A Mandate to Discriminate?: Why the Establishment Clause Does Not Justify the Exclusion of Religious Charter Schools – Erin Hawley

Posted by JLPP on Apr 25, 2025 in Per Curiam

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A Mandate to Discriminate?: Why the Establishment Clause Does Not Justify the Exclusion of Religious Charter Schools.

Erin Hawley*

Introduction

In a pair of consolidated cases, Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond, the Supreme Court will consider whether the Establishment Clause authorizes Oklahoma to discriminate against religious groups who seek to participate in the state’s charter-school program alongside secular groups.

Oklahoma invites any individual or organization to apply to operate a charter school. In 2023, St. Isidore of Seville, a nonprofit organization composed of two Catholic dioceses, applied to be a virtual charter school. The Statewide Virtual Charter School Board found that St. Isidore’s application satisfied all the statutory criteria and approved the school. But the Supreme Court of Oklahoma rescinded that approval, finding that the Establishment Clause required the state to single out religious charter schools for exclusion. Indeed, the court used the Establishment Clause as a get–out–of–strict–scrutiny–jail–free card, ruling that this discrimination was mandatory even if the state had violated St. Isidore’s Free Exercise rights.

The Oklahoma Supreme Court fundamentally misinterpreted the Establishment Clause, distorting its meaning to justify unconstitutional discrimination against religion. Not only did the Court improperly put St. Isidore in a “vise between the Establishment Clause on one side and the . . . Free Exercise Clause[] on the other,”[1] but the Court failed to apply the Establishment Clause in accordance with recent Supreme Court precedent, which demands that “the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”[2] Properly interpreted, this means that “’the line’ that courts and governments ‘must draw between the permissible and the impermissible’ has to ‘accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.’”[3]

This essay will argue that a religious charter school does not violate the Establishment Clause. Part I will discuss Drummond’s background and the reasoning behind the Oklahoma Supreme Court’s conclusion that St. Isidore must be excluded from a publicly available program. Part II will examine the original understanding of religious establishment and show that the purported tension between the Establishment Clause and the Free Exercise Clause is inconsistent with original meaning. Part III will then turn to the extensive history of state and federal education funding in America, demonstrating that governments consistently partnered with religious groups to accomplish their educational goals. It will show that during the eighteenth and nineteenth centuries, religious education was viewed as integral to good government, not as a threat to be excluded on antiestablishment grounds. Finally, Part IV will examine the Supreme Court’s current caselaw to demonstrate that an antiestablishment interest does not justify excluding religious organizations from an otherwise generally available benefit, especially when parents have discretion to send their children to the religious school and the school benefits only upon the exercise of that private choice.

I.                 The Oklahoma Supreme Court held that a Catholic charter school violates the Establishment Clause.

Oklahoma ranks second to last in the nation in education today and has struggled for decades.[4] In 1999, in an attempt to improve student learning and increase educational options, the Oklahoma legislature authorized the Oklahoma Charter Schools Act. The Act invites any individual or private organization to submit an application to run a brick–and–mortar or a virtual charter school.[5] Any charter school must be free and open to any Oklahoma child.[6] To encourage innovative teaching and additional academic choices, the Act exempts charter schools from the majority of the bevy of regulations that apply to public schools.[7] Each school is also free to adopt its own “personnel policies, personnel qualifications, and method of school governance.”[8] In fact, charter schools are independently governed by a self-selected board.[9]

Thanks to the Oklahoma Charter Schools Act, charter schools in Oklahoma are improving educational outcomes and offerings. Students who attend charter schools in Oklahoma outperform students in local, government-run  public schools on national achievement tests.[10] Today, there are over thirty charter schools in Oklahoma that provide Oklahoma families access to a range of educational options, including schools that focus on science, engineering, math, fine arts, language immersion, tribal identity, and more.[11]

There is just one catch: Oklahoma’s Charter School Act, as well as the Oklahoma Constitution, disqualifies religious groups from the otherwise open invitation for individuals and private entities to apply. The Act bans any charter school “affiliated with a nonpublic sectarian school or religious institution.”[12] And the law mandates that charter schools “be nonsectarian in [their] programs, admission policies, employment practices, and all other operations.”[13] The Oklahoma Constitution similarly requires “a system of public schools . . . free from sectarian control.”[14]  The state’s constitution also provides that no “public money” shall be used “for the use, benefit, or support of any sect, church, denomination, or system of religion . . . or sectarian institution as such.”[15]

Believing these religious exclusions to violate the Free Exercise Clause, two private religious entities, the Archdiocese of Oklahoma City and the Diocese of Tulsa, created a nonprofit corporation, St. Isidore of Seville Virtual Charter School (“St. Isidore”), and submitted a charter school application. In its application, St. Isidore was upfront about its desire to provide a high-quality religious education. St. Isidore sought to create a school “dedicated to academic excellence” that would “‘educate the entire child: soul, heart, intellect, and body’ in the Catholic tradition.”[16] St. Isidore promised to welcome “any and all students,” including “those of different faiths or no faith.”[17]

It is “undisputed” that St. Isidore met the “requirements for operating a charter school aside from its religious affiliation.”[18] Furthermore, the State Charter School Board has a “dut[y]” to “[a]pprove quality charter applications that meet identified educational needs and promote a diversity of educational choices.”[19] Selection criteria include “high quality academic programming,” a record of operating successful charter schools, and “the collective experience” of the school’s governing board.[20] St. Isidore’s application set out its intention to use a high-quality curriculum, and its two Diocesan members have experience running schools with a proven track record of academic success.[21]

The State Charter School Board approved the application, concluding that the statutory and constitutional exclusion of religious groups was unconstitutional.[22] But shortly after, the Oklahoma Attorney General filed a mandamus petition with the Oklahoma Supreme Court that asked the Court to rescind that approval.[23] He warned that the Board had violated the Establishment Clause and “pave[d] the way for an onslaught of sectarian applicants for charter[ ]” schools, including religions he thought that Oklahomans “would find reprehensible,” such as “extreme sects of the Muslim faith.”[24]

The Oklahoma Supreme Court rescinded St. Isidore’s approval, finding that it violated the Oklahoma Constitution, the Charter School Act, and the federal Establishment Clause.[25] The court found that St. Isidore was “a governmental entity and a state actor” and thus unable to claim any protection from the Free Exercise Clause.[26] While that conclusion is outside the scope of this essay, it is wrong; the Supreme Court has cautioned against depriving private parties of their constitutional rights by labeling them as state actors.[27] But the court’s fundamental error, and the focus of this essay, was its erroneous interpretation of the Establishment Clause. Even after assuming for the sake of argument that St. Isadore was a private actor possessing Free Exercise rights, the Oklahoma Supreme Court hewed to an outdated no-aid view of the Establishment Clause and embraced a misguided theory of the Religion Clauses that pits them against one another. It held that St. Isidore’s free exercise rights could “not override the legal prohibition under the Establishment Clause.”[28] It viewed the Establishment Clause as forbidding the use of public money for a religious charter school and thus found that Oklahoma’s antiestablishment interest justified any Free Exercise violation because it was “a compelling governmental interest that satisfies strict scrutiny.”[29] In short, the Oklahoma Supreme Court pitted the Religion Clauses against one another, using the Establishment Clause to trump St. Isidore’s Free Exercise Clause protections.

II.  Historical Understanding of the Establishment Clause

According to the Oklahoma Supreme Court, the Establishment Clause is in tension with the Free Exercise Clause.[30] However, this formulation does not reflect the Religion Clauses’ original understanding. The Framers intended the Clauses to work in tandem to protect liberty of conscience; the Establishment Clause was meant to oppose coercion that diminished religious freedom, not to place limits on free exercise protections. The historical understanding of establishment shows that an antiestablishment interest was never thought to justify discrimination against religious education. This explains why generations of Americans saw no issue with the public funding of religious schools. In fact, it was common practice “in the founding era and the early 19th century” for both federal and state governments to “provide[] financial support to private schools, including denominational ones.”[31] The nation’s storied tradition of funding religious schools shows that St. Isidore’s approval would not violate the Establishment Clause.

A.    The Religion Clauses were intended to work in tandem to support religious liberty, not to be weighed by courts as competing interests.

In Drummond, the Oklahoma Supreme Court pitted the Establishment Clause against the Free Exercise Clause, ruling that the Oklahoma’s antiestablishment interest outweighed St. Isidore’s free exercise protections.[32] This interpretation of the Religion Clauses diverges significantly from their original meaning. As originally understood, the Religion Clauses have fundamentally complementary purposes.

The Religion Clauses provide that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”[33] As the Supreme Court has recently explained, the most “natural reading” of the sentence that contains the Religion Clauses is that the Clauses have “complementary purposes, not warring ones.”[34] Further, the Bill of Rights was enacted to limit the power of the federal government and to prevent the sort of abuses that early Americans suffered at the hands of the British government.

Yet some today argue, as the Oklahoma Supreme Court held, that the Establishment Clause is different from the other protections in the Bill of Rights and authorizes the government to violate rights that are protected by other Bill of Rights’ provisions.[35] The strict “no-aid” view forces the conclusion that the Founders intentionally set the Religion Clauses on a collision course. This theory posits that the Clauses are in “inherent tension,” with the Free Exercise Clause protecting religious liberty while the Establishment Clause authorizing the violation of those Free Exercise rights and the exclusion of religious people from public programs and benefits.[36]

The twentieth-century Supreme Court endorsed this no-aid absolutism when it was in vogue to erase all traces of religion from the government. In Everson v. Board of Education, the Supreme Court interposed a “wall of separation” that “must be kept high and impregnable” between church and state.[37] Yet the Everson Court also concluded that faith was not grounds to deny “the benefits of public welfare legislation” and the Court was hesitant to embrace the consequences of its imagined wall of separation,  allowing New Jersey to fund parochial school bus fare.[38] It was not until Lemon that no-aid absolutism became dominant with government action held to violate the Establishment Clause unless it: (1) had a “secular legislative purpose,” (2) its “principal or primary effect” neither promoted nor “inhibit[ed]” religion, and (3) did not foster “excessive government entanglement with religion.”[39] No-aid absolutism was on full display in Justice O’Connor’s endorsement gloss on Lemon which posited that the Establishment Clause was violated whenever religious participation in generally available programs could be viewed as the government endorsing religion.[40]

Just last term, in Kennedy v. Bremerton School District, the Supreme Court clarified that, due to its “shortcomings” [41] and “ahistorical” reasoning, the Court had “long ago abandoned Lemon and its endorsement test offshoot.”[42] The Court held that the Establishment Clause does not “compel the government to purge from the public sphere” anything that might be viewed as an endorsement of religion.[43] In place of Lemon, the Supreme Court “instructed that the Establishment Clause must be interpreted by ‘reference to historical practices and understandings.’”[44] The Court noted that  “coercion” was “among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”[45] Yet it explained that there had been disagreement on the Court as to what “qualifies as impermissible coercion in light of the original meaning of the Establishment Clause,” and it declined to lay out a precise test. [46]

This leaves current Establishment Clause jurisprudence—in a word—“unsettled.”[47] Yet while jurists and scholars may disagree over the precise original understanding of the term “establishment,”[48] this essay will show that it cannot support the sort of no-aid absolutism on display in Drummond. In cases involving the Establishment Clause, the Supreme Court has instructed that the “line that courts and governments must draw between the permissible and the impermissible has to accord with history and faithfully reflect the understanding of the Founding Fathers”—and the original understanding of the Religion Clauses confirms that they are meant to preserve religious liberty, not destroy it.[49]

The historical record shows that the purpose of the Establishment Clause was to protect freedom of conscience.[50] At the time of the Founding, there was “broad agreement that liberty of conscience was a basic, inalienable right.”[51] And there was also agreement that the “establishment” of religion, meaning a government-preferred church, violated liberty of conscience “because it led to compelled actions against conscience.”[52]

Professor Noah Feldman has demonstrated that the Founding generation opposed “establishment” precisely because they viewed it as threatening freedom of conscience.[53] Indeed, during the ratification debates the “predominant” argument “against established churches was that they had the potential to violate liberty of conscience.”[54] Those opposed to establishment directly linked its vices to violations of religious liberty. At the Pennsylvania ratifying convention, for example, one delegate argued against ratification because “[t]he rights of conscience are not secured . . . . Congress may establish any religion.”[55] These concerns follow from the Lockean idea that it violated conscience rights for the government to coerce religious adherence.

Various ratification-era proposals expressly derived their opposition to establishment from religious liberty concerns. In proposing draft language for the Bill of Rights, the states advocated for language that linked liberty of conscience with nonestablishment. For instance, Virginia’s state ratifying convention adopted a provision that read:

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.[56]

This provision—as well as nearly identical proposals from North Carolina and Rhode Island—echoed Madison’s claims that the inalienable right to conscience meant that no religion ought to be established or preferenced in law.[57] New York’s proposal similarly linked liberty of conscience with the need for nonestablishment: “That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others.”[58] New Hampshire drafted language providing that “Congress shall make no laws touching religion, or to infringe the rights of conscience”—again, highlighting the ratifying generation’s view of nonestablishment as protecting religious liberty.[59] Maryland likewise proposed that “there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty.”[60]

Madison’s first draft of the First Amendment also melded establishment and free exercise concerns, reading: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”[61]

This draft language confirms that, for Madison, establishment and free exercise are the opposite sides of the same coin. Both were meant to secure conscience from coercion. And as Professor Feldman has explained, the final language of the Religion Clauses did not abandon the idea of liberty of conscience. Rather the “protection of free exercise and a ban on establishment, taken together, were thought to cover all the ground required to protect the liberty of conscience.”[62] In short, Professor Feldman’s rigorous examination of the historical record concludes that “liberty of conscience was the basic principle that underlay the arguments for no establishment at the federal level.” [63] An honest purveyor of history struggles to conclude otherwise.

The “logical connection between protection of liberty of conscience and establishment” motivated the Founders to craft the First Amendment as they did.[64] The congruence between the First Amendment’s protections and the Founding-era design that both phrases protect liberty of conscience discredits the theory that the Establishment Clause is in “tension” with the Free Exercise Clause.[65] While the inherent-tension theory uses the Establishment Clause to excuse violations of the Free Exercise Clause, that misunderstands the construction of the First Amendment. The Religion Clauses were enacted together to preserve liberty of conscience. The history and tradition of the Establishment Clause show that it was also meant to serve the religious liberty protected by the Free Exercise Clause.[66] Where the Free Exercise Clause requires protection for religious activity and condemns discrimination, an historical understanding of the Religion Clauses means that the Establishment Clause ought to permit that same activity.[67]

In sum, there is no inherent tension between the Free Exercise and Establishment Clauses as originally understood. The Founders did not anticipate that the Establishment Clause would be used as a sword to deprive individuals of their Free Exercise rights.[68] Indeed, Madison repeatedly explained the clauses as working in concert to protect religious liberty, interpreting the phases together to mean “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”[69] As shown below, moreover, the Founding generation—including Presidents Jefferson and Madison—repeatedly partnered with religious organizations to provide education. This history shows that the Founding Fathers did not view the Establishment Clause as an impediment to religious participation in government programs, much less as a justification for violating Free Exercise rights.

B.     The original understanding of “establishment.”

Moreover, the six indicia of “establishment” identified by Justice Gorsuch and Professor McConnell focus on the sort of coercion that would have made an establishment anathema to freedom of conscience and further demonstrate that funding religious schools would not (and did not) constitute “establishment” in the eyes of the Founders.

