Lincoln Memorial University Law Review Archive
First & Last Page
178-227
Abstract
The Establishment Clause of the First Amendment has steadily been eroded over the past ten years by the Supreme Court, but it all began with the infamous Lemon test in 1971. In _Lemon v. Kurtzman_, the Court established the Lemon test to create a “clearer” standard to determine if a government policy or action directly or indirectly advanced or accommodated religion in compliance with the Establishment Clause. Over time, the Lemon test has slowly be whittled away, leaving the opportunity for revision in _Kennedy v. Bremerton_. The Court in Bremerton interpreted the clause “by reference to historical practices and understandings.” However, this opinion only opened the door to many more unanswered questions.Recently, cases such as _Trinity Lutheran v. Comer_, _Espinoza v. Montana Department of Revenue_, and _Carson v. Makin_ have challenged the notion of government neutrality when it comes to the Establishment Clause and the Free Exercise Clause. The divided Court in _Trinity Lutheran_ applied the most stringent analysis to determine whether the law that infringed on a party’s right was used to further a compelling interest and whether the interest is furthered by narrowly tailored means. Justice Sotomayor, joined by Justice Ginsburg, strongly dissented, asserting that the Court had changed the relationship between religious institutions and the civil government, or between church and state. As if by premonition, this is exactly what is happening in the current landscape of religious charter schools. Following _Trinity Lutheran_, along came _Espinoza v. Montana Department of Revenue_ nullifying the remaining Blaine amendments in state constitutions. These remaining amendments or “no-aid” provisions prevented state money from being given based on religious use of the funds. Finally, _Carson v. Makin_ came crashing in to scramble the First Amendment even further. The Court held that Maine’s “nonsectarian” requirement for their tuition assistance program for students violated the Free Exercise Clause since the “program operated to identify and exclude otherwise eligible schools on the basis of their religion.”Public education is now on the chopping block as parochial public charter schools may become a real possibility as a result of the Supreme Court’s decision in _Trinity Lutheran_. Currently, only Oklahoma, has approved an application for a parochial school, St Isidore of Seville Virtual Catholic School. In summer 2024, however, the Oklahoma Supreme Court, ruled that a parochial charter school was unconstitutional. This will likely not be the end of the road for St. Isidore. Furthermore, Oklahoma is likely to be only the first state to challenge the unconstitutionality of parochial charter schools.States are stuck between a rock and a hard place in trying to prevent public funding from being disbursed to religious charter schools. States have only three options: completely eradicate charter schools and other tuition assistance programs; argue that as state actors, the Establishment Clause prevents religious charter schools; or argue that as private actors, charter schools are in a league of their own and not confined to the reasoning in _Trinity Lutheran_. The only way to prevent funding for parochial schools is to take the necessary measure of repealing state statutes allowing for charter schools, voucher programs, and tuition assistance. States should reinforce the separation between church and state by putting a nail in the coffin of charter schools to prevent the disastrous consequences of allowing parochial charter schools to devastate the public school system.
Recommended Citation
Brittany Lezu,
Begin with Lemon, Fill to the Bri with Bremerton, Stir in Trinity Lutheran, Add a Pinch of Espinoza, and Combine Carson: A Recipe for Educational Disaster,
12
Lincoln Mem’l U. L. Rev.
(2024).
Available at:
https://digitalcommons.lmunet.edu/lmulrev/vol12/iss1/2
