Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma
Supreme Court briefApr 7, 2025
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No. 24-394 & No. 24-396
In the Supreme Court of the United States
OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, ET AL.
Petitioners,
v.
GENTNER DRUMMOND, ATTORNEY GENERAL FOR THE
STATE OF OKLAHOMA, EX REL. STATE OF OKLAHOMA,
Respondent.
ST. ISIDORE OF SEVILLE CATHOLIC
VIRTUAL SCHOOL, ET AL.
v.
Petitioners,
GENTNER DRUMMOND, ATTORNEY GENERAL FOR THE
STATE OF OKLAHOMA, EX REL. STATE OF OKLAHOMA,
Respondent.
On Writs of Certiorari to
the Supreme Court of Oklahoma
BRIEF OF HISTORIANS AND
LEGAL SCHOLARS AS AMICI CURIAE
IN SUPPORT OF RESPONDENT
EUGENE R. FIDELL
Yale Law School
Supreme Ct. Clinic
127 Wall Street
New Haven, CT 06511
CHARLES A. ROTHFELD
Counsel of Record
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
crothfeld@mayerbrown.com
Counsel for Amici Curiae
(Additional counsel listed inside cover)
STEVEN K. GREEN
Willamette University
900 State St., S.E.
Salem, Oregon 97301
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................... iii
INTEREST OF THE AMICI CURIAE ................. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................... 3
ARGUMENT ......................................................... 6
A. This case should be resolved by
reference to historical practice and
tradition. ......................................................... 6
B. State and local governments declined
requests for public funding from
religious schools through the
nineteenth century, and no one
challenged these denials under the
free-exercise provisions of state
constitutions. .................................................. 9
1.In the Founding and antebellum
eras, states did not fund religious
schools on equal terms with other
private schools. ...................................... 10
2.Religious schools that were denied
funding did not challenge those
denials under the free-exercise
provisions of state constitutions. .......... 14
ii
TABLE OF CONTENTS—continued
Page
3.Exclusion of religious schools from
public funding early in the
nineteenth century is not
attributable to animus against
Catholics. ............................................... 18
C. The Oklahoma Constitution’s “nofunding” provision and charter-school
statute are not products of antiCatholic bigotry. ........................................... 21
1.The no-funding provision of the
Oklahoma Constitution is a
response to the compelled religious
indoctrination of Native American
children, not a Blaine Amendment. ..... 23
2.The Oklahoma Supreme Court
consistently has recognized that
the Oklahoma Constitution’s nofunding provision is not a Blaine
Amendment. .......................................... 27
CONCLUSION .................................................... 30
APPENDIX.......................................................... 1a
iii
TABLE OF AUTHORITIES
Page(s)
Cases
American Legion v. American Humanist
Ass’n,
588 U.S. 29 (2019) .................................................. 8
Commonwealth v. Cronin,
2 Va. Cir. 488 (1855) ............................................ 16
Commonwealth v. Wolf,
3 Serge. & Rawle 48 (Pa. 1817) ........................... 16
Connell v. Gray,
127 P. 417 (Okla. 1912) .................................. 27, 28
Dobbs v. Jackson Women’s Health Org.,
597 U.S. 215 (2022) .......................................... 6, 17
Drummond v. Oklahoma Statewide
Virtual Charter School Board,
558 P.3d 1 (2024).................................................. 22
Espinoza v. Montana Dep’t of Revenue,
591 U.S. 464 (2020) .................................... 9, 18, 23
Fulton v. City of Philadelphia,
593 U.S. 522 (2021) ................................................ 8
Kennedy v. Bremerton Sch. Dist.,
597 U.S. 507 (2022) ................................................ 6
iv
TABLE OF AUTHORITIES—continued
Page(s)
National Rifle Ass’n v. Bondi,
No. 21-12314, 2025 WL 815734 (11th
Cir. Mar. 14, 2025) ................................................. 9
New York State Rifle & Pistol Ass’n v.
Bruen,
597 U.S. 1 (2022) ........................................ 6, 7, 8, 9
Ex parte Newman,
9 Cal. 502 (1858) .................................................. 16
People v. Philips,
1 W.L.J. 109 (Gen. Sess., N.Y. 1813) ............. 15, 16
Permoli v. Municipality No. 1 of the City
of New Orleans,
44 U.S. 589 (1845) .......................................... 16, 17
Prescott v. Oklahoma Capitol
Preservation Commission,
373 P.3d 1032 (Okla. 2015).................................. 29
Samia v. United States,
599 U.S. 635 (2023) .......................................... 7, 17
Town of Greece v. Galloway,
572 U.S. 565 (2014) ............................................ 6, 8
United States v. Rahimi,
602 U.S. 680 (2024) ............................................ 6, 7
Vidal v. Elster,
602 U.S. 286 (2024) ............................................ 6, 7
v
TABLE OF AUTHORITIES—continued
Page(s)
Walz v. Tax Comm’n of City of N.Y.,
397 U.S. 664 (1970) ................................................ 8
Statutes
Act of Feb. 22, 1889, ch. 180, 25 Stat.
676 ........................................................................ 23
Ill. Const. of 1870, art. VIII, § 3 ................................ 14
Mich. Const. of 1835,
https://perma.cc/8723-CU2Y. ............................... 28
Mo. Const. of 1875 Art. II, § 5 ............................. 28, 29
Ok. Const. Article II, Section Five
.......................................... 21, 22, 24, 25, 26, 28, 29
Va. Const. of 1830...................................................... 28
Other Authorities
Randy E. Barnett & Lawrence B.
Solum, Originalism After Dobbs,
Bruen, and Kennedy: The Role of
History and Tradition, 118 Nw. U. L.
Rev. 433 (2023) ....................................................... 7
Biographical Directory of the United
States Congress, Library of
Congress,
https://bioguide.congress.gov/ .............................. 23
vi
TABLE OF AUTHORITIES—continued
Page(s)
Thomas Boese, Public Education in the
City of New York: Its History,
Condition, and Statistics (1869) .................... 12, 13
William Oland Bourne, History of the
Public School Society of the City of
New York, With Portraits of the
Presidents of the Society (1870) ............... 11, 19, 20
Kenny Lee Brown, Robert Latham
Owen, Jr.: His Careers as Indian
Attorney and Progressive Senator
(1985) (Ph.D. dissertation, Okla.
State Univ.), https://perma.cc/MB6XSEAG .................................................................... 26
Sequoyah Const. art. I § 6, in 1 The
Okla. Red Book 624 (Seth K. Corden
& W.B. Richards eds., 1912),
https://perma.cc/TZ4B-AMC2 .............................. 25
Editor’s Table, 7 Harper’s New Monthly
Mag. 269 (1853) .................................................... 19
Albert H. Ellis, A History of the
Constitutional Convention of the
State of Oklahoma (1923) .................................... 27
Henry E. Fritz, The Making of Grant's
“Peace Policy,” 37 Chrons. of Okla.
