that a state must have a 'compelling reason and no alternative' any time it's going to deny services to religious institutions that it offers to secular ones.
- Stance: Activist. Under Chief Justice John Roberts, Rowland writes, the Supreme Court tends to stray from precedent to make goal-oriented rulings, effectively legislating from the bench.
- Approach: Accommodationist. The court, under Roberts and other chief justices, has recently decided not to limit religious integration into government unless the government itself plans to establish its own religion.
Rowland points out the case's characteristics represent a trend."Every funding decision in the last 20 years, including three opinions from the Roberts Court, has been based on free exercise," he writes.
Before the Roberts Court, only the court led by Chief Justice Earl Warren in the 1950s and '60s took an activist stance, the data analysis shows.
To date, Rowland says, the Roberts court has done the same, overturning government-imposed restrictions in each religion-in-schools case it's heard.
"So here, where a challenge to the government's denial of funding is based on the free exercise clause and is brought before a court whose record is activist and accommodationist," he writes. "The data suggests the U.S. Supreme Court will likely overrule the Oklahoma Supreme Court and accommodate St. Isidore as a religious charter under the Oklahoma Charter Schools Act."
While the prediction is that the Supreme Court will allow states to pay for religious educational institutions aimed, in part, at spreading their religion, it's not a guarantee. Nor is it what Rowland expected to find during his research.
"Before I looked at the data, I think I would have believed that the Supreme Court wouldn't even grant the St. Isidore case certiorari to hear it," he said. "There's no need. Our Oklahoma Supreme Court did a great job on their reasoning and writing their opinion."
Based on precedent, anyway, which can always be changed.
"It would have been very easy to walk away from that political issue for the US Supreme Court and to just let it rest with the Oklahoma Supreme Court," Roland said.