“To make sense of the Establishment Clause, one must understand the historical background that informed the Framers’ use of the word ‘establishment.’”[70] At the time of the Founding, as Professor Michael W. McConnell explained in his seminal article, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, “establishment” involved coercion.[71] “Force and funds to the church were what animated the drafters of the Establishment Clause.”[72]

Building on Professor McConnell’s article, Justice Gorsuch identified six indicia of establishment in his concurrence in Shurtleff.[73] He explained that that “founding-era establishments often bore . . . telling traits,” most of them “reflect[ing] forms of coercion:”

First, the government exerted control over the doctrine and personnel of the established church. Second, the government mandated attendance in the established church and punished people for failing to participate. Third, the government punished dissenting churches and individuals for their religious exercise. Fourth, the government restricted political participation by dissenters. Fifth, the government provided financial support for the established church, often in a way that preferred the established denomination over other churches. And sixth, the government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.[74]

An originalist understanding of the Establishment Clause must be guided by history and tradition, and as Justice Gorsuch and Professor McConnell have written, the Framers were particularly concerned about coercion, not vague notions of entanglement or endorsement.[75] The Establishment Clause was meant to “forestall[] compulsion by law of the acceptance of any creed or the practice of any form of worship.”[76] As James Madison put it during the debates over the language of the First Amendment, the Establishment Clause sought to prevent sects from “establish[ing] a religion to which they would compel others to conform.”[77] History and tradition confirm that the Clause prevents Congress from doing coercive things—establishing a national church and controlling its doctrine, compelling religious tithes, coercing religious observance, forbidding and punishing minority religious observance, handing over taxing authority to the established church and requiring test oaths. The prohibition of all of these things shows that the framers expressly linked nonestablishment with freedom of conscience and the preservation of religious liberty. That’s because preventing coercion facilitates religious liberty.

Indeed, the six factors identified by Justice Gorsuch and Professor McConnell focus primarily on limiting coercion as a means to protect religious liberty.

First, establishment at the founding often meant that the “government exerted control over the doctrine and personnel of the established church.”[78] The colonists were familiar with Europe’s state churches, where the King’s religion was the  realm’s religion.[79] Under Erastianism, (named for Thomas Erastus, the 16th-century theologian who promoted a theory that placed civil authority over the Church), “the monarch was the supreme head of the Church; Parliament controlled the liturgy and articles of faith; the government appointed the bishops; [and] government offices were confined to members of the Church.”[80]

In the colonies, government control over the church was exercised through the appointment of clergy and passage of laws that governed church doctrine.[81] The “central feature” of early Anglican establishments in America “was control” by the church.[82] The government not only selected the clergy but also dictated the religious doctrines that they taught. This control of church doctrine helps explain why disestablishment was often promoted as a means to enhance religious liberty.[83]

Second, in England, as well as the colonies, compelled religious observance was a ubiquitous part of the established church. Indeed, vestrymen in Virginia and throughout the South were authorized “to bring misdemeanor charges against persons caught swearing, Sabbath-breaking, skipping church, slandering, ‘backbiting’ or committing the ‘foule and abominable sins of drunkenness[s,] fornication[,] and adultery.’”[84] And a 1662 Virginia law even fined “scismaticall persons” who declined to baptize their children.[85]

Third and fourth, the Supreme Court has detailed how the exclusivity of established churches in the eighteenth century often resulted in the “prohibition of other forms of worship” and the exclusion of dissenters from the political process.[86] Even small deviances from dominant doctrines were punished. In fact, a young James Madison was inspired to pen his first defense of religious liberty when he saw Baptist ministers imprisoned for failing to follow religious orthodoxy:

That diabolical, hell-conceived principle of persecution rages among some . . . . There are at this time in the adjacent county not less than five or six well-meaning men in close jail, for publishing their religious sentiments, which in the main are very orthodox . . . . So I must beg you to . . . pray for liberty of conscience to all.[87]

Moreover, when the Constitutional Convention assembled in Philadelphia, most of the original thirteen colonies included religious tests as a qualification for office in their constitutions.[88] Convention delegates pointed out the dangers of excluding religious dissenters from civic life[89] and adopted a federal constitutional provision providing that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”[90]

Fifth, the established church of colonial America was funded by the government. “In addition to revenues from land grants, all nine of the American colonies with established churches imposed compulsory taxes for the support of churches and ministers.”[91] The “financial support” that amounted to an establishment “took very specific forms: government land grants to the established church, direct grants from the public treasury, and compulsory taxes or ‘tithes’ for the support of churches and ministers.”[92] Establishment, then, involved targeted financial support for the established church, often but not exclusively through coercive means.[93] South Carolina’s Founding-era establishment, for example, delegated taxing authority to churches.[94] And in the New England states, the states “collected and distributed solely to churches specific religious taxes for the support of ministers and church facilities.”[95]

As Professor Mark Storslee has explained, in the years immediately following the Founding, Americans largely came to agree that “government could not rightfully compel people to engage in specific forms of religious worship” and that this objection extended to church taxes as a form of compelled tithe.[96] Accordingly, by 1801, nine states had either forbidden church taxes or rejected proposals to require them.[97] Yet the idea that states should never aid religion fails to square with Founding-era practice. Indeed, the states that ended church taxes almost invariably funded religious schools and did so “seemingly without controversy.”[98] As Professor Muñoz has explained, prohibiting an establishment did not mean “forbidding every form of public aid or support for religion.”[99] To the contrary, “many Americans at the time of the Founding thought tax support of religion legitimate insofar as the purpose and scope of such support was to foster the self-governing moral character necessary for republican government.”[100]

And sixth, the government sometimes used the established church “to carry out certain civil functions, often by giving the established church a monopoly over a specific function.”[101] Establishment also often involved the “[d]elegation of government’s coercive authority to churches, especially in matters of taxation and financial contribution.”[102] As noted above, for example, the 1778 South Carolina Constitution, delegated its taxing power to the established church.[103] In South Carolina, “[l]egally established churches could utilize the state’s coercive power to collect ‘pew assessments’ and other financial obligations imposed on their members.”[104]

An originalist reading of the Establishment Clause thus shows that St. Isidore’s does not constitute an unconstitutional “establishment” because there is no coercion. The Oklahoma government is not exerting control over church doctrine or personnel. It is not mandating attendance at any church, much less forcing anyone to attend St. Isidore. Parents exercise an independent choice as to whether they would like to send their kids to an additional privately run educational option or keep them in traditional government-run public schools. Further, the government is not punishing those who choose not to attend St. Isidore nor in any way restricting political participation based on that choice. The government is not providing targeted financial support for worship in a preferred church. And finally, St. Isidore does not exercise government taxing power or have a monopoly on any civil function.

III.             History of Religious Education Funding

A.    States regularly funded religious schools from the Founding through Reconstruction.

From the ratification of the Bill of Rights to the turn of the nineteenth century, the states not only funded religious education, but believed that such education was key to good government.[105] Historical evidence shows that the Founding generation thought that religion, schools, and good government were “inextricably linked.”[106] “[M]ost members of the founding generation believed deeply that some type of religious conviction was necessary for public virtue, and hence for republican government.”[107] Thus, in the early days of the Republic, religious schools were the primary means to the desired end of a moral society. And as McConnell and Chapman have explained, support for education was not thought to violate the Establishment Clause even where “the education had religious components and was conducted under denominational auspices.”[108]

Primary education in the young Republic was “haphazard, private, and almost invariably religious.”[109] Primary schools prior to 1830 were “conducted under religious auspices, often by clergy,” even when local or state government shouldered the costs.[110] Town schools of the era were “virtually Congregational parochial schools.”[111] Indeed, Alexis de Tocqueville remarked after his tour of the Eastern States in 1831 that “[a]lmost all education is entrusted to the clergy.”[112] Local and state governments almost always funded this religious education.[113]

In New York, for example, a diverse collection of schools was organized by various denominations and received state funding.[114] Between 1800 and 1830, New York funded Presbyterian, Methodist, Quaker, Catholic, Dutch Reformed, Baptist, Lutheran, Episcopalian, Jewish, and Lutheran schools.[115]

In a similar vein, Massachusetts and Maine granted public land to private schools based on neutral and generally applicable criteria.[116] Many of the schools that received such funding were operated by churches, and those that weren’t made faith a centerpiece of the curriculum.[117]

The original thirteen states also subsidized private religious colleges in the early 1800s. As with primary education, nearly every private college was affiliated with a religious denomination.[118]

The primary school textbook of choice in eighteenth and early nineteenth century America, The New England Primer, reveals the thoroughly religious nature of Revolutionary-era education. Nicknamed “The Little Bible of New England,”[119] various adaptations included the Lord’s Prayer,[120] the Apostles’ Creed,[121] the Ten Commandments,[122] and the Westminster Catechism.[123] The youngest readers were taught to recognize their letters with memorable rhymes from A (“In Adam’s Fall, We sinned all”) to Z (“Zacheus he did climb the Tree, Our Lord to see”).[124]

The catechetical drill for older students asked, inter alia:

Q: “What is the chief end of man?

A: “Man’s chief end is to glorify God and enjoy Him forever.”[125]

Q: “Who is the Redeemer of God’s elect?”

A: “The only Redeemer of God’s elect, is the Lord Jesus Christ, who being the eternal son of God, became man, and so was, and continues to be God and man, in two distinct natures, and one person forever.”[126]

The New England Primer reflected the thoroughly religious nature of early American education. Even those schools that were not denominationally religious employed a curriculum that was decidedly so.

This religious nature permeated the genesis of publicly funded education, too. In 1837, Horace Mann, the father of modern public schools (then called “common schools”), became the first secretary of the Massachusetts State Board of Education. Mann began the common school movement’s push for free public education and sought to standardize—but not secularize—education. He believed that “common schools should provide ‘religious education’ of a general and tolerant nature.”[127] For Mann, learning religion in publicly funded schools was a way for a child to discern his “religious obligations.”[128] Common schools were to ensure that every student heard the Bible while leaving the doctrinal niceties to parents and churches. This left “the core of religion, the heart of Christianity . . . alive and well in the [public] schools.”[129]

The centerpiece of common-school instruction was “least-common-denominator Protestantism.”[130] Mann and the other members of his State Board of Education recommended “the daily reading of the Bible, devotional exercises, and the constant inculcation of the precepts of Christian morality in all the Public schools.”[131] And Mann claimed success: by 1848, he ventured that there was not “a single town in the Commonwealth in whose schools [the Bible] is not read.”[132]

Mann’s position on the Bible was no outlier. As late as 1869, and coinciding with the ratification of the Fourteenth Amendment, the National Teachers Association (the forerunner to the National Education Association) opined that “the Bible should not only be studied, venerated, and honored … but devotionally read and its precepts inculcated in all the common schools of the land.”[133] This notion reflected common school ideology that education should be both nonsectarian and thoroughly religious: “A generalized Protestantism became the common religion of the common school.”[134] Common schools “featured Bible reading, prayer, hymns, and holiday observance, all reinforced by … the pervasive Protestantism of the texts.”[135]

Indeed, historians rank McGuffey’s Readers as the “most consistent element in the nineteenth-century common school classroom.”[136] An estimated 122 million copies were purchased between 1836 and 1920.[137] McGuffey, an ordained Presbyterian minister, “preached to the nation” through his Readers.[138] He acknowledged that “the Sacred Scriptures” were his primary inspiration and believed that no one could “honestly object to imbuing the minds of youth with the language and the spirit of the Word of God.”[139]

The Readers taught recitation through the learning of Psalms: “Oh, that men would praise the Lord for his goodness, and for his wonderful works to the children of men.”[140] The Primer for the youngest students concludes with a lesson on the omnipotence of God: “Look at the sun! See it sinks in the West. Who made the sun? It was God, my child. He made the sun, the moon, and the stars.”[141] The First Reader gives a clear presentation of the Gospel (“All who take care of you and help you were sent by God. He sent His Son to show you His will, and to die for your sake”),[142] and the Third extols the virtues of scripture (“The scriptures are especially designed to make us wise unto salvation through faith in Christ Jesus”).[143]

These “omnipresent”[144] textbooks taught “a clearly religious outlook”[145] to common school students “for much of the nineteenth and early twentieth centuries.”[146] This helps to explain why historians describe “public schools of the first half of the nineteenth century” as “Protestant religious establishment.”[147] This religiosity persuaded Protestant parents to entrust their children to state common schools, making them “confident that education would be religious still.”[148] While common schools were not religious in status, faith “‘permeated’ everything they” did.[149] As Professor McConnell has explained, in early America, “there was no concept of a ‘secular’ school.”[150]

This historical record thus makes clear that from the Founding through Reconstruction, religious education was actively supported by state and local governments. Founding-era education was almost invariably private and almost exclusively religious. And the common school movement, which educated a majority of American children around the time of the Fourteenth Amendment,[151] shows that even early public schools included religious elements. Far from being seen as a violation of the Establishment Clause, religious instruction was widely regarded as essential to forming virtuous citizens and sustaining republican government.

B.     The federal government regularly funded religious schools from the Founding through Reconstruction.

Because the federal government was the only entity subject to the Establishment Clause until incorporation, the Supreme Court has stated that the federal historical record is crucial to the Clause’s proper interpretation[152]—and history demonstrates that Congress funded public schools that were “no less religious than those supported by the states.”[153]

Three historical federal programs demonstrate that from the Founding through the nineteenth Century, the Establishment Clause was not believed to pose any obstacle to government-funded religious education. First, the First Congress partnered with missionaries to educate Native Americans. Second, Congress funded religious education in federal enclaves until 1848. And third, the Reconstruction Congress created the Freedmen’s Bureau to partner with religious organizations to provide religious instruction to newly freed children in the South.

1.      The Government-Missionary Alliance

 From the Founding Era through the ratification of the Fourteenth Amendment, the federal government “made contracts for sectarian schools for the education of the Indians.”[154] Not only were funds channeled almost exclusively to religious denominations, but “specific conversion to Protestant Christianity [w]as one of the key ingredients” of federal policy.[155] Indeed, the United States worked so closely with missionaries for the express purpose of sharing the gospel that Native Americans “viewed Church and State as one.”[156]

In 1776, the First Continental Congress adopted a resolution seeking to encourage “a friendly commerce” between the Colonies and Native Americans and to “propagat[e] the gospel.”[157] To effectuate these twin policies, the Committee on Indian Affairs paid “a minister of the gospel, to reside among the Delaware Indians, and instruct them in the Christian religion.”[158] And at General Washington’s request, Congress funded Reverend Samuel Kirkland’s mission to evangelize the Tuscarora and Oneida nations.[159]

This government-missionary partnership cont­inued after ratification of the Constitution. President George Washington dispatched missionaries to Native American Tribes to “teach[] them the great duties of religion and morality, and to inculcate a friendship and attachment to the United States.”[160] And “despite his famous metaphor of the ‘wall of separation’ between church and state,” President Thomas Jefferson “did not . . . hesitate to sign a treaty in 1803 with the Kaskas[k]ia Indians of Illinois.”[161] That treaty obligated the United States to pay $100 per year for seven years “towards the support of a priest of [the Catholic] religion, who will engage to perform for the said tribe the duties of his office and also to instruct as many of their children as possible in the rudiments of literature.”[162] This funding was not a one-time occurrence. President Jefferson also approved funding for a Cherokee mission school where “children were taught to read from the Bible and catechism, to say Christian prayers daily, and to sing Christian hymns.”[163]

In 1819, the government-missionary partnership became a full-blown federal program with the passage of the Civilization Fund Act.[164] The Act allocated $10,000 per year to fund instructors of “good moral character” to “introduc[e] among [the Native Americans] the habits and arts of civilization.”[165] These federal funds went almost exclusively to Christian mission associations and involved direct funding of religious schools on a per capita basis.[166]

Federal funding for missionary schools continued into the late nineteenth century.[167] Until then, “virtually no one seemed to be troubled by the constitutional implications of the federal government’s longstanding policy of trying to convert the Indians to Christianity.”[168] In response to opposition, the Secretary of the Interior defended ongoing (but gradually diminishing) support for government-missionary educational partnerships: “It would be scarcely just to abolish [government-missionary partnerships] entirely—to abandon instantly a policy so long recognized.”[169]

In short, during the Founding-era up through the ratification of the Fourteenth Amendment, the federal government paid missionaries to run religious schools on Native American reservations and no one blinked an Establishment Clause eye.[170] This evidence suggests that funding private religious education was permissible because it was not a targeted effort to fund religious worship. Recognition of that historical fact does not condone the United States’s late nineteenth-century assimilation policy or the forcible removal of Native American children from their homes. And while the relationship between Native Americans and the Constitution adds complexity, other historical examples show that federal funding for religious education was commonplace in the nineteenth century.