411 (Winter 1959-60),
https://perma.cc/Q8V7-RPCV .............................. 24
vii
TABLE OF AUTHORITIES—continued
Page(s)
Richard James Gabel, Public Funds for
Church and Private Schools (1937) ..................... 14
Roy Gittinger, The Formation of the
State of Oklahoma (1803-1906)
(1917) .................................................................... 24
George Washington Grayson, A Creek
Warrior for the Confederacy: The
Autobiography of Chief G. W.
Grayson (W. David Baird ed., 1988) .................... 26
Steven K. Green, ‘Blaming Blaine’:
Understanding the Blaine
Amendment and the 'No-Funding'
Principle, First Amend. L. Rev. 107
(2003) .................................................................... 18
Steven K. Green, The Bible, the School,
and The Constitution: The Clash
that Shaped Modern Church-State
Doctrine (2012) ............................. 11, 12, 13, 19, 20
Steven K. Green, The Insignificance of
the Blaine Amendment, 2008 B.Y.U.
L. Rev. 295 ................................................ 18, 19, 20
Carl F. Kaestle, The Evolution of an
Urban School System: New York City
1750-1850 (1973) .................................................. 11
viii
TABLE OF AUTHORITIES—continued
Page(s)
Kurt Lash, Respeaking the Bill of
Rights: A New Doctrine of
Incorporation, 97 Ind. L.J. 1439
(2022) ...................................................................... 9
Amos D. Maxwell, The Sequoyah
Convention (1953) .......................................... 25, 26
Michael W. McConnell, The Origins and
Historical Understanding of Free
Exercise of Religion, 103 Harv. L.
Rev. 1409 (1990) ............................................... 8, 17
Michael W. McConnell, Schism, Plague,
and Late Rites in the French
Quarter: The Strange Story Behind
the Supreme Court's First Free
Exercise Case, in First Amendment
Stories (Richard W. Garnett &
Andrew Koppelman eds., 2012) ........................... 16
Craig B. Mousin, State Constitutions
and Religious Liberty, in Religious
Organizations in the United States:
A Study of Identity, Liberty, and the
Law (James A. Serritella, et al., eds.,
2006) ..................................................................... 15
Bryan Newland, Federal Indian
Boarding School Initiative
Investigative Report (2022),
https://perma.cc/664A-G652 ................................ 24
ix
TABLE OF AUTHORITIES—continued
Page(s)
Privileged Communications to
Clergymen, 1 Cath. L. 199 (1955) ........................ 16
Proceedings of the Constitutional
Convention of the Proposed States of
Oklahoma (1907),
https://perma.cc/8MHP-HPWD ..................... 25, 28
Francis Paul Prucha, The Churches and
the Indian Schools, 1888-1912 (1979) ........... 24, 26
Rennard Strickland, The Indians in
Oklahoma (1980) .................................................. 26
William Sampson, Catholic Question in
America (1813) ..................................................... 15
Aaron Tang & Ethan Hutt, “Original
History” and the Free Exercise Case
for Religious Charter Schools, 103
Wash. U. L. Rev. (forthcoming 2026),
https://perma.cc/5VYZ-PGBJ
..................................................................... 7, 10-14
INTEREST OF THE AMICI CURIAE1
Amici are historians and legal scholars who specialize in constitutional history and First Amendment
law. They have substantial experience in the history
and development of the Religion Clauses, including
how those Clauses have related to education issues.
Amici have a professional interest in the issues raised
in this case and believe that the Court should resolve
the case based on a complete and accurate account of
the relevant history. Amici are:
Alan Brownstein
Professor of Law Emeritus
UC Davis School of Law
Nina J. Crimm
Retired Professor of Law and the Frank H. Granito
Jr. Faculty Scholar
St. John’s University School of Law
Paul Finkelman
Visiting Professor, University of Toledo College of
Law
President William McKinley Distinguished Professor
of Law and Public Policy, Emeritus, Albany Law
School
Frederick Mark Gedicks
Guy Anderson Chair and Professor of Law
Brigham Young University Law School
Pursuant to this Court’s Rule 37.6, amici state that no counsel
for a party authored this brief in whole or in part and that no
person other than amici or their counsel made a monetary contribution to its preparation or submission.
1
2
Steven K. Green
Fred H. Paulus Professor of Law and Affiliated
Professor of History and Religious Studies
Willamette University
Leslie C. Griffin
Boyd Professor of Law
University of Nevada, Las Vegas, William S. Boyd
School of Law
Marci A. Hamilton
Professor of Practice in Political Science
Fox Family Pavilion Senior Fellow in the Program
for Research on Religion
University of Pennsylvania
Ethan Hutt
Associate Professor and Gary Stuck Faculty Scholar
in Education
University of North Carolina - Chapel Hill
Richard B. Katskee
Assistant Clinical Professor of Law
Director, Appellate Litigation Clinic
Duke University School of Law
Adam Laats
Professor of Education and History
Binghamton University (State University of New
York)
Eric Michael Mazur
Robert Nusbaum Center Religion, Law, & Politics
Fellow
Virginia Wesleyan University
3
R. Laurence Moore
Newman Professor of History and American Studies,
Emeritus
Cornell University
Frank S. Ravitch
Professor of Law and Walter H. Stowers Chair in
Law & Religion
Michigan State University College of Law
Campbell F. Scribner
Associate Professor of Education
University of Maryland, College Park
Nomi Stolzenberg
Nathan and Lilly Shapell Chair in Law
USC Gould School of Law
Aaron Tang
Professor
UC Davis School of Law
Laura S. Underkuffler
J. DuPratt White Professor of Law
Cornell University
Laurence H. Winer
Professor Emeritus of Law
Sandra Day O’Connor College of Law
Arizona State University
INTRODUCTION AND
SUMMARY OF ARGUMENT
Amici address the question whether the First
Amendment’s Free Exercise Clause requires a state to
provide financial support to religious schools whenever the state provides financial support to nongovernmental secular entities that operate schools. The
4
answer to this question lies in history and tradition,
which shows unequivocally that, during the early
years of the Republic, state and local governments often declined requests from religious schools for public
funding—and consistently were understood to be entitled to do so within the boundaries of the then-existing right to free exercise of religion.
The question here is not a new one. In the generation just after adoption of the U.S. Constitution, and
in the century leading to ratification of the Fourteenth
Amendment, state and local governments repeatedly
considered providing education through religious
schools that were paid for by the government. And although governments sometimes did provide that support, they often—and increasingly—did not. Even so,
those operating religious schools never initiated litigation asserting a right to such funding, notwithstanding the existence of free-exercise clauses in state constitutions. This “no-funding” practice, and the absence
of any challenge to it, provides compelling evidence
that free-exercise clauses (including the one in the
U.S. Constitution) do not require state funding of religious schools in the circumstances of this case. That
history and tradition is fatal to petitioners’ contrary
position.
A. This case should be resolved by reference to the
history and tradition of public funding for religious
schools. The Court consistently has looked to historical understandings in determining the original public
meaning of constitutional provisions. In undertaking
this inquiry, the treatment and application of state
constitutional provisions is entitled to substantial
weight, as is consistent and unchallenged state practice. When addressing application of the Bill of Rights
to the States, the Court looks both to the Founding era
5
and to practice preceding ratification of the Fourteenth Amendment.
