Dan McLaughlin’s recent review of Politico’s series of misleading, cause-driven articles about the law reminded me that I had never gotten around to reading this entry, which came out during the holidays. The idea is that Oklahoma, by allowing religious as well as nonreligious organizations to operate charter schools, is violating the constitutional division between churches and states — and, naturally, doing so at the prompting of the same sinister cabal of conservatives that Politico’s legal coverage consistently demonizes.
Here’s how reporter Heidi Przybyla summarizes the issue: “Brett Farley, executive director of the Catholic Conference of Oklahoma, acknowledges that public funding of St. Isidore is at odds with over 150 years of Supreme Court decisions.”
What relevant decisions does Politico imagine the Supreme Court was making in the 1870s? (Or earlier!) It wasn’t until the 1940s that the Court even ruled that the religious-freedom guarantees of the First Amendment applied against state governments. The most notable Supreme Court opinion touching on religious freedom in the second half of the 19th century found that the government could enforce laws against polygamy on religious dissenters. No part of that ruling is at issue in Oklahoma.
There are “strict separationist” precedents from the 1940s onward, but the Supreme Court has now been backing away from those precedents for decades. So both the narrow point of this Politico sentence (“over 150 years”) and the possible broader point about breaking with decades of precedent are false.
So it would have been bizarre for Farley to make this comment to Politico. Reached by email, he says he didn’t make it. “I never referred to or even implied that time frame,” he tells me.