2.      Funding of religious schools in federal enclaves and jurisdictions

From the Founding, Congress funded religious schools in federal territories and enclaves. The First Congress reenacted the Northwest Ordinance of 1787, which set aside lands for the use of schools including “church-affiliated sectarian institutions.”[171] The text of the Northwest Ordinance expressly linked religion and education, providing that “religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”[172] “[T]his aspiration was probably largely fulfilled” given “the religious character of the curriculum and the common practice of employing the minister as the schoolmaster.”[173]

Similarly, in the District of Columbia, Congress supported denominational schools until at least 1848.[174] And D.C.’s early public schools were infused with religion; the Bible served as the “standard reader and speller.”[175] An 1813 schoolmaster’s report, the first surviving record of a D.C. public school, describes how, of the 91 pupils, “55 have learned to read in the Old and New Testaments, . . . 26 are now learning to read Dr Watts’ Hymns and . . . 20 can now read the Bible.”[176]

3.      The Freedmen’s Bureau

In 1865, Congress established the Freedmen’s Bureau to, among other objectives, establish schools for formerly enslaved children.[177] Congress directed the agency to partner with “private benevolent associations.”[178] The Bureau created a generally applicable grant program and awarded most of those grants to religious organizations.

The Bureau’s principal partner was the American Missionary Association.[179] The Association received over $1 million in federal funds, about one-fifth of the Bureau’s total spending.[180] Its schools were comprehensively religious. Teachers were required to “furnish credentials of Christian standing.”[181] The goal was that the “Christ-like mission of the teachers” would break down prejudice until “there shall be no Blacks and no Whites, no North and no South, but when all shall be one in Christ Jesus.”[182] Schools routinely began and ended the day with Bible reading and prayer.[183] At one Mississippi school, for instance, students began the day with an hour of Scripture reading, prayer, and hymns.[184] The Freedmen’s Bureau continued until 1872 when the unfortunate collapse of Reconstruction pretermitted the Bureau.

Ultimately, these three examples clearly demonstrate that the federal government did not view the creation, funding, or promotion of religious schools as an antiestablishment problem.

C.     Historical counterarguments are unavailing.

In the past, the Supreme Court has found that historical evidence supports a no-aid interpretation of the Establishment Clause. Such arguments, however, rely on a selective reading of history that fails to account for the broader historical record, which demonstrates that public funding of religious education has long been a part of American tradition.

1.      Madison’s “Memorial and Remonstrance Against Religious Assessments”

The voluminous history of the public funding of religious schools cannot be overcome by looking to Madison’s “Memorial and Remonstrance Against Religious Assessments.”[185] To begin, Madison’s Remonstrance was a response to one particular piece of Virginia legislation—it predated the Establishment Clause by years. The Remonstrance does not support the Oklahoma Supreme Court’s no-aid view of the Establishment Clause for three reasons.

First, the Remonstrance was directed at a compelled-support-to-clergy statute, not a generally available program that received public funds only through private choice. The relevant Virginia legislation, a “Bill Establishing a Provision for Teachers of the Christian Religion,” otherwise known as “the Virginia Assessment,” imposed a tax for the support of Christian clergy.[186] The proceeds could be used by Christian leaders for the “provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship.”[187] While compelled tithes to an established church for the payment of clergy salaries or building a church violate the Establishment Clause for obvious reasons, Justice Thomas has explained that there is no indication that Madison endorsed the “extreme view that the government must discriminate against religious adherents by excluding them from more generally available financial subsidies.”[188] And as Professors McConnell and Chapman have shown, even “the most vocal opponents of the Virginia Assessment” supported public subsidies for denominational schools.[189]

Second, the Virginia Assessment preferenced some religious faiths over others by awarding preferential aid to certain churches. The compelled tithe aided only Christian ministers. Madison seized on this defect: “Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.”[190] As Professor McConnell has noted, the debate surrounding the Virginia Assessment “was not so much a debate about establishment as a debate about which of several possible arrangements should replace the ‘church by law established’ in Virginia prior to the Revolution.”[191] Thus, the Virginia Assessment is entirely unlike St. Isidore in that there is no religious preference nor the payment of clergy salaries.

Third, the best evidence from the congressional record suggests that—far from viewing the federal Establishment Clause as a no-aid mandate—Madison “associated religious establishments with the legal compulsion of religion.”[192] Madison twice explicated this view during the framing of the Establishment Clause. An early version of the Religion Clauses provided that “no religion shall be established by law, nor shall the full and equal rights of conscience be infringed,” and as noted above, Madison interpreted this language to mean “that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.”[193] Thus, in Madison’s view, “establishment” referred to the legal enforcement of religion by law.[194] In a later draft of the Clauses, the reconciliation committee inserted the word “national” before religion in response to federalism concerns. Commenting on this revision, Madison again focused on coercion, stating that the reason for the clauses was “that the people feared one sect might obtain a pre-eminence, or two combined together, and establish a religion, to which they would compel others to conform.”[195] Madison was not alone in the belief that establishment centered on coercion, not enacting a high and impregnable wall between church and state: “the Framers generally agreed with Madison and thought that religious establishments involved the legal coercion of religion.”[196]

In sum, Madison’s Memorial and Remonstrance does not support the Oklahoma Supreme Court’s no-aid reading of the Establishment Clause. First, Madison opposed a system of compelled financial support for clergy, not a neutral program where public funds follow private choice. Second, the Virginia Assessment gave preferential aid to certain churches, while St. Isidore operates within a generally available funding program with no religious preference. Third, Madison’s own writings show that he viewed establishment as coercion, not the voluntary participation of religious schools in public programs. Since no one is forced to attend St. Isidore and the school merely provides parents with another educational option, the Remonstrance does not support the Oklahoma Supreme Court’s no-aid view.

2.      The Blaine Amendments

 The exclusion of religious groups from government programs has sometimes been justified by looking to state Blaine Amendments, which prohibit the government from funding “sectarian” education.[197] Yet that argument ignores the relevant sociopolitical context and the fact that state Blaine Amendments were passed precisely because the Establishment Clause was not believed to exclude religious schools.

The Blaine Amendments were created in the 1870s as a reaction to the rising Catholic population in America. By the 1850s, a wave of immigration catapulted Catholicism from relative obscurity to America’s largest Christian denomination. As Catholics grew in political power, “[p]rotestants sought to entrench their former dominance in constitutions and statutes” by banning “sectarian” schools.[198] In pursuit of that objective, Maine Senator James G. Blaine proposed a federal constitutional amendment forbidding aid to “sectarian” schools.

While the federal constitutional amendment failed, more than thirty states adopted Blaine Amendments, many (like Oklahoma) as a condition of statehood. As the Supreme Court has explained, “it was an open secret that ‘sectarian’ was code for ‘Catholic.’”[199] Because these no-aid provisions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” the Supreme Court has held that their history does not inform the Court’s interpretation of the Establishment Clause.[200]

In St. Isidore’s case, the Oklahoma Supreme Court sought to defend the Oklahoma Constitution’s religious exclusions by speculating that the Framers of the Oklahoma Constitution were not motivated by religious bigotry.[201] To be sure, Congress required Oklahoma to include a Blaine Amendment in its Constitution as a condition of admission to statehood. Yet even if the Framers of Oklahoma’s Constitution did not harbor religious prejudices, the Blaine Amendments do not support a no-aid view of the Establishment Clause for two additional reasons. First, the historical record reveals that supporters of the state and federal Blaine Amendments did not seek to eliminate religion in public schools, but to entrench “nonsectarian” practices—namely, Protestant prayer and Bible reading.[202] The Blaine Amendments debate, in other words, was not about secularizing public schools, but keeping the “right kind” of religion in those schools.[203] That Blaine Amendments were “born of bigotry” and exclusively targeted Catholicism shows that those Amendments writ large were not based on Establishment Clause concerns regarding public funding for religious schools.

Second, imperatively, the Blaine Amendment debate confirms that the Reconstruction Congress did not believe the Establishment Clause forbade religious education. The fact that the Blaine Amendments’ supporters thought them necessary to exclude Catholic schools from receiving federal funding shows that Congress did not believe that the Establishment Clause did that work. Something more was needed to keep religious doctrine out of public schools. The debate over the federal Blaine Amendment thus shows that many of the same Members of Congress that framed the Fourteenth Amendment thought an additional amendment was necessary to restrict the government funding of religious schools.

D.    Drummond’s reading of the Establishment Clause does not comport with the long history and tradition of funding religious education.

The Oklahoma Supreme Court’s holding that “a religious public charter school violates the Establishment Clause” would have been news to the generations that ratified the First and Fourteenth Amendments.[204] As this essay has shown, from the nation’s Founding until the late 1800s, every level of American government funded religious education, whether that religiosity was found in a school’s affiliation, curriculum, or both.[205] This history included not only the Founding-era and beyond public funding of private religious education but also funding of early public schools around the time of the Fourteenth Amendment which were so pervasively religious that historians described them as “Protestant religious establishment.”[206] There simply is “no historically sound understanding of the Establishment Clause that begins to make it necessary for government to be hostile to religion”—but that is exactly the understanding the Oklahoma Supreme Court relied on in Drummond.[207]

Whether one looks to 1791 or 1868, there is “contemporaneous and weighty evidence” that the public funding of religious education does not violate the Establishment Clause.[208] In addition to long-standing state funding of religious education, the federal government long funded religious education in spite of the Establishment Clause. Indeed, the First Congress funded expressly religious education several times. The re-enactment of the Northwest Ordinance, its explicit linking of education and religion, and its funding of religious schools in federal enclaves cannot be squared with the Oklahoma Supreme Court’s no-aid view of the Establishment Clause. Nor can the government-missionary partnerships that spanned the eighteenth and nineteenth centuries and in which “Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations.”[209] And the same Congress that framed the Fourteenth Amendment created the Freedmen’s Bureau, which partnered with primarily religious organizations to educate newly freed African American children.[210] This long-standing history establishes that Oklahoma’s exclusion of religious charter schools “promotes stricter separation of church and state than the Federal Constitution requires.”[211] St. Isidore cannot be excluded from running a charter school consistent with history.

In sum, the Oklahoma Supreme Court’s reading of the Establishment Clause in Drummond does not “accord with history” or “faithfully reflect the understanding of the Founding Fathers.”[212] Instead, history definitively shows that every level of government funded religious education from the Founding through the turn of the nineteenth century.

IV.            Consistent with the original understanding of the Establishment Clause, recent Supreme Court precedent forbids excluding religious groups from educational programs.

The Oklahoma Supreme Court justified excluding St. Isidore from a generally available program based on its conclusion that the Religion Clauses are in inherent tension and that “compliance with the Establishment Clause” served as a “compelling governmental interest” and justified a Free Exercise violation.[213] But the Supreme Court has recently and repeatedly held that an “interest in separating church and state more fiercely than the Federal Constitution . . . cannot qualify as compelling in the face of the infringement of free exercise.”[214] This means that the only way that the Oklahoma Attorney General can win in his lawsuit against St. Isidore is to show that St. Isidore itself violates the Establishment Clause. This he cannot do for two reasons.

First, as shown above, the no-aid absolutism of the Oklahoma Supreme Court’s Drummond decision cannot be squared with history and tradition. History is conclusive that the federal government has long funded religious education—notwithstanding the Establishment Clause. Further, that history has given rise to two lines of Supreme Court precedent holding that the Establishment Clause is not violated when religious groups are included in generally applicable grant programs, especially where money flows to them as a result of private choice.

After its deviation from the original meaning of the Establishment Clause in the mid-twentieth century, the Supreme Court has course corrected, returning to a historically faithful view of the Establishment Clause as working in tandem with the Free Exercise Clause to protect religious liberty. Taking the early American educational context as its historical guide, the Supreme Court has held three times in recent years that the Establishment Clause is not violated by the inclusion of religious groups in generally available educational programs. Drummond’s contrary holding rests on “a principle that is inconsistent with our Nation’s long tradition of allowing religious adherents to participate on equal terms in neutral government programs.”[215]

A.    An antiestablishment interest does not justify excluding religious organizations from an otherwise generally available benefit.

In Drummond, the Oklahoma Supreme Court opined that “[t]he Establishment Clause prohibits government spending in direct support of any religious activities or institutions.” [216] The Court reached this erroneous conclusion by relying on older cases that invoked the concept of a “tension” between the Religion Clauses.[217] But those cases are vestiges of a “’bygone era’ when this Court took a more freewheeling approach to interpreting legal texts.”[218]

The Oklahoma Supreme Court’s argument attempts to raise the Lemon test from the grave. That test no longer “compel[s] the government to purge from the public sphere” anything that might be viewed as an endorsement of religion.[219] Rather, “the Establishment Clause must be interpreted by reference to historical practices and understandings.”[220] As this essay has demonstrated, the history of government funding of religious education shows that St. Isidore does not raise legitimate establishment concerns.

Consistent with this history, a recent trio of Supreme Court cases have made clear that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”[221] And even more specifically, the Court has held “nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs.”[222]

In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court invalidated a Missouri program that offered playground resurfacing grants to qualifying nonprofit organizations—but not religious ones.[223] The Supreme Court held that the Free Exercise Clause did not permit a state to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.”[224] The Court dispensed with the State’s antiestablishment interest in a few sentences, holding that “religious establishment concerns” did not “qualify as compelling” because any interest “in achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution . . . is limited by the Free Exercise Clause.”[225]

Similarly, in Espinoza v. Montana, the Supreme Court held that the State of Montana could not exclude private religious schools from its tuition scholarship program. The application of Montana’s Blaine Amendment to “bar religious schools from public benefits solely because of the religious character of the schools” violated the Free Exercise Clause.[226] As the Espinoza Court explained, the Supreme Court has “repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”[227] Were the rule to the contrary, “a church could not be protected by the police and fire departments, or have its public sidewalk kept in repair.”[228]

In Carson ex rel. O.C. v. Makin, Maine attempted to circumvent the Court’s recent Free Exercise jurisprudence by excluding religious schools based on their religious use of funds rather than their religious status. The Supreme Court rejected Maine’s attempt to exclude only schools that sought to present “academic materials through the lens of . . . faith” and held that “use-based discrimination is [no] less offensive to the Free Exercise Clause” than status-based discrimination.[229]

In short, the Supreme Court’s recent precedent is clear that “[a] State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”[230] This means that “a government does not violate the Establishment Clause merely because it treats religious persons, organizations, and speech equally with secular persons, organizations, and speech in public programs, benefits, facilities . . . .”[231] Indeed, the Supreme Court has long “require[d] the state to be . . . neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary.”[232]

In the instant case, it is undisputed that St. Isidore met the statutory criteria for a charter school. The Oklahoma City and Tulsa Dioceses use high-quality curriculum and have experience running brick-and-mortar schools with an extraordinary record of demonstrated academic success. And the school would potentially serve many of the state’s economically disadvantaged students. That’s why the Charter School Board approved St. Isidore. Yet the Oklahoma Supreme Court barred St. Isidore from operating a charter school solely because of its religious character.[233] Drummond treats religious persons and organizations as adversaries. Under Trinity Lutheran, Espinoza, and Carson, that violates the Free Exercise Clause, and under the Supreme Court’s recent turn to history, it is not required by the Establishment Clause.