B. This history reflects a widely shared understanding that states had no obligation to fund religious schools. Throughout the antebellum period, as
common schools were established, states declined requests to fund religious schools even while they
funded schools operated by other entities. This practice was grounded, not in hostility to particular religions, but on the view that funding religious instruction would foment civic strife and damage school administration. During this period, virtually all state
constitutions contained free-exercise clauses that
were similar in principle to the U.S. Constitution’s
Free Exercise Clause, which religious litigants frequently invoked in asserting their free-exercise rights
across a range of contexts. Nevertheless, religious
schools never asserted a free-exercise right to public
funding. This is powerful evidence that the free-exercise principle was not originally understood to include
the right to public funding of religious schools.
C. Petitioners are incorrect in asserting that the
no-funding provision of the Oklahoma Constitution
derives from the Blaine Amendment and the antiCatholic bigotry sometimes associated with that federal effort. Oklahoma has its own, distinct history.
Oklahoma’s no-funding provision is directly traceable,
not to Blaine, but to the compelled Christianization of
Native American children throughout the nineteenth
and into the twentieth centuries. The federal and territorial governments sought to accomplish this compelled Christianization by funding religious schools,
both Protestant and Catholic. In any event, petitioners do not dispute that the denial of funds at issue in
this case was the direct result of a charter-school
6
statute enacted by the Oklahoma legislature in 1999.
Because petitioners do not assert, and offer no evidence, that those lawmakers enacted the 1999 law to
express hostility against Catholics, any assertion that
Oklahoma’s Constitution traces to the Blaine Amendment is not only mistaken, but legally irrelevant.
ARGUMENT
A. This case should be resolved by reference to historical practice and tradition.
As a threshold matter, the first issue to address in
this case is how the Court should go about deciding
the application of the Free Exercise Clause in the circumstances here. The answer is apparent in the
Court’s consistent approach to constitutional interpretation: the controlling constitutional provision
“must be interpreted by ‘reference to historical practices and understandings.’” Kennedy v. Bremerton
Sch. Dist., 597 U.S. 507, 535 (2022) (quoting Town of
Greece v. Galloway, 572 U.S. 565, 576 (2014)).
First, the central importance of history and tradition to constitutional interpretation is settled. In recent years, the Court has repeatedly resolved constitutional questions by examining the relevant history
and tradition of the practice in question. It has done
so in determining the original public meaning of constitutional provisions in the widest range of contexts,
including the Second Amendment (in New York State
Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and
United States v. Rahimi, 602 U.S. 680 (2024)); the
Fourteenth Amendment’s Due Process Clause (in
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215
(2022)); the First Amendment’s Free Speech Clause
(in Vidal v. Elster, 602 U.S. 286 (2024)); the First
Amendment’s Establishment Clause (in Kennedy, 597
7
U.S. at 535); and the Fifth Amendment’s Confrontation Clause (in Samia v. United States, 599 U.S. 635
(2023)). It should also do so here.
Second, the range of sources that bear on this determination—that is, that are part of the generally accepted method of historical inquiry that sheds light on
the meaning ascribed to a provision by contemporaries—also is clear. It will sometimes be apparent from
the plain constitutional text, or from the Framers’ unambiguous statement of intent regarding the meaning
of the text, that a provision should be understood in a
way that directly resolves the case. But when the
Framers’ understanding of the meaning of a constitutional provision is not expressly stated with respect to
a particular practice—as is true of the school-funding
question in this case—history and tradition illuminate original public meaning by showing what people
thought the applicable constitutional provision meant
(and didn’t mean) at the relevant time. See Elster, 602
U.S. at 324 (Barrett, J., concurring in part); Rahimi,
602 U.S. at 739 (Barrett, J., concurring). In that way,
history can determine the “original contours” of a
right. Rahimi, 602 U.S. at 739 (Barrett, J., concurring); see also Aaron Tang & Ethan Hutt, “Original
History” and the Free Exercise Case for Religious
Charter Schools, 103 Wash. U. L. Rev. (forthcoming
2026) (manuscript at 12), https://perma.cc/5VYZPGBJ.
Relevant to this inquiry is “historical practice, historical precedent, historical word usage, historical
context, and tradition.” Randy E. Barnett & Lawrence
B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 Nw. U.
L. Rev. 433, 480 (2023) (“For originalists, consideration of such evidence of history and tradition is
8
mandatory, not optional. * * * [T]his entails that they
are obligated to consider all the relevant evidence of
original meaning in good faith.”). Tradition, as the
Court has suggested, is a “practice that was accepted
by the Framers and has withstood the critical scrutiny
of time and political change.” Town of Greece, 572 U.S.
at 577; see American Legion v. American Humanist
Ass’n, 588 U.S. 29, 63 (2019) (“Where categories of
* * * practices with a longstanding history follow in
that tradition, they are likewise constitutional.”); see
also Walz v. Tax Comm’n of City of N.Y., 397 U.S. 664,
680 (1970) (holding that granting tax exemptions to
churches did not violate the Religion Clauses because
“more than a century of our history and uninterrupted
practice” revealed that “at least up to 1885 this Court
* * * accepted without discussion” that church tax exemptions were constitutional).
In this exercise, state constitutional provisions,
and the application of those provisions in practice,
have particular force when determining the original
public meaning of an analogous federal constitutional
right. See Michael W. McConnell, The Origins and
Historical Understanding of Free Exercise of Religion,
103 Harv. L. Rev. 1409, 1456 (1990) [hereinafter
McConnell, The Origins] (“[S]tate constitutions provide the most direct evidence of the original understanding [of the U.S. Constitution].”); Fulton v. City of
Philadelphia, 593 U.S. 522, 575 (2021) (Alito, J., concurring) (noting that “these state constitutional provisions provide the best evidence of the scope of the right
embodied in the First Amendment”).
Third, when interpreting provisions of the Bill of
Rights as incorporated by the Fourteenth Amendment, the Court has looked to evidence both from 1791
and from 1868. Cf. Bruen, 597 U.S. at 37. It is
9
arguable that 1868 is the more relevant time. See
Kurt Lash, Respeaking the Bill of Rights: A New Doctrine of Incorporation, 97 Ind. L.J. 1439, 1441 (2022);
see also Bruen, 597 U.S. at 37-38 (acknowledging that
“there is an ongoing scholarly debate on whether
courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth
Amendment was ratified in 1868 when defining its
scope”). But however that may be, at a minimum, it is
settled that history leading to the Reconstruction Era
is highly relevant in casting light on, and confirming,
understandings in 1791. See Espinoza v. Montana
Dep’t of Revenue, 591 U.S. 464, 482 (2020 (“recognizing that [nineteenth-century] evidence may reinforce
an early practice”); see also National Rifle Ass’n v.
Bondi, No. 21-12314, 2025 WL 815734, at *5 (11th
Cir. Mar. 14, 2025) (Pryor, C.J.) (“[W]e may look to
historical practice from the mid-to-late nineteenth
century at least to confirm the Founding-era understanding of the Second Amendment.”).
We set out the relevant history below: it tells us
that Americans alive in both the Founding and the antebellum eras understood that the free-exercise principle does not include a right to public funding of religious private schools, even as other privately run
schools did receive public funding.
B. State and local governments declined requests for public funding from religious
schools through the nineteenth century,
and no one challenged these denials under the free-exercise provisions of state
constitutions.
Petitioners maintain that, in the early years of the
Republic, the state and federal governments
10
sometimes provided funding to religious schools. See,
e.g., No. 24-394, Pet. Br. 4-5. They are correct in this,
at least when existing religious educational institutions were the only ones capable of offering schooling.
But that is not the relevant history for purposes of resolving the free-exercise question here. To answer
that question—the one addressed below by amici—the
key is not whether public funding of religious schools
was sometimes thought constitutionally permissible;
it is whether states must fund religious schools when
government also funds other forms of education. Petitioners ignore the history on that question. Yet that
history is clear, and it answers the question in this
case: from very early in the Nation’s history, states
and cities across the country declined to fund religious
schools, even as they funded other educational institutions. Nevertheless, religious schools never challenged this practice under the free-exercise clauses
that were ubiquitous in state constitutions at the
time. The necessary conclusion is that the free-exercise right was not originally understood to include an
entitlement to public funding of religious schools.
1.
In the Founding and antebellum eras,
states did not fund religious schools on
equal terms with other private schools.
From early on, the state and federal governments
left school funding largely to local discretion. Although states (and sometimes the federal government) did provide financial support to localities for
use in operating schools during the Republic’s early
years, localities had broad leeway in their approaches.
See Tang & Hutt, supra, at 19-21. Under this model,
local officials could distribute state funds to recipients
that included religious, charitable, and privately run
schools. Id. at 20-21. Although state constitutions and
11
legislation called for the creation of free public
schools, the infrastructure to achieve that goal did not
yet exist and could not be created instantaneously. Id.
at 21-22. States therefore funded existing schools of
all kinds, even as they established their public-school
systems. Ibid.
But as state and local governments became increasingly involved in school funding, government actors across the Nation refused to fund religious
schools on equal terms with other schools. See Steven
K. Green, The Bible, the School, and The Constitution:
The Clash that Shaped Modern Church-State Doctrine
13-14 (2012) [hereinafter Green, The Bible]. States
adopted this approach to advance principles of good
governance and public accountability, as well as the
desire to foster religious tolerance rather than competition and divisiveness. Even when government officials initially funded religious schools as the only existing educational option, they soon defunded those
schools as public common schools were established.
This pattern played out across the Nation.
New York. A prominent early example of this
practice is found in New York. As that State began to
expand support for schooling at the turn of the nineteenth century, appropriating funds and empowering
local officials to disburse them, it largely directed
money to charitable schools. Carl F. Kaestle, The Evolution of an Urban School System: New York City
1750-1850, at 41-60, 68-71 (1973). In particular, the
State directed funds towards the Free School Society,
then recently incorporated to educate children who
did not have access to religious schooling. See William
Oland Bourne, History of the Public School Society of
the City of New York, With Portraits of the Presidents
of the Society 5 (1870). The Society was a private
12
corporation that received a formal charter and public
funds to provide public education to the city’s poor, essentially indistinguishable from modern-day charter
schools. See Thomas Boese, Public Education in the
City of New York: Its History, Condition, and Statistics 100 (1869).
In 1822, New York temporarily extended similar
funding to the Bethel Baptist Church, which operated
religious free schools. Green, The Bible, supra, at 4749. But in 1825, the New York Common Council unanimously decided to discontinue funding for all religious education, concerned about generating a “spirit
of rivalry” between religious groups.2 Boese, supra, at
106. In total, New York City provided partial funding
to the Bethel schools for just three years. Tang &
Hutt, supra, at 24-25 (citing Boese, supra, at 101-102).
At the time, both city and state officials understood it
to be “a violation of a fundamental principle * * * to
allow the funds of the State * * * to be subject to the
control of any religious corporation.” Green, The Bible,
at 49; see id. at 48-49 (describing the mayor and Common Council’s memorial, which warned that funding
these schools would “enlist a spirit of rivalry” and “disturb the harmony of society,” and asked rhetorically
whether disbursing funds “to religious or ecclesiastical bodies is not a violation of an elementary principle
in the politics of the State and country”). Nevertheless, there is no evidence that the Bethel Baptist
Church or other religious schools that could no longer
obtain state funds filed lawsuits challenging the
2 A state legislative committee had considered state funding of
religious charity schools but, recognizing that question as one of
local policy, left it to New York City’s Common Council to direct
the allocation of public funds to schools as it saw fit. See Green,
The Bible, at 49.
13
funding decisions or otherwise believed that they possessed a free-exercise right to such funds. Boese, supra, at 106.
That absence is especially notable because religious schools made vigorous political appeals for funding. Thus, a few decades later, a coalition of Catholic,
Jewish, and Protestant schools in New York City
sought access to public funding. See Tang & Hutt, supra, at 25-26 (citing Green, The Bible, supra, at 51, 59,
63, 106). But hewing to its established rule, the City
denied their requests. Ibid. Again, the religious
schools resisted this result on political, not constitutional, grounds, petitioning the state legislature to intervene. Ibid. But after more than a year of debate in
the legislature, the State reaffirmed the City’s refusal
to disburse funds for religious schooling. Id. at 26 (citing Green, The Bible, supra, at 68). Despite this loss,
the schools once more did not assert a free-exercise
claim. Ibid.
New Jersey. New Jersey’s example points in the
same direction. New Jersey adopted a law funding
some religious schools that had been established before 1838, but not other religious schools. Tang &
Hutt, supra, at 27. Potential claimants debated
whether all denominations could have access to the
funds or whether the law meant to designate only
Quaker schools as eligible. Id. at 28. Those administering the program ultimately made funds available
only to Quaker schools. Id. at 28-29. Thus, the law created unequal access to funding for religious schools,
across time and denominations. Yet at a time when
tuition was critically important for the functioning of
all schools (id. at 31), the debate about the scope of
this law did not include concern over its constitutionality, even by those who supported equal funding for
14
all religious schools. Id. at 29-30. Instead, discussion
of judicial intervention addressed only the proper interpretation and application of the statute. Id. at 31.
Other States. The histories of school funding in
New York City and New Jersey typify similar episodes
in the historical record across the Nation. See Tang &
Hutt, supra, at 32-35; see generally Richard James
Gabel, Public Funds for Church and Private Schools
373 (1937) (providing more examples). For example,
California funded Catholic charitable schools for two
years from 1851 to 1853, but then changed its law to
prevent this funding. See Tang & Hutt, supra, at 32.