B.     An antiestablishment interest does not justify excluding religious organizations where private choice directs a benefit.

St. Isidore also does not offend the Establishment Clause because public funds would only flow to the religious school through the independent choices of private benefit recipients.[234] As the Supreme Court held in Locke v. Davey, “the link between government funds and religious training is broken by the independent and private choice of recipients.”[235]

Zelman v. Simmons-Harris demonstrates this principle. There, the Supreme Court rejected an Establishment Clause challenge to an Ohio Pilot Project Scholarship that, much like the program challenged here, gave additional choices to families who lived in underperforming school districts.[236] Because tuition aid followed the children, the Supreme Court held that the voucher program did not offend the Establishment Clause.[237] In reaching that conclusion, the Supreme Court focused on the fact that the Ohio funding program was “neutral in all respects toward religion . . . . [and] is part of Ohio’s general and multifaceted undertaking to provide educational opportunities to children.”[238]

Consistent with the original understanding of the term “establishment” set out above, the Supreme Court found that the relevant “Establishment Clause question” in Zelman was “whether Ohio is coercing parents into sending their children to religious schools.”[239] That makes sense: government coercion of religious exercise is a hallmark of religious establishment the Framers sought to prohibit.[240] Government may not “make a religious observance compulsory,” nor may it compel attendance at a religious school.[241] But where the “true private choice” of parents determines where both students and government funds go, the Establishment Clause is not offended.[242]

Oklahoma’s charter school program is “a program of true private choice.”[243] “It is neutral in all respects toward religion . . . . [and] is part of [Oklahoma’s] general and multifaceted undertaking to provide educational opportunities to children.”[244] No student is compelled to attend a charter school, much less St. Isidore. Far from coercing attendance, state law requires an interested family to apply and allows St. Isidore to cap its enrollment. It gives Oklahoma parents and students, especially disadvantaged families who may not otherwise be able to afford a private education, another alternative to the traditional public-school setting. And critically, that option may only be exercised through the “genuine and independent choices” of parents and students.[245] Under the per-capita funding formula, money is going to religious recipients as the result of private choice. As the Supreme Court has said, this choice means that there is no impermissible “establishment.”

In short, the Supreme Court’s recent cases have held that the Establishment Clause does not give a state the right to “treat religious persons, religious organizations, or religious speech as second-class.”[246] To disqualify St. Isidore’s high-quality application suggests a “hostility to religion” that would “undermine the very neutrality the Establishment Clause requires.”[247] The Supreme Court has thrice held that an “interest in separating church and state more fiercely than the Federal Constitution . . . cannot qualify as compelling in the face of the infringement of free exercise.”[248] It has repeatedly confirmed that an antiestablishment interest does not justify excluding religious organizations from an otherwise generally available benefit, especially when that benefit flows from private choice: “Nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs.”[249]

Conclusion

The Oklahoma Supreme Court erred in holding that the Establishment Clause mandates the exclusion of religious schools. To the contrary, the same Congresses that enacted the First and Fourteenth Amendments regularly entrusted federal funds to religious organizations for the education of America’s children. No one objected to this practice on the grounds that it violated the Establishment Clause.

Moreover, as the Supreme Court has recently clarified, the Establishment Clause and the Free Exercise Clause are not meant to be pitted against each other. There is no “inherent tension” between the two Clauses; the Framers intended the provisions to work in tandem to protect religious liberty. But in St. Isidore’s case, the Oklahoma Supreme Court wrongly weighed the interests and declared the Establishment Clause the victor.

Further, recent Supreme Court precedent has made it clear that the Establishment Clause does not justify the exclusion of religious people from participation in generally available programs and benefits, especially where private parental choice determines where those benefits flow.

St. Isidore’s submitted a qualifying charter school application. Standing in the way of its operating a charter school is the Oklahoma Supreme Court’s faulty application of the Establishment Clause. The Establishment Clause does not impose a mandate to discriminate—rather, history and precedent demonstrate that the Clause does not bar private religious groups from participating in public programs.

* Erin Morrow Hawley is an Associate Professor of Law at Regent University School of Law and Senior Counsel and Vice President of the Center for Life and the Regulatory Practice Team at Alliance Defending Freedom. She and her colleagues represent the State Charter School Board before the Supreme Court in Oklahoma Statewide Charter School Board v. Drummond. Thanks to Mark Storslee and Nicole Garnett for insightful comments and criticisms and to Darlene Radichel and Nathan Sybrandy for their excellent research assistance. Thanks also to the editors of the Harvard Journal of Law and Public Policy Per Curiam for their insightful suggestions. All errors, of course, are my own.

[1] Kennedy v. Bremerton School District, 142 S. Ct. 2407, 2427 (2022) (quoting Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 768 (1995)) (citing Shurtleff v. Boston, 142 S. Ct. 1583, 1605–1606 (2022) (Gorsuch, J., concurring in judgment)).

[2] Kennedy, 142 S. Ct. at 2428 (quoting Town of Greece v. Galloway, 572 U.S. 565, 576 (2014)) (citing American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2087 (2019) (plurality opinion)).

[3] Kennedy, 142 S. Ct. at 2428 (alterations in original) (quoting Galloway, 572 U.S. at 577).

[4] Annie E. Casey Found., 2024 Kids Count Data Book: State Trends in Child Well-Being 27 (2024), bit.ly/4bD84QT [perma.cc/SV7G-B48W]. See also Ben Felder, A generation after education reform, Oklahoma is facing familiar issues, The Oklahoman (March 27, 2016), www.oklahoman.com/story/news/politics/2016/03/27/a-generation-after-education-reform-oklahoma-is-facing-familiar-issues/60683965007 [perma.cc/Y6PY-9CBM] (noting the challenged public education system in 1990 due to “low academic achievement and teacher pay”).

[5] Okla. Stat. tit. 70, § 3-134(C) (2024).

[6] Id. at § 3-136(A)(9).

[7] Id. at §3-136(A)(1).

[8] Id. at § 3-136(C).

[9] Id. at § 3-136(A)(7); accord Okla. Admin. Code 777:10-1-3(c)(1) (“Charter schools . . . shall be governed by a board . . . .”).

[10] Paul E. Peterson & M. Danish Shakeel, The Nation’s Charter Report Card, Education Next, Winter 2024, at fig. 4, https://www.educationnext.org/nations-charter-report-card-first-ever-state-ranking-charter-student-performance-naep [perma.cc/5VVR-G7NZ].

[11] See Current Charter Schools of Oklahoma, Okla. St. Dep’t of Educ., https://oklahoma.gov/education/services/school-choice/charter-schools/current-charter-schools.html [perma.cc/P4KZ-QVYL].

[12] Okla. Stat. tit. 70, § 3-136(A)(2).

[13] Id.

[14] Act of June 16, 1906, § 3, 34 Stat 267, 270.

[15] Okla. Const. art. 2, § 5.

[16] Petition for Writ of Certiorari at 11, Okla. Statewide Charter Sch. Bd. v. Drummond ex rel. Okla., No. 24-394 (U.S. Oct. 7, 2024), 2024 WL 4468129, at *11.

[17] Id.

[18] Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 17 (2024) (Kuehn, J., dissenting), cert. granted sub nom., Okla. Statewide Charter Sch. Bd. v. Drummond ex rel. Okla., No. 24-394, 2025 WL 288306 (U.S. Jan. 24, 2025) (first consolidated case), and cert. granted sub nom., St. Isidore of Seville Cath. Virtual Sch. v. Drummond ex rel. Okla., No. 24-396, 2025 WL 288308 (U.S. Jan. 24, 2025) (second consolidated case).

[19] Okla. Stat. tit. 70, § 3-134(I)(3).

[20] Okla. Admin. Code § 777:10-3-3(c)(1)–(2) (2024).

[21] Petition for Writ of Certiorari at 196-97a, St. Isidore v. Drummond ex rel. Okla., No. 24-396 (U.S. Oct. 7, 2024).

[22] Drummond, 558 P.3d at 6–7.

[23] Id. at 6.

[24] See Petition for Writ of Certiorari at 77a, Okla. Statewide Charter Sch. Bd., No. 24-396 (U.S. Oct. 7, 2024), 2024 WL 4468129 (Oklahoma Attorney General’s Brief in Support of Motion for Mandamus, filed in the Oklahoma Supreme Court on Oct. 20, 2023).

[25] Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 7 (2024).

[26] Id. at 11 (first citing Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 192 (1988), and then citing United States v. Ackerman, 831 F.3d 1292, 1295-1300 (10th Cir. 2016)).

[27] See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. 802, 814–15 (2019) (“Numerous private entities in America obtain government licenses, government contracts, or government-granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities.”); see also Rendell-Baker v. Kohn, 457 U.S. 830, 841–42 (1982) (holding a private charter school was not a state actor in the § 1983 context because the actions at issue were not compelled by the state); S. Ernie Walton, Charter Schools and State Action: An Analysis Through the Lens of Agency Law, 77 Okla. L. Rev. __, at *11–*13, *16 (forthcoming 2025), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4912082 [https://perma.cc/Z389-ZRYN] (contending that past iterations of the entwinement test clash with the Court’s core state action doctrine and advocating for application of the rule in Lindke v. Freed—that private actions are attributable to the state only in the presence of actual authority and intent to exercise said authority).

[28] Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 14–15 (2024).

[29] Id. (citing Widmar v. Vincent, 454 U.S. 263 (1981)).

[30] See Drummond, 558 P.3d at 14–15.

[31] Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 480 (2020).

[32] Drummond, 558 P.3d at 14–15.

[33] U.S. Const. amend. I.

[34] Kennedy, 597 U.S. at 533.

[35] Linda Greenhouse, The Urgent Supreme Court Case, N.Y. Times (March 9, 2025), https://www.nytimes.com/2025/03/09/opinion/school-catholic-supreme-court-constitution.html [https://perma.cc/6642-JSNZ].

[36] Id.; see also Drummond, 558 P.3d at 14–15 (implying tension in the Religion Clauses by stating that even if St. Isidore could claim Free Exercise rights, Oklahoma’s disestablishment interest overrode any such right).

[37] Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

[38] See id. at 16–18 (holding that New Jersey’s statute “ha[d] not breached” the asserted wall of separation).

[39] Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (first citing Board of Educ. v. Allen, 392 U.S. 236, 243 (1968), and then citing Walz v. Tax Commission, 397 U.S. 664, 674 (1970).

[40] Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring).

[41] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2427 (2022) (quoting American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2101 (2019) (plurality opinion)) (citing Town of Greece v. Galloway, 572 U.S. 565, 575–577 (2014)).

[42] Kennedy, 142 S. Ct. at 2427.

[43] Id. (quoting Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring in judgment)).

[44] Kennedy, 142 S. Ct. at 2428 (quoting Galloway, 572 U.S. at 576) (citing American Legion, 139 S. Ct. at 2087).

[45] Kennedy, 142 S. Ct. at 2429 (footnote omitted).

[46] Id. (comparing Lee v. Weisman, 505 U.S. 577, 593 (1992) with id. at 640–41 (Scalia, J., dissenting).

[47] Vincent Phillip Muñoz, What Is an Establishment of Religion? And What Does Disestablishment Require?, 38 Const. Comm. 219, 219 (2023), [perma.cc/MS4Q-8MKN] (reviewing Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience (2023)).

[48] Professor Donald Drakeman, for example, has argued that “establishment” was used in a variety of ways at the Founding. Donald L. Drakeman, Church, State, and Original Intent 225 (2010). Justice Thomas has expressed a federalism view of the amendment (which has much to recommend it as an historical matter) stating that Congress has no power to make any law respecting state establishments. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J, concurring in judgment) (“[T]he Establishment Clause is a federalism provision, which, for this reason, resists incorporation.”). Phillip Muñoz similarly advocates for this view. Muñoz, supra note 47, at 246–47.

[49] Kennedy, 597 U.S. at 535–36 (quoting Town of Greece v. Galloway, 572 U.S. 565, 577 (2014)).

[50] Noah Feldman, The Intellectual Origins of the Establishment Clause, 77 N.Y.U. L. Rev. 346, 398–405 (2002); see also Robert G. Natelson, The Original Meaning of the Establishment Clause, 14 Wm. & Mary Bill Rts. J. 73, 89 (2005) (citing Professor Feldman in concluding that “the celebrated tension” in the religion clauses is “overblown” and “if the Establishment Clause exists to serve the Free Exercise Clause, then in the event of conflict, the former must yield”).

[51] Feldman, supra note 50, at 405.

[52] Id.

[53] Id. at 381–84, 398–402.

[54] Id. at 398. Feldman errs, however, by concluding that the idea of liberty of conscience supports an essentially no-aid position. To the contrary, while states disestablished churches, they routinely funded religious education. See Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Penn. L. Rev. 111, 143–44, 150–63 (2020).

[55] Id. (quoting Proceedings and Debates of the Pennsylvania Convention, reprinted in 2 The Documentary History of the Ratification of the Constitution 326, 592 (Merrill Jensen ed., 1976)).

[56] Id. at 401 (quoting 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, 659 (Jonathan Elliot ed., 1901)).

[57] Id.

[58] Id. at 401 n. 309 (quoting 4 The Documentary History of the Ratification of the Constitution 328 (John P. Kaminski & Gaspare J. Saladino eds.,1990)).

[59] Id. at 401 (quoting 4 The Documentary History of the Ratification of the Constitution 326 (John P. Kaminski & Gaspare J. Saladino eds., 1990)).

[60] Convention of the Delegates of the People of the State of Maryland, Apr. 28, 1788, reprinted in 2 The Debate on Constitution 552, 554 (Bernard Bailyn ed., 1993).

[61] 1 Annals of Cong. 451 (1789).

[62] Feldman, supra note 50, at 404. For a granular account of the opposing theological figures who gave rise to the natural rights “freedom of conscience” consensus, see generally Phillip Hamburger, Separation of Church and State 21–64 (2002).

[63] Feldman, supra note 50, at 405.

[64] Id. at 398.

[65] Linda Greenhouse, The Urgent Supreme Court Case, N.Y. Times (March 9, 2025), https://www.nytimes.com/2025/03/09/opinion/school-catholic-supreme-court-constitution.html [https://perma.cc/6642-JSNZ].

[66] Natelson, supra note 50, at 90.

[67] Id.

[68] Muñoz, supra note 47, at 247 (“Madison seems to have associated religious establishments with the legal compulsion of religion.”).