Yet there was no lawsuit based on the free-exercise
right, even as California continued to fund nonreligious schools. Id. at 33. Similarly, Illinois prohibited
communities from funding religious education in
1872—but again, there was no free-exercise litigation,
even as religious groups lost the battle for taxpayer
funds that ultimately went to nonreligious schools. Id.
at 34-35; see Ill. Const. of 1870, art. VIII, § 3. Other
states, too, followed this pattern. See Tang & Hutt,
supra, at 33-35 (describing similar events in Pennsylvania, Massachusetts, Alabama, and Indiana); see
generally Gabel, supra (providing more examples of
the same).
2.
Religious schools that were denied funding did not challenge those denials under
the free-exercise provisions of state constitutions.
The absence of litigation challenging the denial of
funding for religious schools is especially notable because if there had been a constitutional basis for those
sorts of challenges—that is, had it been thought that
free-exercise principles conferred a right to public
15
funding for religious schools on the same basis as
other schools that received public funds—those claims
could (and presumably would) have been asserted. Before the adoption of the Fourteenth Amendment, the
constitutions of all but one of the states included a free
exercise or similar religious-liberty clause. Some of
these provisions used language similar to the U.S.
Constitution’s Free Exercise Clause; others were written in terms that were more detailed or expansive;
and all embraced a similar free-exercise principle. See
Appendix, infra (citing provisions); see also Craig B.
Mousin, State Constitutions and Religious Liberty, in
Religious Organizations in the United States: A Study
of Identity, Liberty, and the Law 167, 167-168 (James
A. Serritella, et al., eds., 2006). Had it been thought
that this principle supported a claim to public funding
for religious schools, those that were denied funding
surely would have advanced a challenge. But none
did.
This lack of school-funding lawsuits is particularly instructive because claimants frequently did
bring, and win, free-exercise or religious-liberty suits
on other subjects during that same time, grounded on
state constitutional free-exercise provisions.
In New York itself, a Catholic litigant won a major
free-exercise case in 1813, even before the City denied
funding to schools operated by the Bethel Baptist
Church. See People v. Philips, 1 W.L.J. 109, 112-113
(Gen. Sess., N.Y. 1813), reprinted in William
Sampson, Catholic Question in America 5 (1813).
There, the New York Court of General Sessions heard
a case arising from the trial of a man alleged to have
confessed to his priest that he had committed a robbery. Sampson, supra, at 9-12. The defense argued
that requiring the priest to testify violated the
16
religious-liberty clause of the New York Constitution.
Id. at 44-51. The court agreed, recognizing the priestpenitent privilege on free-exercise grounds. Philips, 1
W.L.J. at 112-113; see also Privileged Communications to Clergymen, 1 Cath. L. 199, 206-209 (1955). A
legal challenge to the City’s school-funding decisions
would have been evaluated under the same constitutional provision.
Other examples of this sort are legion. In Commonwealth v. Cronin, 2 Va. Cir. 488, 498 (1855), the
Virginia Circuit Court followed Philips in accepting a
priest-penitent privilege on free-exercise grounds
based on the Virginia and federal Constitutions. In Ex
parte Newman, the California Supreme Court reversed a Jewish man’s conviction for violating a California law mandating observance of the Sunday Sabbath. 9 Cal. 502, 502 (1858). The court drew on the
Free Exercise Clause of the California Constitution to
hold the law unconstitutional. Ibid. See also Commonwealth v. Wolf, 3 Serge. & Rawle 48, 51 (Pa. 1817) (rejecting a challenge to a similar Sunday Sabbath law
under the Pennsylvania Constitution).
Indeed, religious litigants even appealed to the
federal Free Exercise Clause. In Permoli v. Municipality No. 1 of the City of New Orleans, arising in Louisiana (the one State that did not then have a state constitutional free-exercise clause), a Catholic priest
challenged a fine assessed against him for performing
funeral rites. 44 U.S. 589 (1845); see Michael W.
McConnell, Schism, Plague, and Late Rites in the
French Quarter: The Strange Story Behind the Supreme Court’s First Free Exercise Case, in First
Amendment Stories 39, 39 (Richard W. Garnett & Andrew Koppelman eds., 2012). He alleged that the ordinance prohibiting the rites violated the Free Exercise
17
Clause of the U.S. Constitution. Permoli, 44 U.S. at
591. Although this Court ultimately rejected his claim
on the ground that the Free Exercise Clause did not
apply to the states (id. at 606), the case evinced a willingness to litigate over free-exercise rights. That willingness puts the failure to do so in the school-funding
context into sharp relief.
This history provides two lessons for this case.
First, that cities and states frequently excluded religious schools from public funding tells us that the
practice generally was understood to be legally unobjectionable. Second, the failure of litigants to challenge the exclusion confirms that this denial of funding was thought to be consistent with constitutional
free-exercise principles even by religious school leaders themselves. See generally McConnell, The Origins, supra, at 1511-1512 (noting that the absence of
“substantial evidence that [practices] were considered
constitutionally questionable,” even by “opponents” of
the practice, is relevant to interpretation of a constitutional provision).
This is precisely the sort of historical pattern the
Court found dispositive in Dobbs, Vidal, and Samia.
As the Court put it in Dobbs, when states began to
take action banning abortion in the nineteenth century, “no one, as far as we are aware, argued that the
laws they enacted violated a fundamental right.” 597
U.S. at 253. The same is true of the refusal to fund
religious schools at issue here. The Court should follow this history, to hold that public funding of religious schools is outside the scope of the Free Exercise
Clause.
18
3.
Exclusion of religious schools from public
funding early in the nineteenth century is
not attributable to animus against Catholics.
This historical evidence of contemporaneous understandings of the free-exercise right is not undermined by the anti-Catholic animus that, the Court has
recognized, bears on legal developments at other
times and in other contexts, particularly in the debate
around the proposed “Blaine Amendment.” See Espinoza, 591 U.S. at 482; id. at 497-507 (Alito, J., concurring). That animus is not reflected in the pre-Civil
War religious-school funding history, which took place
long before the Blaine Amendment and responded to
a very different set of motivations. And it says nothing
about the contemporaneous understanding of the
scope of the free-exercise principle. This is so for several reasons.
First, history compels the conclusion that, in the
schooling context, states generally moved toward a
no-funding approach to religious schools that was
rooted not in animus but in good-faith policy judgments. The Framers of the U.S. Constitution themselves showed an early embrace of the no-funding
principle. As early as the 1770s, Thomas Jefferson
and James Madison classified government financial
support for religion as “infringements on religious liberty and rights of conscience.” Steven K. Green,
‘Blaming Blaine’: Understanding the Blaine Amendment and the ‘No-Funding’ Principle, 2 First Amend.
L. Rev. 107, 114 (2003). As noted above, by the 1820s
many state officials clearly rejected the funding of religious schools, a trend that was recognized throughout the nineteenth century. See Steven K. Green, The
Insignificance of the Blaine Amendment, 2008 B.Y.U.
19
L. Rev. 295, 300 [hereinafter Green, The Insignificance].
This no-compelled-support-of-religion principle
found very early and widespread recognition in state
constitutions. A notable and influential version appeared in the Pennsylvania Constitution of 1776. See
Green, The Bible, supra, at 69. The principle was then
embraced in clauses in twenty-seven state constitutions, which restricted public appropriations or draws
from state treasuries for support of religious institutions. Considered together, these “no compelled support,” “no-funding,” and “public purpose/control”
clauses represent a long-standing practice of not funding religious education, so as both to ensure that the
government does not advance religious doctrine and
to guarantee the financial security of public education. Green, The Bible, supra at 46.
This history belies an origin in religious animus:
the no-funding principle was animated not by hostility
toward a particular denomination (or toward religion
generally) but by ideals of good governance and public
accountability, as well as by the desire to foster religious tolerance and avoid competition for scare public
funds. See Green, The Insignificance, supra, at 310315. For example, the no-funding principle was understood as a means to standardize education by enhancing state control over schools. Id. at 310 (citing Editor’s Table, 7 Harper’s New Monthly Mag. 269, 269
(1853)). Rather than express hostility towards religion
(either generally or regarding particular faiths), the
principle’s proponents sought to respect religion while
avoiding strife between religious groups, which they
believed would naturally follow from disputes over
school funding. See id. at 311 (citing Bourne, supra, at
140 (“If all sectarian schools be admitted to the receipt
20
of a portion of a fund sacredly appropriated to the support of common schools, it will give rise to a religious
and anti-religious party, which will call into active exercise the passions and prejudices of men.”)). This
goal, no-funding advocates understood, was based on
constitutional free-exercise values. See Bourne, supra, at 52-55, 88.
Second, the pattern of activity at issue does not
map onto an explanation rooted in anti-Catholic animus. Many of the earliest examples of religious school
funding denials are clearly in accord with these neutral principles, such as New York City’s 1825 refusal
to fund Bethel Baptist Church. Green, The Insignificance, supra, at 311. Six years later, the New York
Common Council denied public funding to a Methodist
school. Ibid. It would be odd to conclude that the denial of funds to a Baptist congregation and Methodist
school was the product of anti-Catholic animus. See
Green, The Bible, supra, at 50-53. Moreover, many of
the state limits on funding for religious schools noted
above predate the Blaine Amendment by close to half
a century. For example, Massachusetts adopted a constitutional provision limiting funding for religious
schools in 1827. Id. at 69 & n.80. Michigan adopted an
express constitutional provision against funding religious schools in 1835. Id. at 70 & n.82. Thereafter, several states followed the Michigan model, including
Wisconsin (in 1842); Indiana (in 1851); Ohio (in 1851);
and Minnesota (in 1857). Id. at 70 & n. 83. These provisions then inspired similar provisions in the Oregon
and Kansas constitutions, adopted in 1857 and 1858
respectively. Id. at 70. Thus, although anti-Catholic
animus explains aspects of the Blaine Amendment
and should be condemned accordingly, it is temporally
21
inapplicable to the history that is determinative in
this case.
Finally, the prevalence of successful free-exercise
litigation brought by Catholic litigants, without any
suits on school funding, further undercuts the notion
of anti-Catholic animus as an explanation for the denial of funding to religious schools in the first half of
the nineteenth century. During this time, religious entities and individuals—notably including Catholic litigants—challenged on state constitutional grounds
state and local laws that were grounded in religious
animus or otherwise disadvantaged particular denominations. In this context, the failure to bring any
such suit to challenge school-funding denials can be
explained only as a reflection of belief and common
understanding that such denials were consistent with
free-exercise principles.
C. The Oklahoma Constitution’s “no-funding” provision and charter-school statute
are not products of anti-Catholic bigotry.
Petitioners and certain of their amici nevertheless
seek support in their characterization of Article II,
Section Five of the Oklahoma Constitution—that Constitution’s no-funding provision—as “part and parcel
of the broader anti-Catholic Blaine efforts.” No. 24394, Pet. Br. 7; Nos. 24-394, -396, Br. of the Rutherford Inst. as Amicus Curiae in Support of the Petitioners, at 12-15. This argument does not advance their
position.
As an initial matter, even if the description of the
Oklahoma Constitution offered by petitioners and
their amici were accurate, it should not affect the resolution of this case. For one thing, Oklahoma’s denial
of the funds at issue here rests not on the Oklahoma
22
Constitution’s no-funding provision, but on the state
charter-school statute enacted in 1999, almost a century after adoption of the state Constitution. See
Drummond v. Oklahoma Statewide Virtual Charter
School Board, 558 P.3d 1, 7 (2024). And there is no
suggestion in petitioners’ briefing (or in the record of
this case or in the legislative history of the statute)
either that Oklahoma’s Charter Schools Act rests on
the state constitutional no-aid provision or that the
statute was itself motivated by anti-Catholic animus.
Moreover, for the reasons explained above (at 18-21),
the directly relevant history here is not that of the
late-nineteenth-century federal and follow-on state
Blaine Amendments; it is that of school funding practices in the Founding-era and antebellum period,
when religious schools were routinely denied funds on
equal terms with their counterpart schools without legal challenge.
But petitioners’ Blaine Amendment contention
also is wrong for another reason: it is factually false
and legally insupportable. The framers of the Oklahoma Constitution’s no-funding provision were inspired not by Senator Blaine and his supporters, but
by their own experience with the publicly funded religious re-education of Native American children, as
well as by pre-Blaine state constitutions. The Oklahoma framers sought to ensure that citizens of their
new State, including its Native residents, could enjoy
religious freedom after decades of religious repression
through religious re-education. Given the vastly different histories and motivations of the Oklahoma
Constitution’s Article II, Section Five and the Blaine
Amendment, the Blaine Amendment’s history has no
bearing on Oklahoma’s no-funding provision and says
nothing about the State’s charter-school law.
23
1.
The no-funding provision of the Oklahoma Constitution is a response to the
compelled religious indoctrination of Native American children, not a Blaine
Amendment.
This Court and individual Justices have recounted the history of the 1875-1876 Blaine Amendment, which was used to secure anti-Catholic votes for
Senator James G. Blaine’s presidential campaign. See
Espinoza, 591 U.S. at 482; id. at 497-507 (Alito, J.,
concurring). Although Senator Blaine’s gambit failed
politically, his eponymous amendment would live on
in the Enabling Act of 1889, which admitted Montana,
North Dakota, South Dakota, and Washington into
the Union. See Act of Feb. 22, 1889, ch. 180, 25 Stat.
676. Section Four of the Enabling Act required the
newly admitted states to establish “systems of public
schools * * * free from sectarian control,” language
that mirrored Senator Blaine’s amendment. Ibid.
By the time Congress debated the Enabling Act of
1906 that would admit Oklahoma to the Union, however, the people and political pressures that advanced
the Blaine Amendment held far less sway. Just six
members of the 59th Congress that voted to admit Oklahoma had cast a congressional vote in favor of the
Blaine Amendment. By contrast, forty-three Blaine
supporters had considered the Enabling Act of 1889
and the “baby-Blaine” language it contained. See Biographical Directory of the United States Congress, Library of Congress, https://bioguide.congress.gov (data
and processing code on file).