[69] 1 Annals of Cong. 758 (1789); see also Muñoz, supra note 47, at 245 (reproducing the same quote from Madison).

[70] Felix v. City of Bloomfield, 847 F.3d 1214, 1215 (10th Cir. 2017) (Kelly, J., dissenting).

[71] Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2119 (2003) [hereinafter Establishment]. Professor McConnell has summarized the general features of most establishments: “(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.” Id. at 2131.

[72] Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 119 (2023).

[73] Shurtleff v. City of Bos., 596 U.S. 243, 286 (2022) (Gorsuch, J., concurring).

[74] Id.

[75] See Kennedy v. Bremerton School District, 597 U.S. 507, 535–36 (2022).

[76] Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

[77] Kennedy, 597 U.S. at 537 n. 5 (citing 1 Annals of Cong. 730–31 (1789)).

[78] Shurtleff, 596 U.S. at 286 (2022) (Gorsuch, J., concurring).

[79] Steven D. Smith, Fixed Star” or Twin Star?: The Ambiguity of Barnette, 13 FIU L. Rev. 801, 803 (2019) (conveying the principle of cuius regio, eius religio, meaning “whose realm, his religion,” as enshrined in the Peace of Westphalia, determining that the religion of a ruler determined the religion of his subjects).

[80] McConnell, Establishment, supra note 71, at 2189.

[81] Id.

[82] Id. at 2131.

[83] See Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 58 (2023) (examining how, in response to losing public tax support and ecclesial independence, the Anglican church in Virginia petitioned the legislature “for the repeal of the laws setting the doctrine, liturgy, and clergy qualifications of the church, giving the church the right to govern itself in all these respects”).

[84] McConnell, Establishment, supra note 71, at 2118 (quoting George Maclaren Brydon, Virginia’s Mother Church and the Political Conditions Under Which it Grew 121 (1947)).

[85] Id. at 2119.

[86] Walz v. Tax Comm’n of New York, 397 U.S. 664, 668 (1970). The exclusion of religious dissidents was nothing new. In England, even the Toleration Act of 1689, which granted freedom of worship to some denominations, left in place criminal penalties against Catholic, Jewish, and Unitarian dissenters. See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1421–22 (1990).

[87] McConnell, Establishment, supra note 72, at 2166. Relatedly, if one did not follow church teachings, they were excluded from important parts of civic life. McConnell writes that central to establishment was the limitation of public office to church members. Id. at 2178 (“Even after Independence, every state other than Virginia restricted the right to hold office on religious grounds.”). The Constitution, however, expressly forbade the federal government from requiring a religious test. See U.S. Const. art. VI, cl. 3.

[88] Carl Zollman, Religious Liberty in the American Law, 17 Mich. L. Rev. 355, 355 (1919).

[89] Id. at 356.

[90] U.S. Const., art. VI, cl. 3.

[91] McConnell, Establishment, supra note 71, at 2152.

[92] Hannah C. Smith & Daniel Benson, When A Pastor’s House Is A Church Home: Why the Parsonage Allowance Is Desirable Under the Establishment Clause, 18 Federalist Soc’y Rev. 100, 102 (2017) (quoting McConnell, Establishment, supra note 71, at 2146–59). As the Supreme Court has explained, the “establishment’ of a religion” at the Founding meant “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Walz v. Tax Comm’n of New York, 397 U.S. 664, 668 (1970).

[93] Muñoz, supra note 47, at 259–60.

[94] Id.

[95] Id. at 260.

     [96] Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Penn. L. Rev. 111, 118 (2020).

     [97] Id. at 150.

     [98] Id.

[99] Muñoz, supra note 47, at 259.

[100] Id. (citing Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 69–74 (2023)).

[101] Shurtleff v. City of Bos., 596 U.S. 243, 286 (2022) (Gorsuch, J., concurring).

[102] Muñoz, supra note 47, at 260; see also Shurtleff, 596 U.S. at 286 (“[T]he government used the established church to carry out certain civil functions, often by giving the established church a monopoly over a specific function.”).

[103] Muñoz, supra note 47, at 259–60.

[104] Id. at 258.

[105] James W. Fraser, Between Church and State: Religion and Public Education in a Multicultural America 23 (1999).

[106] Id.

[107] McConnell, Establishment, supra note 71, at 2109.

[108] Nathan S. Chapman & Michael W. McConnell, Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience 119 (2023).

[109] Id.

[110] Id.

[111] Richard J. Gabel, Public Funds for Church and Private Schools 183 (1937).

[112] 1 Alexis de Tocqueville, Democracy in America 395 (Francis Bowen, ed., Henry Reeve, trans., Cambridge, Sever and Francis 2d ed. 1862) (1835).

[113] See John C. Jeffries, Jr. & James E. Ryan, A Political History of the Establishment Clause, 100 Mich. L. Rev. 279, 299 (2001).

[114] Fraser, supra note 105, at 51.

[115] Chapman & McConnell, supra note 108, at 119.

[116] Gabel, supra note 111, at 186.

[117] Id.

[118] Chapman & McConnell, supra note 108, at 118.

[119] The New England Primer, Britannica, https://www.britannica.com/topic/The-New-England-Primer [perma.cc/Q3HW-7VST].

[120] Fraser, supra note 105, at 10.

[121] New England Primer: A History of Its Origin and Development 25 (Paul Leicester Ford, ed., Dodd, Mead, and Co. 1897) [hereinafter “New England Primer”] [perma.cc/3YG3-RTWB] (late nineteenth century edition containing a full reproduction of the first edition).

[122] Id. at 74–78.

[123] Fraser, supra note 105, at 10.

[124] New England Primer, supra note 105, at 65, 68.

[125] Id. at 96.

[126] The Improved New England Primer 28–29 (Roby, Kimball & Merrill 1841).

[127] Fraser, supra note 105, at 24.

[128] Id.

[129] Id. at 25.

[130] Espinoza, 591 U.S. at 502 (Alito, J., concurring) (citation omitted).

[131] Charles L. Glenn, The Myth of the Common School 166 (1988).

[132] Id.

[133] Jeffries & Ryan, supra note 113, at 301 (citation omitted).

[134] Id. at 299.

[135] Fraser, supra note 105, at 122.

[136] Id. at 35.

[137] Id. at 36.

[138] Id.

[139] Id.

[140] William Holmes McGuffey, McGuffey’s Fifth Eclectic Reader 76 (H.H. Vail 1920).

[141] William Holmes McGuffey, McGuffey’s Eclectic Primer 59 (H.H. Vail 1909).

[142] William Holmes McGuffey, McGuffey’s First Eclectic Reader 76 (H.H. Vail 1920).

[143] McGuffey, supra note 140, at 74.

[144] Fraser, supra note  105, at 40.

[145] Id. at 43.

[146] Id. at 40.

[147] Id. at 41. To be sure, the focus on plain vanilla Protestantism was unacceptable to many religious minorities, including Jews and Roman Catholics. Mark Storslee, History and the School Prayer Cases, 110 Va. L. Rev. 1619, 1688 (2024). Courts of this era also wrongly overlooked the Free Exercise rights of students in compulsory government-run schools. See id. at 1688–90. As the Supreme Court has explained, the government may not “make a religious observance compulsory” under the Establishment Clause, as that would violate the hallmark coercion principle. Zorach v. Clauson, 343 U.S. 306, 314, (1952). Further, it “was an open secret that ‘sectarian’ was code for ‘Catholic.’” Espinoza, 591 U.S. at 482 (quoting Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion)). This “shameful pedigree” of exclusion runs counter to Founding-era nondiscrimination Establishment Clause principles and should not “inform our understanding” of the Establishment Clause. See id. Still, the history of early public schools makes clear that the generation that ratified the Fourteenth Amendment did not believe that the Establishment Clause justified the exclusion of religious people from government programs, like education. See Shurtleff v. City of Bos., Massachusetts, 596 U.S. 243, 273–74 (2022). In St. Isidore’s case, there is no coercion or compulsion; any Establishment Clause link is severed by the parents’ choice to send the child to the virtual charter school.

[148] Fraser, supra note  105, at 31.

[149] Espinoza, 591 U.S. at 477 (quoting State ex rel. Chambers v. School Dist. No. 10, 472 P.2d 1013, 1021 (1970)) (holding Montana’s Blaine Amendment unconstitutional despite the state’s putative concern that funds would be used for religious purposes).

[150] McConnell, supra note 71, at 2171 (“[T]here was no such thing as a secular school; all schools used curriculum that was imbued with religion.”).

[151] Indeed, in 1830, over one-half of American children aged five to fourteen were enrolled in public schools; by 1870, that number had grown to 78 percent. Peter Lindert, Growing Public: Social Spending and Economic Growth since the Eighteenth Century 92 (2004).

[152] Marsh v. Chambers, 463 U.S. 783, 790–91 (1983).

[153] Chapman & McConnell, supra note 108, at 120.

[154] Reuben Quick Bear v. Leupp, 210 U.S. 50, 78 (1908).

[155] Fraser, supra note  105, at 90.

[156] Robert H. Keller, Jr., American Protestantism and United States Indian Policy, 1869–1882 8 (1983).

[157] 4 Journals of the Continental Congress 1774–1789, at 111 (1776) [perma.cc/323D-VA3S]. The Journal records the passage of this resolution on Feb. 5, 1776. Id. at 109. Like the other recorded items of business, only a description is given, without official titles or numbers: “The committee to whom the memorial of Samson Occum, one of the Mohegan Indians, in Connecticut, was referred, brought in their report . . . .” Id. at 111.

[158] Charles L. Glenn, American Indian/First Nations Schooling: From the Colonial Period to the Present 31 (2011) [hereinafter American Indian Schooling].

[159] Rev. Samuel Kirkland Continued in His Mission Among the Indians (Nov. 11, 1775), in 3 American Archives ser. 4, at 1918 (Peter Force ed., Washington, M. St. Clair Clarke & Peter Force 1840), [perma.cc/6BC2-4KZW].

[160] George Washington & Henry Knox, Instructions to the Commissioners for Treating with the Southern Indians (Aug. 29, 1789), in 1 American State Papers: Indian Affairs 66 (1832).

[161] Glenn, supra note 157, at 51.

[162] A Treaty Between the United States of America and the Kaskaskia Tribe of Indians, Kaskaskia Tribe–U.S., Aug. 13, 1803, 7 Stat. 78, 79, [perma.cc/Y8M9-5B4X].

[163] Glenn, supra note 157, at 52 (citation omitted).

[164] Act of Mar. 3, 1819, ch. 85, §1, 3 Stat. 516, 516–17.

[165] Id. at 516.

[166] Glenn, supra note 157, at 53–54; Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame L. Rev. 677, 684 (2020).

[167] Reuben Quick Bear, 210 U.S. at 81 (considering a request for injunctive relief against performance on government contracts with the “Bureau of Catholic Indian Missions”).

[168] Donald L. Drakeman, Church, State, and Original Intent 307 (2010); Reuben Quick Bear, 210 U.S. at 78 (noting that it was not until 1894 that “opposition developed against appropriating public moneys for sectarian education”).

[169] Reuben Quick Bear, 210 U.S. at 78.

     [170] In 1879, the United States moved towards an assimilation policy and opened the first off reservation boarding school. See Haaland v. Brackeen, 599 U.S. 255. 329 (2023) (Gorsuch, J., concurring). Congress even authorized the Secretary of the Interior to “prevent the issuing of rations or the furnishing of subsistence” to Native American families who resisted sending their children off to school. Id. (citing Act of Mar. 3, 1893, 27 Stat. 628, 635). Historians have catalogued the “devastating effects” the dissolution of the Indian family had on children and their parents. Id.

[171] Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 862 (1995) (Thomas, J., concurring).

[172] Ordinance of 1787: The Northwest Territorial Government art. 3 (July 13, 1787).

[173] McConnell, Establishment, supra note 71, at 2151.

[174] Espinoza, 591 U.S. at 481.

[175] Gabel, supra note 111, at 179 n.75.

[176] J. Ormond Wilson, Eighty Years of the Public Schools of Washington—1805 to 1885, 1 Recs. Colum. Hist. Soc’y 119, 127 (1896).

[177] See Espinoza, 591 U.S. at 481 (“After the Civil War, Congress spent large sums on education for emancipated freedmen, often by supporting denominational schools in the South through the Freedmen’s Bureau.”) (citation omitted).

[178] Act of July 16, 1866, § 13, 14 Stat. 173, 176 (renewing the Freedmen’s Bureau).

[179] Charles L. Glenn, African-American/Afro-Canadian Schooling: From the Colonial Period to the Present 56 (2011).

[180] Jacqueline Jones, Soldiers of Light and Love: Northern Teachers and Georgia Blacks, 1865–1873, at 92 (1980).

[181] Joe M. Richardson, Christian Reconstruction: The American Missionary Association and Southern Blacks, 1861–1890, at 44 (2009).

[182] Id.

[183] Id. at 166.

[184] Id. at 44.

[185] James Madison, The Papers of James Madison, vol. 8, 10 March 1784–28 March 1786, 297–306, (Robert A. Rutland & William M. E. Rachal, 1973).

[186] Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 852–53 (1995) (Thomas, J., concurring).

[187] Id.

[188] Id. at 857.

[189] Chapman & McConnell, supra note 108, at 119.

[190] James Madison, Memorial and Remonstrance Against Religious Assessments ¶3 (ca. June 20, 1785), reprinted in Everson v. Bd. of Educ., 330 U.S. 1, 65 (1947).

[191] McConnell, Establishment, supra note 71, at 2108.

[192] Muñoz, supra note 47, at 247; see also Chapman & McConnell, supra note 107, at 37.

[193] Muñoz, supra note 47, at 245 (quoting 1 Annals of Cong. 758).

[194] See Chapman & McConnell, supra note 108, at 37.

[195] 1 Annals of Cong. 758–59 (1789) (emphasis added).

[196] Muñoz, supra note 47, at 248; see also Chapman & McConnell, supra note 108, at 2119.

[197] Espinoza, 591 U.S.at 482.

[198] Jeffries & Ryan, supra note 113, at 304.

[199] Espinoza, 591 U.S. at 482.

[200] Id.

[201] See Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 8 (2024) (asserting that Article 2, Section 5 is not a “Blaine Amendment,” and that arguments to the contrary “completely ignore[] the intent of the [state] founders,” who merely “sought to ensure . . . religious freedom” and “recognized the necessity of a complete separation of church and state” (first quoting Prescott v. Okla. Capitol Pres. Comm’n, 2015 OK 54, ¶ 24, 373 P.3d 1032, 1052 (Gurich, J., concurring in denial of reh’g), then quoting Prescott, 2015 OK 54, ¶ 6, 373 P.3d 1032, 1038 (majority opinion))).

[202] Chapman & McConnell, supra note 108, at 125.

[203] See id. at 126–27 (“At the heart of the debate was disagreement over the difference between ‘religion’ and ‘sectarianism.’ Supporters of the amendment believed that children ‘can be taught religion without being taught the particular tenets or creed of some denominations.’”).

[204] Drummond, 558 P.3d at 14.

[205] Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 480 (2020).

     [206] James W. Fraser, Between Church and State: Religion and Public Education in a Multicultural America 35, 41 (1999).

[207] Kennedy v. Bremerton School District, 597 U.S. 507, 541 (2022).

[208] See Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888) (showing the Court has traditionally looked to such historical context clues to guide its interpretations); Marsh v. Chambers, 463 U.S. 783, 790–91 (1983) (same).

[209] Wallace v. Jaffree, 472 U.S. 38, 103 (1985) (Rehnquist, J., dissenting).

[210] See Espinoza, 591 U.S. at 481.

[211] Carson ex rel. O.C. v. Makin, 596 U.S. 767, 781 (2022).

[212] Kennedy, 597 U.S. at 536 (cleaned up).

[213] Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 15 (2024).

[214] Carson, 596 U.S. at 781 (emphasis added) (quoting Espinoza, 591 U.S. at 484–85); see also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 466 (2017).

[215] Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 852–53 (1995) (Thomas, J., concurring).

[216] Drummond, 558 P.3d at 13.

[217] Id. (citing Locke v. Davey, 540 U.S. 712, 718 (2004) for the “play in the joints” between the Establishment Clause and Free Exercise Clause).

[218] Shurtleff v. City of Bos., 596 U.S. 243, 276 (2022) (Gorsuch, J., concurring) (citations omitted).

[219] Kennedy, 597 U.S. at 535 (citing Van Orden v. Perry, 545 U.S. 677, 699 (2005) (Breyer, J., concurring in judgment)).

[220] Id. at 510 (citations omitted).

[221] Carson, 596 U.S. at 781.

[222] Mitchell v. Helms, 530 U.S. 793, 829 (2000) (plurality opinion).

[223] Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 466 (2017).

[224] Id. at 462.

[225] Id. at 466 (quoting Widmar v. Vincent, 454 U.S. 263, 276 (1981)).

[226] Espinoza, 591 U.S. at 476.

[227] Id. (citing Locke v. Davey, 540 U.S. 712, 719 (2004) and Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 839 (1995)); see also Trinity Lutheran, 582 U.S. at 458 (“[T]his Court has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’”) (quoting Wisconsin v. Yoder, 406 U.S. 205, 215 (1972)).

[228] Widmar, 454 U.S. at 274–75 (1981) (citing Roemer v. Bd. of Pub. Works of Maryland, 426 U.S. 736, 747 (1976)).

[229] Carson ex rel. O.C. v. Makin, 596 U.S. 767, 787 (2022).

[230] Id. at 781.

[231] Shurtleff v. City of Bos., 596 U.S. 243, 261 (2022) (Kavanaugh, J., concurring) (citing Zelman v. Simmons-Harris, 536 U.S. 639 (2002)).

[232] Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947).

[233] Drummond ex rel. State v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 15 (2024).

[234] Carson, 596 U.S. at 781; see also Zelman, 536 U.S. at 662–63 (holding that parents may “exercise genuine choice” among secular and religious options without offending the First Amendment).

[235] Locke, 540 U.S. at 719.

[236] Zelman, 536 U.S. at 669–70.

[237] Id.

[238] Id. at 653.

[239] Id. at 640–41.

[240] See Kennedy, 597 U.S. at 537 (“[C]oercion . . . was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment.”); 1 Annals of Cong. 730–31 (1789) (Madison explaining that the First Amendment aimed to prevent sects from “establish[ing] a religion to which they would compel others to conform”).

[241] Zorach v. Clauson, 343 U.S. 306, 314 (1952).

[242] Zelman, 536 U.S. at 649.

[243] Id. at 653.

[244] Id.

[245] Id. at 649.

[246] Shurtleff v. City of Bos., 596 U.S. 243, 261 (2022) (Kavanaugh, J., concurring)

[247] Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 845–46 (1995); see also McConnell, supra note 72, at 2131 (emphasizing the centrality of government control of religion in historical definitions of establishment).

[248] Carson ex rel. O.C. v. Makin, 596 U.S. 767, 781 (2022) (emphasis added) (quoting Espinoza, 591 U.S. at 484–85); see also Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. 449, 466 (2017).

[249] Mitchell v. Helms, 530 U.S. 793, 829 (2000) (plurality opinion).

Originalism as an Empty Signifier — Or Bassok

Posted by JLPP on Apr 21, 2025 in Per Curiam

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Originalism as an Empty Signifier 

Or Bassok*

Introduction

In her articles Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance[1] and The “Levels of Generality” Game, or “History and Tradition” as the Right’s Living Constitution,[2] Reva Siegel concludes that originalism has been used as doublespeak.[3] Originalism purports to be a genuine interpretative method that offers to decipher the meaning of the constitutional text based on the meaning ascribed to the constitutional text by the public at the time of the Constitution’s promulgation.[4] In this manner, it aims to ensure that interpreting the Constitution would not reflect the judges’ political views.[5] Rather, the judge is to be constrained by the fixed meaning of the Constitution.[6] Yet, Siegel argues that in practice, and especially in Dobbs, originalism is used to insert the conservative ideology into constitutional law.[7] According to Siegel, this function of originalism as a conduit pipe for inserting the vision of American identity conservatives hold is known to members of the Republican Party.[8] Hence, the doublespeak function of originalism.[9] On the surface, the concept of originalism seems to communicate a certain interpretative methodology that aims to constrain judicial discretion and create a separation between law and politics.[10] Beneath the surface, it is a mechanism for conservative lawyers to insert the will of the conservative movement into constitutional law without going through the process of legislation or constitutional amendment.[11] The brand “originalism” covers up the true meaning of the concept that is different from what the word “originalism” purports to convey.[12] While Siegel does not use the term doublespeak, she exposes originalism’s dual function.[13]

Siegel admits that “Dobbs does not employ the methods of academic originalists”[14] as it speaks disingenuously of history and tradition. Yet, she argues that Dobbs is an originalist judgment because it achieves one of the chief goals of the conservative movement: overruling Roe v. Wade.[15] Siegel argues that over the years,  originalist rhetoric allowed originalists to interpret the Constitution to achieve the objectives of the conservative movement of here and now rather than binding judges to the dead hand of the past as originalism proclaims to do.[16]  However, in Dobbs, even the attempt to use history and tradition as part of originalist rhetoric failed. Alito’s majority judgment could not hide that history and tradition did not serve to constrain the Justices. Instead, according to Siegel, the rhetoric about history and tradition enabled the majority in Dobbs to insert their vision of American identity. She writes that “the Justices in the Dobbs majority have turned to history and traditions to express—not to constrain—their moral views.”[17] For this reason, while originalism was not explicitly invoked in Dobbs, in Siegel’s view, it is an originalist judgment because the vision of American identity that originalists hold was again inserted into constitutional law.

In criticizing Siegel’s thesis, I raise two arguments. Before elaborating on them in detail, allow me to summarize them. First, Siegel is correct that jurists use originalism to inject their preferred way of life into constitutional interpretation. In a previous article, I used the term “identity originalists” to discuss this type of originalists because they use originalism to promote a certain vision of American identity.[18] I argued that as long as the Supreme Court has a central role in determining the meaning of the Constitution in issues that affect American identity, every interpretative theory would offer a particular roadmap to American identity.[19]  For this reason, even if Siegel is correct that in Dobbs, Alito attempted to insert the conservative identity-agenda, her conjecture that such injection means he used originalism is flawed. Injecting the identity-agenda of the conservative movement through an interpretative methodology does not mean that the methodology was necessarily originalism. Other interpretative theories also enable inserting the conservative movement’s agenda. Yet, identity originalists are committed not merely to a certain vision of American original identity but also to an originalist methodology or roadmap leading to such identity. If the methodology was not originalist, the judgment is not an identity-originalist ruling.

Second, I argue that much of Siegel’s criticism of the Dobbs majority judgment suffers from a difficulty that she has had a significant role in creating. In her work on democratic constitutionalism, Siegel has promoted the idea that the Constitution has been amended outside of the Article V procedure and that this way of changing constitutional law is proper.[20] Siegel’s work is part of a larger school of thought in American constitutional law—known as the New Haven School[21]—that promotes the idea of informal constitutional amendments. The gist of this idea of constitutional amendments outside of Article V is that even if a social movement cannot bring a change in the law through the proper procedure of amending the Constitution, and even if it fails to convince the Court using tools of constitutional reason, a social movement may still achieve a constitutional change based on public support for their agenda. This re-conceptualization of constitutional law was aimed to answer the difficulty in amending the Constitution,[22] but it created a problem of giving priority to the public will over reason. Rather than limiting the paths for overruling the Court’s constitutional interpretations to  formal constitutional amendments or convincing constitutional reasoning, according to the New Haven School, social movements can change constitutional law by mere strength of public support.

Siegel’s conceptualization of what happened in Dobbs follows the path offered by the New Haven School. Siegel explains that beyond all the rhetoric, in Dobbs, the will of a conservative political movement was adopted in a judicial decision that is supposed to be controlled by constitutional reason. According to Siegel, in Dobbs, constitutional arguments succeeded not based on their legal merit but based on their power in the political arena.[23]  She is dismayed that the conservatives in Dobbs were allowed to break the border between law and politics and essentially amend the Constitution outside of the Article V procedure.[24] Yet, this entire line of argument contradicts her re-conceptualization of constitutional law in earlier work as allowing precisely this type of constitutional change.

By allowing public will to change the Constitution without the constraints of constitutional reason, the New Haven School has eroded the ability to criticize constitutional changes based on constitutional reason. After years of eroding the distinction between law and politics in order to allow social movements to amend the Constitution outside the formal amendment process, Siegel argues that originalists should adhere to the border between law and politics. A scholar who believes social movements may amend the constitution without complying either with the formal rules of constitutional amendment or with constitutional reason as developed by courts needs to explain why, in Dobbs, the law/politics distinction is suddenly resurrected to the point that the Dobbs reasoning is criticized as lacking doctrinal plausibility. Lacking such an explanation, Siegel’s two articles on Dobbs reveal once more the dead-end that the New Haven School of Constitutional Law has reached.[25]

Siegel’s response to Dobbs is to use originalism to insert silenced voices into constitutional interpretation, thus adhering to the use of originalism as doublespeak and further contaminating the meaning of this signifier until it becomes an empty signifier. As I will explain below, taking this path would be a mistake as it would deepen the corruption of constitutional law as a language of expertise and leave progressives with even fewer legal resources to criticize the Court.[26] At the same time, such an approach capitulates to the idea that the Founding Era’s identity vision is the correct path to current American identity.

I.                 Identity Originalism

In criticizing Dobbs for failing to adhere to the originalist method of interpretation, Siegel diagnoses that there are different types of originalism.[27] For her, true or pure originalists are those who believe that the best interpretative scheme for deciphering the American Constitution as a legal-constitutional text is to detect the original understanding of the text.[28] However, Siegal identifies another group of people who use the brand of originalism to inject their conservative vision of American identity into constitutional interpretation.[29] In a previous article, I called these originalists “identity originalists.”[30] Following Josh Hammer, Siegel titles this group “common good originalism.”[31]

Identity originalism is based on three principles. First, the Constitution is central to American identity. Second, constitutional law, as discussed by lawyers and judges, should be central in defining, or at least articulating, American constitutional identity. Making the language of constitutional law, as discussed by lawyers, detrimental to American identity is not trivial. One can accept that the Constitution is central to American identity and yet maintain that public discourse on the Constitution—rather than the legal discourse in courts—should dominate the understanding of the Constitution in its function as the focal point of American identity.[32] Yet, for identity originalists, the Justices serve as the “keepers of the covenant” that constituted American identity.[33]

The third principle all identity originalists share is viewing the originalist interpretative scheme as a roadmap to a vision of American identity that is in some substantial way connected to American identity during the Founding Era. Identity originalists believe that while this original identity was amended over the years, there must be a thread connecting it to the current American identity. In other words, America’s original identity must have a substantive bearing on its current constitutional identity.

According to identity originalists, Americans should be bound to their original covenant, to their original self, as it was expressed in the act of founding and later founding moments such as the constitutional amendments following the Civil War. For identity originalists, originalism is an interpretative scheme committed to preserving a thread of identity stretching from the days of the Founders to the present. What makes identity originalism a type of originalism is precisely this commitment to “fixation” of the founding act as a stable identity-constant constraining constitutional interpretation even amid changes.[34]

Identity originalists do not deny that, over the years, American original identity went through significant changes. Many features of the American original constitutional identity have vanished, and for a good reason—for example, slavery and other forms of inequality.[35] However, they insist that, as a legal matter, Americans must preserve a link to the identity of the founding generation. If the Constitution is “a covenant running from the first generation of Americans to us and then to future generations,”[36] identity originalists believe that a thread of identity from the framers to our times must be guarded.[37] In their vision, by using the originalist interpretative scheme, the Court ensures that the core features that connect contemporary America to the time of its founding are maintained.[38]

Purist originalists deny the identity function of originalism as it pertains to the legal discourse. In their view, constitutional law functions as “pure” law with no aspiration to function as a focal point of American identity.[39] Purists may accept that outside the legal discourse, the Constitution is central to American identity. But in their view, constitutional law functions as a language of expertise and not as an identity manifesto.[40] For pure originalists, originalism’s merit lies precisely in its value as a technique of legal interpretation that resembles legal techniques used to interpret non-constitutional legal sources.[41] Requiring judges to construct American identity through their judgments is antithetical to this view. In this spirit, Larry Solum wrote in response to my claim that identity originalism exists in constitutional law that he doubts whether “‘identity originalism’ exists as an approach to constitutional interpretation (as opposed to a motivation for originalist approaches).”[42] However, he agreed that “some appeals to original meaning (especially outside the academy) are entwined with the narrative and identity functions of the Constitution and the framing era.”[43]

Siegel does a good job of rebutting Solum’s argument. While she agrees that, at first, identity originalism was not common among legal academics,[44] she recognizes that currently, “there are large numbers of originalists in the academy, in politics, and on the bench who are identified with the conservative legal movement that . . . understands itself as having an identity and telos—a ‘substantive moral constitutionalism’ to borrow Professor Vermeule’s term.”[45]  Siegel further writes on how originalism has been used to defend a “way of life—let’s call it family values traditionalism . . . .”[46] She argues that the majority Justices in Dobbs essentially adopted identity originalism in turning to history and tradition to express and project “a family-values agenda into nineteenth-century legal materials.”[47] She explains that “[t]his is surely not the original public meaning originalism that academic originalists practice, but it is a species of family-values traditionalism that movement originalists have practiced since the Reagan era.”[48] According to Siegel, the goal of the majority opinion in Dobbs is constructing a history that current conservative Americans can identify with.[49]

However, Siegel views identity originalism as a sham legal technique. First, according to Siegel, originalism’s “reason of being” is constraining judges by ensuring that their interpretative determinations are not decided according to their own values but according to the founding generation’s understanding.[50] Yet Siegel argues that in the hands of the conservative Justices, originalism is used to advance their identity vision rather than to dictate the correct interpretation according to the originalist methodology.[51] In this manner, originalism does not constrain discretion as it promises to do. Rather, in allowing the injection of the conservative movement’s identity values into constitutional interpretation, originalism leads to radical changes in constitutional law—such as the one in Dobbs—that are contrary to the incremental way Burkean conservatism dictates.[52]

Yet, here, Siegel disregards a different connection between identity originalism and conservatism. Identity originalism is a conservative agenda in the sense that it aims to conserve a thread of American identity that is preserved  by the original meaning of the Constitution. Conservative in terms of identity does not imply conservative in terms of judicial restraint and incremental slow change. If identity originalists believe that America has strayed away from its original identity, their call for fidelity is an argument for change, not stasis.[53] Yet, they still proclaim to restore and conserve the original identity rather than reform it.