Although some States, like those admitted by the
Enabling Act of 1889, have constitutional provisions
that are descendants of Senator Blaine’s amendment,
24
Oklahoma is not one of them. Instead, Oklahoma’s
framers drafted Article II, Section Five of the Oklahoma Constitution in a different demographic and political context. They drew upon a wholly distinct set of
Native experiences and a set of documents that predate the Blaine Amendment.
First, the drafters of the Oklahoma Constitution
relied on pre-Blaine Amendment state constitutions
and history when drafting Article II, Section Five of
the Oklahoma Constitution. The Oklahoma and Indian Territories became home to many Native American Tribes after federal troops forcefully relocated
them in the 1830s. See Roy Gittinger, The Formation
of the State of Oklahoma (1803-1906), at 9-22 (1917).
With the Tribes’ physical removal from the East Coast
complete, President Grant sought to implement a
“peace policy” with relocated Native Americans that
would pacify the tribes and move them to adopt U.S.style institutions. See Henry E. Fritz, The Making of
Grant’s “Peace Policy,” 37 Chrons. of Okla. 411, 417421 (Winter 1959-60), https://perma.cc/Q8V7-RPCV.
A major pillar of this policy was the compelled “Christianization” of Native children through religious education. See id. at 416-417; Francis Paul Prucha, The
Churches and the Indian Schools, 1888-1912, at ix
(1979). Both Protestant and Catholic organizations
worked to implement this plan, establishing boarding
schools for Native children across Oklahoma, Indian,
and similar territories. See Bryan Newland, Federal
Indian Boarding School Initiative Investigative Report 6 (2022) (identifying 408 Federal Indian Boarding
Schools), https://perma.cc/664A-G652.
It was this history of publicly funded religious reeducation that ultimately led to Oklahoma’s no-funding state constitutional provision. Informed by forty
25
years of compelled attendance at Christian schools, a
group from Indian Territory gathered to draft what it
hoped would become the Constitution of the State of
Sequoyah. See Amos D. Maxwell, The Sequoyah Convention 62 (1953). The convention that produced the
draft Sequoyah Constitution was the result of years of
work by Native American leaders in Indian Territory.
See id. at 63. Many of these leaders would become delegates to the Oklahoma Constitutional Convention
one year later, including the Oklahoma Convention’s
president, William Murray. See ibid.; Proceedings of
the Constitutional Convention of the Proposed States
of Oklahoma 15 (1907), https://perma.cc/8MHPHPWD.
Second, although the Sequoyah Constitution did
not result in Sequoyah’s statehood, it directly inspired
parts of the Oklahoma Constitution, which led to Oklahoma statehood just two years later. In particular,
the Oklahoma Constitution’s Article II, Section Five
echoes the Sequoyah Constitution’s Article I, Section
Six. The Sequoyah provision provided:
No money shall ever be taken from the public
Treasury, directly or indirectly, in aid of any
church, sect, or denomination of religion, or in
aid of any priest, preacher, minister, or
teacher thereof, as such. No preference shall
be given to, nor any discrimination made
against, any church, sect, or creed of religion,
or any form of religious faith or worship.
Sequoyah Const. art. I § 6, in 1 The Okla. Red Book
624 (Seth K. Corden & W.B. Richards eds., 1912),
https://perma.cc/TZ4B-AMC2. Section Six was drafted
by the Sequoyah Convention’s Committee on the Preamble, Declaration of Rights, and Powers of
26
Government. See Maxwell, supra, at app. E. The chair
of the committee, Robert L. Owen, as well as another
member, George W. Grayson, were Native Americans.
See Kenny Lee Brown, Robert Latham Owen, Jr.: His
Careers as Indian Attorney and Progressive Senator 3
(1985) (Ph.D. dissertation, Okla. State Univ.),
https://perma.cc/MB6X-SEAG; George Washington
Grayson, A Creek Warrior for the Confederacy: The
Autobiography of Chief G. W. Grayson 34-37 (W. David Baird ed., 1988).
The Native American delegates to the Sequoyah
Convention were well aware of the impact of government-funded religious instruction on Native American children and the threat to Native religious freedom it entailed. See generally Rennard Strickland,
The Indians in Oklahoma (1980) (discussing the impact of forced religious schooling on Native practices
and beliefs); Prucha, supra, at 5 (same). The Sequoyah
Constitution’s Section Six enshrined these men’s desire to ensure that the hoped-for Sequoyah government respected all forms of religious faith by carefully
separating religion and government.
The same desire led the delegates to the Oklahoma Constitutional Convention to include similar
language in Article II, Section Five of the Oklahoma
Constitution. The clear link between the earlier Sequoyah provision and Article II is seen in both sections’ broad prohibitions on the expenditure of public
funds for religious purposes. Far from the narrow, education-only focus of the Blaine Amendment, the Sequoyah and Oklahoma provisions sought to ensure religious tolerance by separating religion and government across all aspects of society.
27
Third, this desire to enforce a wide-reaching separation of church and state expressly drew from a parallel source: not anti-Catholic animus or Senator
Blaine’s political expediency, but the Oklahoma
Framers’ understanding of older state constitutions
and the historical experiences, both European and
Native, that informed them.
Albert H. Ellis, who served as the Second Vice
President of the Oklahoma Constitutional Convention
and the Speaker Pro Tempore of the First State Legislature of Oklahoma, attributed Section Five to the
Convention’s knowledge of “the history of the union of
Church and State in Europe and in New England in
Colonial days.” See Albert H. Ellis, A History of the
Constitutional Convention of the State of Oklahoma,
at I, 135 (1923). Given this history, the Convention
“made it impossible to appropriate or give to any
church denomination * * * the money or property of
the public.” Ibid. Nowhere did Ellis mention Senator
Blaine, his amendment, or the Catholic Church.
2.
The Oklahoma Supreme Court consistently has recognized that the Oklahoma
Constitution’s no-funding provision is not
a Blaine Amendment.
The Oklahoma Supreme Court has for over a century recognized that Article II, Section Five of the Oklahoma Constitution is not a Blaine Amendment.
Chief Justice Robert L. Williams, a delegate to the
state constitutional convention, provided the first judicial interpretation of the provision in Connell v.
Gray, 127 P. 417, 418 (Okla. 1912). See id. at 421.3
3 Justices Kane, Hayes, and Williams were delegates to the Ok-
lahoma Constitutional Convention. A man with the same last
name and initials as Justice Turner was also a delegate. See
28
Chief Justice Williams traced Article II, Section Five’s
lineage to the 1786 Virginia law introduced by
Thomas Jefferson, and subsequently incorporated
into Virginia’s 1830 Constitution, entitled “[a]n act for
establishing religious freedom.” See ibid. Like Article
II, Section Five of the Oklahoma Constitution, Article
III, Section Eleven of the Virginia Constitution of
1830 demonstrated a commitment to protecting religious freedom by separating government from religion. Ibid. Section Eleven guaranteed that no “man
[would] be enforced, restrained, molested, or burdened in his body or goods, or otherwise suffer, on account of his religious opinions or belief.” Ibid. It paired
this forceful statement of religious freedom with an
equally clear prohibition against “any law requiring
or authorizing * * * any tax for the erection or repair
of any house for public worship, or for the support of
any church or ministry.” Ibid.
Chief Justice Williams further connected Oklahoma’s Section Five to the state constitutions of Michigan (1835) and Missouri (1875), both of which predated the Blaine Amendment and also balanced religious freedom with a separation of church and state.
127 P. at 421.4 As Chief Justice Williams pointed out,
Proceedings of the Constitutional Convention of the Proposed
States of Oklahoma 482-485 (1907) (identifying delegates).
4 Article I, Section Four of the Michigan Constitution of 1835 provides that “[e]very person has a right to worship Almighty God
according to the dictates of his own conscience,” while Section
Five prohibits “draw[ing] from the treasury for the benefit of religious societies, or theological or religious seminaries.” Mich.
Const. of 1835, https://perma.cc/8723-CU2Y. Similarly, Missouri’s 1875 constitution states that “all men have a natural and
indefeasible right to worship Almighty God according to the dictates of their own conscience.” Mo. Const. of 1875 Art. II, § 5. Another provision also mandated that “no money shall ever be
29
the influence of Missouri’s constitution on the Oklahoma framers is especially evident because the text of
Missouri’s Article II, Section Seven “appears to be
identical” with Oklahoma’s Article II, Section Five.
Ibid.; see also Prescott v. Oklahoma Capitol Preservation Commission, 373 P.3d 1032, 1052 (Okla. 2015)
(Gurich, J., concurring).
Chief Justice Williams’ Connell opinion therefore
provides a direct window into the minds of at least
three framers of the Oklahoma Constitution. His opinion traces the text and purpose of Section Five
through 125 years of state constitutional provisions.
This history places Section Five into the well-settled
tradition of state efforts to ensure religious liberty by
carefully separating religion and government.
Moreover, in 2015, the Oklahoma Supreme Court
re-affirmed Section Five’s lineage in Prescott v. Oklahoma Capitol Preservation Commission, 373 P.3d
1032 (Okla. 2015). Several of the Court’s justices
wrote separately to emphasize that Section Five is not
a Blaine amendment. See Prescott, 373 P.3d at 1036
(Edmonson, J. concurring); id. at 1040 (Taylor, J., concurring); id. at 1051-1052 (Gurich, J., concurring); id.
at 1057 (Combs, V.C.J., dissenting from denial of rehearing).
In short, from almost immediately after the ratification of the Oklahoma Constitution into the twentyfirst century, the Oklahoma Supreme Court has consistently traced the no-funding provision of the Oklahoma Constitution to Jefferson and much earlier state
taken from the public treasury, directly or indirectly, in aid of
any church, sect or denomination of religion, or in aid of any
priest, preacher, minister or teacher thereof, as such * * *.” Id. at
Art. II, § 7.
30
constitutions—and not to the Blaine Amendment.
Thus, even if the State in this case had not based its
denial of funding on its 1999 charter-school law—a
statute that no party argues is the product of antiCatholic animus—the Oklahoma Constitution’s nofunding provision would offer no support to petitioners.
CONCLUSION
For the foregoing reasons, the judgment of the Oklahoma Supreme Court should be affirmed.
Respectfully submitted.
EUGENE R. FIDELL
Yale Law School
Supreme Ct. Clinic
127 Wall Street
New Haven, CT 06511
CHARLES A. ROTHFELD
Counsel of Record
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
crothfeld
@mayerbrown.com
STEVEN K. GREEN
Willamette University
900 State Street, S.E.
Salem, Oregon 97301
Counsel for Amici Curiae
APRIL 2025
APPENDIX
1a
APPENDIX
Before the Civil War, the constitutions of all but
one of the 34 States to join the Union included a provision that protected the free exercise of religion.5
These provisions can generally be characterized as
(1) those that expressly protected a right to conscience
or free exercise; (2) those that prohibited deprivations
on the basis of religion; and (3) those that required
equal protection of all religions. Despite the differences in form, each of these provisions reflected principles also recognized in the First Amendment’s Free
Exercise Clause. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harv. L. Rev. 1416 (1990).
Category 1:
Right to Conscience or Free Exercise
State
Provision
Delaware
Article I, Constitution of 1831
Pennsylvania Article I, Section III Constitution of
1838
Connecticut
Article I, Section III Constitution of
1818
South
Carolina
Article VIII, Section I Constitution
of 1790
Virginia
Declaration of Rights, Article XVI
Constitution of 1830 (similar in
constitution of 1851)
5 Those states not yet admitted (in order of eventual admission)
were West Virginia, Nevada, Nebraska, Colorado, North Dakota,
South Dakota, Montana, Washington, Idaho, Wyoming, Utah,
Oklahoma, New Mexico, Arizona, Alaska, and Hawaii.
2a
State
Provision
New York
Article VII, Section III Constitution
of 1821 (similar in subsequent
versions)
North
Carolina
Declaration of Rights, Article
XXXIV Constitution of 1776
Rhode
Island
Article I, Section III Constitution of
1842
Vermont
Chapter 1, Article III Constitution
of 1793
Tennessee
Article XI, Section III Constitution
of 1796 (same in constitutions of
1834)
Ohio
Article VIII, Section III Constitution of 1802 (same in Constitution of 1851)
Indiana
Article I, Section III Constitution of
1816 (similar in Constitution of
1851)
Mississippi
Article I, Section III Constitution of
1817 (same in Constitution of
1832)
Illinois
Article VIII, Section III Constitution of 1818 (same in Constitution of 1848)
Maine
Maine Constitution of 1820, Article
I, Section III
Missouri
Article XIII, Section IV Constitution
of 1820
Florida
Article I, Section III Constitution of
1838
3a
State
Provision
Texas
Article I, Section IV Constitution of
1845 (similar in Constitution of
1836)
Iowa
Article II, Section III Constitution
of 1846 (same in Constitution of
1857)
Wisconsin
Article I, Section XVIII Constitution
of 1848
California
Article I, Section IV Constitution of
1849
Minnesota
Article I, Section XVI Constitutions
of 1857 (both versions)
Oregon
Article I, Section II Constitution of
1859
Kansas
Bill of Rights, Section VII Constitution of 1859
Category 2:
Prohibiting Deprivations on the
Basis of Religion
State
Provision
New Jersey
Article I, Section IV Constitution of
1844
Georgia
Article IV, Section X Constitution of
1798 (similar in Constitution of
1861)
New
Hampshire
Bill of Rights, Article V Constitution
of 1784
Kentucky
Article X, Section IV Constitution of
1799 (similar in constitution of
1850)
4a
State
Provision
Alabama
Article I, Sections V-VI Constitution
of 1819
Arkansas
Article II, Section IV Constitution of
1836
Michigan
Article I, Section VI Constitution of
1835 (same and expanded in Constitution of 1850)
Category 3:
Equal Protection for All Religions
State
Provision
Massachusetts
Articles of Amendment, Article XI
Constitution of 1780
Maryland
Declaration of Rights, Article XXXIII
Constitution of 1776 (similar in
Constitution of 1851)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.