The second reason that Siegel argues that identity originalism is not true originalism is the different methodology used compared to the one used by pure originalists. According to Siegel, identity originalists are not committed to the originalist methodology of deciphering the meaning of the Constitution using its original understanding.[54] Rather, they are committed to their vision of America’s original identity. Siegel detects a tension in identity originalism between commitment to originalism as an interpretative methodology that serves to connect current America to its original identity and the commitment to American original identity. Identity originalists’ goal is not only a correct interpretation in terms of linguistic original meaning but also an interpretation adhering to an original understanding of American identity as captured by the Constitution. As a result, a question arises: which of these commitments supersedes? If originalism is a roadmap to a certain vision of American identity, may the destination dictate the road, or does the road dictate the destination? Siegel is correct that there is a danger that the commitment to the fixation of American original identity would provide the answers to questions of how to interpret constitutional law and thus make originalism a mere sham tool for achieving a certain vision of American identity.

In Siegel’s view, Dobbs is an example of a judgment that was corrupted by the commitment to a certain vision of America’s original identity which overpowered originalism as an interpretative methodology. This is Siegel’s “originalism as living constitutionalism” argument, according to which, under the guise of originalism, Alito inserted the developing (“living”) values of conservative identity.[55] According to Siegel, the original American identity may have been the destination but the interpretative roadmap was living constitutionalism. In her view, the originalist identity function of the Constitution led Alito to reject the correct originalist interpretation of the Constitution. Originalism did not serve as the roadmap to America’s original identity. Instead, according to Siegel, only by using living constitutionalism as the interpretative roadmap, could Alito incorporate the evolving identity-vision of the Republican Party into constitutional interpretation. For this reason, she writes “[t]he conservative Justices are living constitutionalists, too.”[56]

In my view, Siegel’s branding of Alito’s majority opinion in Dobbs as driven by an identity vision is baffling. Alito’s opinion does not directly address the Constitution’s effect on American identity. His attempt to downplay the Court’s role in determining American identity becomes especially clear in comparison to the dissenting opinion that speaks of constitutional law as a language expressing “what it means to be an American.”[57] The dissenting Justices further stress that “reproductive control is integral to many women’s identity and their place in the Nation.”[58] The dissenting Justices in Dobbs accept the first and the second premises of identity originalists. They agree that the Court must discuss the Constitution as a document central to American identity. In insisting that abortion is an identity question to be determined by the Court, the dissenting Justices preserve and strengthen the Court’s role in expressing American identity, while Alito’s judgment narrows this role. Alito downplays the Court’s role in identity issues by returning the issue of abortion to the decision of the citizens and their elected representatives in each state. Hence, while acknowledging the fundamental nature of the issue, he denies that the American identity dictates the legal answer to the issue of abortion.[59] His judgment presents the Court’s decision on abortion as derived from constitutional law as a language of expertise rather than a language for determining American identity.[60]

According to Siegel’s branding, every judgment adhering to the conservative identity-agenda would be titled “political originalism” no matter what interpretative scheme is used.[61] As will be elaborated below, creating such conceptual confusion is the first step in Siegel’s effort to pollute the concept of originalism so as to make it an empty signifier: a brand with no content behind it so that everyone can use the same signifier in diverse ways.[62] Then, everyone would be an originalist. Yet, if everything is originalism, then nothing is, making the concept useless.

II.               Originalism as Democratic Constitutionalism

Together with Robert Post, Siegel has devised and promoted the idea of democratic constitutionalism.[63] According to this idea, the meaning of constitutional provisions is not determined exclusively by the Court but stems from a complex pattern of exchanges between courts, representative government, and mobilized citizens.[64] Constitutional meaning continually changes through multiple communicative exchanges between the public and the courts, including public backlash.[65] Siegel and Post view the sharp distinction between “law” and “politics” as artificial and promote one common language of reason to which all players are committed. Yet, they acknowledge that public will—whether directed by reason or not—has a central role in determining the content of constitutional law, which is detrimental to American identity.[66]

Democratic Constitutionalism was developed as part of a larger school of constitutional thought that emerged at Yale Law School. The godfather of this school of thought is Bruce Ackerman, who identified that the Constitution has changed not only based on constitutional amendments in accordance with the textually prescribed procedure laid out in Article V or by convincing courts with constitutional reason. Rather, the Constitution was also amended by the will of the people not according to the formal constitutional amendment process.[67]  Ackerman has shown that throughout American history, the mechanisms for amending the Constitution that are anchored in Article V were not always followed, and yet the Constitution was amended. We the People adopted constitutional changes outside the procedure stipulated in Article V. These informal constitutional amendments that occur through social mobilization and “outside” the procedures of Article V give another venue for the will of the People to manifest itself.[68]

Siegel and Post’s “democratic constitutionalism,”[69] Jack Balkin and Sanford Levinson’s “partisan entrenchment,”[70] and William Eskridge and John Ferejohn’s “super-statutes”[71] are all part of this family of attempts to describe the mechanisms through which popular will amends the Constitution even when it is expressed outside the mechanism of formal constitutional amendments.[72] In that sense, these theories are all offspring of Ackerman’s approach. Privileging the People’s will over reason in describing constitutional changes is the common thread connecting all these attempts to re-conceptualize constitutional law.[73] These theories, that can be addressed — due to the number of Yale-based scholars among those who devised them — under the title of “the New Haven School of constitutional law,” view a change in constitutional law as achieved not only by offering convincing legal reasons to the Court nor by only amending the Constitution according to the procedure in Article V. Rather, enduring public will compels a change in constitutional law; public legitimacy overwhelms legality.

Over the years, Siegel did a masterful job in depicting how conservative social movements have changed constitutional law through mechanisms akin to those suggested by the New Haven School.[74] Her articles criticizing the Dobbs judgment continue this line of thought. Siegel writes that:

The Republican Party engaged in norm-busting appointments politics to produce the Supreme Court that decided the Dobbs case. These norm-busting appointments politics were a necessary condition for the decision. When I call Dobbs an originalist decision, I include within my account of originalism the appointment practices that produced the Court that decided the case.[75]

This description aligns with the theory of two proud members of the New Haven School: Balkin and Levinson’s “Partisan Entrenchment.” According to Balkin and Levinson, “[b]y installing enough judges and Justices with roughly similar ideological views over time, Presidents can push constitutional doctrine in directions they prefer . . . .”[76] Partisan entrenchment helps ensure that the courts defend the controlling party’s ideological commitments.[77] In this manner, responsiveness to the opinion of the electing public is indirectly created.[78] According to Balkin and Levinson, partisan entrenchment is “roughly but imperfectly democratic”[79]  and “is one of the most important ways for parties to change the Constitution outside of Article V amendment.”[80]

To summarize the argument made so far in this subsection: Siegel presents the “norm-busting appointments politics” as the best way to explain Dobbs.[81] According to Balkin and Levinson such “partisan entrenchment” is one route to amend the Constitution outside of the Article V procedure as part of several routes the New Haven School has to offer. Siegel is one of the founders of this school of thought and has consistently supported the idea of amending the Constitution outside of Article V.

Based on this brief summary, it is easy to understand why Siegel is unable to criticize the legal reasoning of the anti-abortion social movement by adopting the simple argument that if this movement lacks a convincing constitutional argument, its only route to change Roe’s constitutional interpretation was through Article V. After all, she developed a route for public will to overcome the constraints of legality. True, Siegel is against court-centric models, in which constitutional changes that occur outside of the Article V amendment procedure are initiated or consolidated by the Court. She objects to the role of the judiciary as having the last word.[82] However, she accepts changes to the Constitution that fail to go through the formal procedure of Article V or convince the Court based on reason as long as they are driven by proper and robust popular energy.[83] She accepts that such changes occur in “the field of constitutional culture” through “the formal and informal interactions between citizens and officials that guide constitutional change,” including “lawmaking and adjudication, confirmation hearings, ordinary legislation, failed amendments, campaigns for elective office, and protest marches.”[84] For this reason, the title of Siegel’s Memory Games Article does not merely say that Dobbs adhered to the “living constitutionalism” method under the guise of originalism but that it was an anti-democratic adherence.[85] Unable to criticize the path of amending the constitution outside of Article V as illegal, it is vital for Siegel to add that Dobbs is anti-democratic. In Siegel’s world, in which popular energy translates itself into informal amendments to the Constitution, defying legality can be accepted but not if it lacks public legitimacy.[86]

Siegel’s argument is extremely important as it demonstrates the dead-end reached by the New Haven School of Constitutional Law. According to Siegel, in Dobbs, the conservative social movement led to a change in constitutional law not through a constitutional amendment utilizing Article V, and not based on constitutional reason, as their legal arguments were bogus.[87] Dobbs is an example of a constitutional change that followed a path—not different than the ones detected and promoted by the New Haven School—of amending the Constitution outside of Article V. According to Siegel, Dobbs represents the victory of public will through the appointment procedure, even when such public will is not in line with legal doctrine. There was no proper constitutional amendment, nor was there any convincing arguments in terms of constitutional law that convinced the Justices, but nonetheless, constitutional law changed. Siegel’s inability to reject this path of amending the Constitution outside of Article V as illegal inevitably leads her to suggest using originalism as a vessel to insert the progressive political agenda. As she supports amending the Constitution outside Article V, as long as there is the correct political energy, why not use the originalism brand? Siegel suggests inserting voices that were repressed at the time of the founding of the Constitution or at the time the Reconstruction Amendments were adopted. In this manner, the right to abortion would become part of the Constitution.[88] While this idea uses the shell of originalism to insert voices from the era in which the Constitution was created/amended, it goes against the logic of identity originalism and pure originalism. It uses originalism as an empty signifier.

Think of the following example: currently, some groups consider the term “murder” to include not only intentional killings of human beings but also of animals.[89] These voices are under-represented in the way most Americans currently use the term “murder.” Some of these voices arguing for a different use of the term “murder” would undoubtedly argue that they are repressed. If we would today create a constitution prohibiting “murder by state officials,” the original understanding of the term “murder,” by either the general public or lawyers, would not include intentionally killing dogs during military operations. Moreover, the constitutional identity which is based on such a constitution would not put animal life as a central property. However, if 300 years from now we include the voices of the repressed animal rights movements as part of our interpretative methodology, “murder” may need to include the intentional killing of dogs. By then, such interpretation may well be considered the progressive moral result and may also be part of the 2325 American constitutional identity. However, it would not be the correct result either according to pure originalism or identity originalism. According to Siegel, if originalism is not a true interpretive methodology but merely a guise for ideological goals, there is no reason not to use this popular brand for progressive ideological goals. Yet, in this manner, originalism would be emptied of its meaning and become an empty signifier.

Conclusion: Dobbs Beyond the Abortion Question

Siegel’s Articles on Dobbs reveal a problem that is common to all scholars following the New Haven School of constitutional law. If, as the New Haven School argues, social movements can change constitutional law based on the support they receive from the public, without going through the formal procedure for a constitutional change, and without convincing the community of experts based on constitutional reason, how can a legal expert criticize such changes in terms of constitutional law? If members of the New Haven School conceptualize radical changes in the Court’s adjudication—such as the 1930s “switch in time”— as a legitimate result of sustained public pressure that were  contrary to constitutional doctrine,[90] how can they, based on constitutional doctrine, criticize a similar development with Roe and the right to abortion? Siegel is thus faced with a difficulty. After accepting and promoting the idea of constitutional change based on public will outside of Article V, she has no resources in terms of constitutional reason to criticize Dobbs.[91]

As constitutional reason has lost its privileged place to public will, at least among members of the New Haven School, it is no wonder that Siegel’s articles present Dobbs as a sham originalist decision and as anti-democratic living constitutionalism. With deflated resources of legal reason to criticize Dobbs, Siegel’s critique is limited to the inner logic of originalism and democracy. Siegel agrees that Dobbs does not speak in the language of originalism nor applies the originalist methodology.[92] Yet, because Dobbs incorporated a central piece of the conservative vision of American identity into constitutional law, Siegel views it as an originalist judgment. As such, she attacks it as inconsistent with the stated goals of originalism as a legal methodology.[93]

During periods when constitutional law functioned as a language of expertise in which reason reigns supreme,[94] constitutional law was disciplined by requirements of consistency and coherency.[95] Preferring will over reason as the central  driving-force in conceptualizing  constitutional development means that consistency is denied of this key disciplining role. Consistency is a tool of reason, while public will need not be consistent. According to the New Haven School, a social movement supported by enough public will can bring a constitutional change even if its agenda is inconsistent with current constitutional law and without going through the formal procedures for constitutional amendment that aim to distinguish politics from law. In Siegel’s hands, consistency is a mere rhetorical tool for exposing the hypocrisy of the conservatives who purport to speak the language of law but do politics. She exposes that originalists are disingenuous as they are inconsistent with originalism’s stated goals. An argument of doublespeak is the tool of critique.

The conceptualization of constitutional change—according to the New Haven School—as driven by will rather than reason has contributed its part in exposing constitutional law to the dangers of populism.[96] Without reason to discipline change in constitutional law, legal scholarship is led by the question of whether the social movement leading the change in political will is worthy of support. This crisis is well reflected in the annual campfire meeting of American constitutional scholars—the annual Harvard Law Review foreword—which has always been a good way for detecting the problems of American constitutional law.[97] On the eve of the 2020 elections between then (and now) President Donald Trump and Joe Biden, Michael Klarman published a 264-page long(!) foreword discussing “the recent degradation of American democracy.”[98] The reader of the foreword—written in the spirit of “resistance” to autocracy[99]—could not but feel that the days are equivalent to the last days of the Weimar Republic.

A year has passed, and Cristina Rodriguez’s foreword speaks in a completely different tone.[100] Rodriguez’s foreword not only does not speak on how American democracy succeeded in surviving for another year but promotes the new administration’s ability to make a “regime change—the advent of a new presidential administration that brings with it constitutional, interpretive, philosophical, and policy commitments distinct from those held by its predecessor . . . .”[101] Yet if Klarman was even remotely correct, why give such power to the institution that he described just a year earlier as presenting an immense danger to American democracy?

What has changed between the two forewords? What “constitutional moment” has occurred that ensured the immunity of constitutional law to dangers of a populist President? No such change has occurred, but Joe Biden was elected to become the 46^th US President. The way out of this dead-end in which politics is the guiding star of constitutional scholarship is not to further corrupt the language of constitutional law nor to adopt the dissenting opinion in Dobbs, which aims to continue the judicial control over American identity. Part of the solution is to look at Dobbs beyond the abortion issue and to return to viewing constitutional law as a language of expertise with little effect on identity issues, just as Alito suggested in his majority opinion in Dobbs. Only by resurrecting the language of constitutional law as a language of expertise can a constitutional debate between conflicting political sides ensue with the border between law and politics ensuring that the mere popularity of a social movement does not make its agenda part of constitutional law.[102]

* Assistant Professor in Constitutional Law at the School of Law of the University of Nottingham.

[1] Reva B. Siegel, Memory Games: Dobbs’s Originalism as Anti-Democratic Living Constitutionalism—and Some Pathways for Resistance, 101 Tex. L. Rev. 1127 (2022).

[2] Reva B. Siegel, The “Levels of Generality” Game, or “History and Tradition” as the Right’s Living Constitution, 47 Harv. J.L. & Pub. Pol’y 563 (2024).

[3] See Siegel, supra note 1, at 1133 (“Originalism supplied a coded language . . . .”).

[4] See Richard H. Fallon, Law and Legitimacy in the Supreme Court 47 (2018).

[5] See, e.g., Antonin Scalia, Originalism the Lesser Evil, 57 U. Cinn. L. Rev. 849, 863–64 (1989) (“[T]he main danger in judicial interpretation . . . is that the judges will mistake their own predilections for the law . . . . Nonoriginalism . . . plays precisely to this weakness . . . . Originalism does not . . . .”).

[6] See, e.g., Grégoire C.N. Webber, Originalism’s Constitution, in The Challenge of Originalism: Theories of Constitutional Interpretation, 147, 160 (Grant Huscroft & Bradley W. Miller eds., 2011) (“An original constitution is law specific enough to be determinate . . . . In short, an original constitution is a set of determinate rules.”).

[7] See Siegel, supra note 1, at 1158–59.

[8] See id. at 1149 (“Originalism supplies a language of impersonal authority—of law—that aligns with the conservative legal movement’s values and goals.”).

[9] See William Lutz, Notes Toward a Definition of Doublespeak, in Beyond Nineteen Eighty-four: Doublespeak in a Post-Orwellian Age 1 (William Lutz ed., 1989).

[10] See Siegel, supra note 1, at 1138 (“[O]riginalism is a value-neutral interpretive method—that method of constitutional interpretation that aspires to insulate adjudication from politics.”).

[11] See id. at 1133 (“A claim on constitutional memory transmuted politics into law.”).

[12] See id. at 1175 (“It functions to conceal rather than to constrain discretion.”).

[13] See id. at 1183 (“The originalist judge may employ the historical record covertly to express values that the originalist judge does not wish to acknowledge as his own.”).

[14] Id. at 1173.

[15] See id. at 1173 (“But Dobbs is the expression of originalism that has developed in the conservative legal movement and the Republican Party over the last forty years.”).

[16] See id. at 1149 (“We have become so accustomed to the originalist’s restorationist claims that we no longer notice that originalists formulaically claim to be impersonally bound by the authority of the past at exactly those points at which they are pursuing movement goals.”).

[17] Id. at 1183; see also Siegel, supra note 2, at 2 (noting that “reasoning from the past in interpreting the Constitution does not insulate judges from making value-based judgments”).

[18] See Or Bassok, Interpretative Theories as Roadmaps to Constitutional Identity: The Case of the United States, 4 Global Constitutionalism 289, 297­–302 (2015).

[19] See id. at 295–316 (exposing how various interpretative methodologies serve as roadmaps to American identity).

[20] Reva B. Siegel, The Jurisgenerative Role of Social Movements in United States Law 16 (2004) (unpublished paper) https://law.yale.edu/sites/default/files/documents/pdf/Faculty/Siegel_Jurisgenerative_Role_of_Social_Movements.pdf [https://perma.cc/3MS9-8WNP] (explaining how legal changes occur due to social movements that “voice the changing constitutional understandings of the demos, though they do not always do so in ways that satisfy the conditions of procedural regularity or majoritarianism associated with lawmaking”).

[21] See Paul W. Kahn, Putting Liberalism in its Place 167 & n.44 (2005) (explaining that the “‘New Haven School’ of constitutional thought” privileged the People’s will over constitutional reason).

[22] See Heather K. Gerken, The Hydraulics of Constitutional Reform: A Skeptical Response to our Undemocratic Constitution, 55 Drake L. Rev. 925, 926–27 (2007) (explaining the connection between “blocking most formal amendments” and the conceptualization of paths to amend the constitution outside of Article V).

[23] See Siegel, supra note 1, at 1138–40 (arguing that while originalism as a constitutional interpretative scheme is a failed idea, as a political idea, it is successful).

[24] See id. at 1183.

[25] See Or Bassok, The Dead-end of the New Haven School of Constitutional Law, 13 Jurisprudence 301 (2022) (reviewing Paul W. Kahn, Origins of Order: Project and System in the American Legal Imagination (2019)).

[26] On constitutional law as a language of expertise see Or Bassok, Constitutional Law: A Language of Expertise?, 103 Geo. L.J. Online 66 (2015).

[27] See Siegel, supra note 1, at 1141 (discussing “[t]he Many Meanings of Originalism”).

[28] See id. at 1170–71 (discussing the critique of academic originalists on Dobbs).

[29] See id. at 1132–33 (“Appealing to the Founders’ Constitution invoked understandings about authority and identity that are rooted in the Nation’s creation story. A claim on constitutional memory transmuted politics into law.”).

[30] See Bassok, supra note 18, at 297–302.

[31] See Siegel, supra note 2, at 583–84.

[32] See Sanford Levinson, Constitutional Faith 37–46 (1988) (distinguishing between a Catholic and a Protestant approach to interpreting the Constitution and noting that the latter promotes the idea of “the community joined together in basically egalitarian discussion of the meaning (and demands) of the relevant materials”).

[33] Cf. William H. Rehnquist, Notion of a Living Constitution, 54 Tex. L. Rev. 693, 698 (1975) (“Once we have abandoned the idea that the authority of the courts to declare laws unconstitutional is somehow tied to the language of the Constitution that the people adopted, a judiciary exercising the power of judicial review appears in a quite different light. Judges then are no longer the keepers of the covenant . . . .”).

[34] See Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 9 (2015) (“[O]riginalism has a unifying core. That core is specified by the Fixation Thesis and the Constraint Principle.”).   

[35] See Jack M. Balkin, The New Originalism and the Uses of History, 82 Fordham L. Rev. 641, 673 (2013) (“[B]ecause of the work of successive waves of social movements for equality, most Americans believe that equality and opposition to racism are central to the American creed. But many people in 1787—or even 1868—might not have seen it the same way.”).

[36] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 901 (1992).

[37] Cf. William E. Forbath, The Distributive Constitution and Workers’ Rights, 72 Ohio St. L.J. 1115, 1117 (2011) (“Much of what lends originalism its public appeal is the narrative of a ‘traditional’ nation that it promises to restore: an America dedicated to personal responsibility, limited government, private property, and godliness.”).

[38] See Paul W. Kahn, Legitimacy and History: Self-Government in American Constitutional Theory 63 (1992) (“[T]he American myth of originalism is linked to a particular idea of popular sovereignty . . . . The popular sovereign suggests identity across time and space, not just linking the entire nation at the moment of birth but linking subsequent generations back to the moment of birth.”).

[39] See Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory in The Challenge of Originalism: Theories of Constitutional Interpretation, 74 (Grant Huscroft & Bradley W. Miller eds. 2011) (contrasting between originalism and theories that view constitutional law as “the narrative constructed by the American people that constitute their identity as a polity”).

[40] See John O. McGinnis & Michael B. Rappaport, The Abstract Meaning Fallacy, 2012 U. Ill. L. Rev. 737, 750 (2012) (“The Constitution is a legal document, and when it employs words that have an existing legal meaning, this is strong evidence that the legal meaning is the correct meaning.”).

[41] See, e.g., Scalia, supra note 5, at 854 (promoting originalism as means for the pursuit of “fixed meaning ascertainable through the usual devices familiar to those learned in the law”); J. Harvie Wilkinson III, Cosmic Constitutional Theory 39 (2012) (arguing that one of “the virtues of originalism” is “harnessing the judiciary’s expertise in traditional legal analysis . . . .”).

[42] See Lawrence Solum, Bassok on Interpretive Theories & American Identity, Legal Theory Blog (Sept. 11, 2015), https://lsolum.typepad.com/legaltheory/2015/09/bassok-on-interpretive-theories-american-identity.html [https://perma.cc/4QEF-DLJQ].

[43] Id.

[44] See Siegel, supra note 1, at 1143 (“Despite fierce disagreements, the law professors all understood originalism as an interpretive method.”).

[45] See id. at 1144.

[46] See id. at 1169.

[47] See id. at 1183–84.

[48] See id. at 1192.

[49] See id. at 1185 (“[O]n closer reading of the Dobbs opinion, one can see that the Court’s finding of a tradition depended on an additional critical factor—on a determination that prior practice was sufficiently respect-worthy and consistent with contemporary constitutional commitments that Americans could identify with it as their tradition.”).

[50] See id. at 1131 (“Originalist methods are said to promote the values of (1) democracy and (2) judicial constraint.”).

[51] See Siegel, supra note 2, at 577 (“[O]riginalism is not a value-neutral, content-independent method. Instead in these circumstances, originalism is a goal-oriented political practice, a way of achieving movement-valued ends.”).

[52] See Siegel, supra note 1, at 1135 (“the Court does not exhibit respect for the history and traditions of the last half-century, demonstrate Burkean concern for preserving the status quo,”), 1175.

[53] Cf. Balkin, supra note 35, at 679 (“Although appeals to tradition may seem conservative on the surface, they are often calls for transformation or revolution.”).

[54] See Siegel, supra note 1, at 1173 (“Dobbs does not employ the methods of academic originalists; it shows no interest in the original public meaning of the Fourteenth Amendment.”).

[55] See id. at 1183 (“In these circumstances, originalism is a practice of living constitutionalism that is not forthright about its values, aims, and commitments.”).

[56] See Siegel, supra note 2, at 605.

[57] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 365 (2022) (dissenting opinion).

[58] Id. at 408.   

[59] Id. at 256 (“Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”).

[60] See also Or Bassok, Legitimacy without Legality, 68 St. Louis U. L.J. 47, 96–97 (2023) (analyzing Alito’s position).

[61] See Siegel, supra note 1, at 1148.

[62] Thomás Zicman de Barros, The Polysemy of an Empty Signifier: The Various Uses of Ernesto Laclau’s Puzzling Concept, J. Pol. Ideologies 1, 9–11 (2023) (discussing the fourth use of the term “empty signifier” as “[a] symbol whose content is problematically poor”).

[63] See, e.g., Robert C. Post & Reva Siegel, Democratic Constitutionalism, in The Constitution in 2020, 25 (Jack M. Balkin & Reva B. Siegel eds. 2009).

[64] Robert Post & Reva B. Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L L. Rev. 373, 374, 378–79, 389, 395 (2007) (“Democratic constitutionalism rests on the commonsense idea that judge-made constitutional law and democratic politics affect each other.”).

[65] Id. at 380–83, 399, 430.

[66] Id. at 380 (“Americans have used a myriad of different methods to shape constitutional understandings—sit-ins, protests, political mobilization, congressional use of section five powers, ordinary federal and state legislation, state court litigation, and so on. These struggles are premised on the belief that the Constitution should express a nomos that Americans can recognize as their own.”).

[67] 2 Bruce Ackerman, We The People: Transformations 261 (1998).

[68] See id. at 10–17, 19, 27–31, 115, 261, 383.

[69] See Post & Siegel, supra note 63.

[70] Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489 (2006).

[71] William N. Eskridge, Jr. & John Ferejohn, A Republic of Statutes: The New American Constitution (2010).

[72] See Gerken, supra note 22, at 930-31 (offering a list of 13 scholars—five of whom are from Yale Law School—who are proponents of the informal constitutional amendment idea).

[73] See Kahn, supra note 21, at 167 & n.44.

[74] See, e.g., Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008) (depicting how a social movement led to a shift in interpreting the Second Amendment).

[75] Siegel, supra note 1, at 1176.

[76] Balkin & Levinson, supra note 70, at 490; see also Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev. 1045, 1068 (2001) (“Partisan entrenchment through presidential appointments to the judiciary is the best account of how the meaning of the Constitution changes over time through Article III interpretation rather than through Article V amendment.”).

[77] Balkin & Levinson, supra note 70, at 490; see also id. at 495, 501.

[78] Id. at 495, 501.

[79] Balkin & Levinson, supra note 76, at 1076.

[80] Jack M. Balkin, The Cycles of Constitutional Time 79 (2020). See also Balkin & Levinson, supra note 76, at 1068 (“Partisan entrenchment through presidential appointments to the judiciary is the best account of how the meaning of the Constitution changes over time through Article III interpretation rather than through Article V amendment.”).

[81] Siegel, supra note 1, at 1176.

[82] See Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 302-03 (2001).

[83] See Gerken, supra note 22, at 932–33 (discussing different divisions within the scholarship that accepts constitutional amendments outside of Article V).

[84] See, e.g., Reva B. Siegel, Constitutional Culture, Social Movement Conflict and the Constitutional Change: The Case of the de Facto ERA, 94 Calif. L. Rev. 1323, 1324-25 (2006); Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927, 946–50 (2006).

[85] See Siegel, supra note 2, at 568 (concluding that conservative justices are engaged “in anti-democratic forms of living constitutionalism”).

[86] See Siegel, supra note 2, at 610–12 (discussing Dobbs as anti-democratic due to its lack of transparency in its reasoning that hides value judgments behind originalism which leads to lack of “democratic oversight” and as a result an inability to mobilize the public against it).

[87] See Siegel, supra note 1, at 1173 (“I show how Dobbs grows out of the movement-party practice of originalism. Dobbs employs hardball appointments politics and constitutional memory frames in the service of constitutional change . . . .”).

[88] See id. at 1200-04 (suggesting inserting excluded voices through the originalist methodology).

[89] Martha C. Nussbaum, Animal Rights: The Need for a Theoretical Basis, 114 Harv. L. Rev. 1506, 1509–10 (2001) (book review) (examining the analogy between killing Jews in the Holocaust and the intentional killing of cattle).

[90] See Ackerman, supra note 67, at 383 (“America’s modern Constitution was created during Roosevelt Administration through processes unknown to Article Five.”).

[91] See Siegel, supra note 1, at 1178–79 (referring to “institutional-legitimacy” reasons for not overruling Roe).

[92] See id. at 1169 (“Dobbs does not employ methods of original public meaning originalism . . . .”).

[93] See id. at 1173 (“But Dobbs is the expression of originalism that has developed in the conservative legal movement and the Republican Party over the last forty years.”). 

[94] See Bassok, supra note 60, at 57–66 (discussing constitutional law as a language of expertise—not to be confused with formalism).

[95] See Bassok, supra note 60, at 51–52.

[96] See id. at 98–101.

[97] See Or Bassok, Beyond the Horizons of the Harvard Forewords, 70 Clev. St. L. Rev. 1 (2021) (demonstrating through a survey of the Harvard Law Review forewords the current dominance of the problematic idea that judicial legitimacy is to be identified with public support as measured in opinion polls).

[98] See Michael J. Klarman, The Supreme Court, 2019 Term, Foreword: The Degradation of American Democracy-and the Court, 134 Harv. L. Rev. 1, 8-11 (2020).

[99] See id.

[100] See Cristina M. Rodriguez, The Supreme Court, 2020 Term, Foreword: Regime Change, 135 Harv. L. Rev. 1, 156–57 (2021).

[101] See id.

[102] See Bassok, supra note 60, at 92–96 (discussing how Dobbs may be a reverse in course in attempting to resurrect constitutional law as a language of expertise).

Suicide, Suicidality, and Pediatric Medical Transition in United States v. Skrmetti and Beyond

Posted by JLPP on Apr 4, 2025 in Per Curiam

Introduction

Children and adolescents experiencing gender discordance are a vulnerable population.  A part of that vulnerability is expressed in high rates of accompanying mental health diagnoses and symptoms. Among the most frightening mental health issues faced by this population, and by their parents and families, is suicide, and more broadly suicidality, which can be defined as “the risk of suicide, usually indicated by suicidal ideation or intent . . .” or as “suicidal thoughts, plans, gestures, or attempts.”[1]

The risks of suicide and suicidality have been repeatedly invoked in defenses of pediatric medical transition and its specific interventions of puberty blockers, cross-sex hormones, and surgery, which are often labeled a part of “gender-affirming care.” The message to parents has often been stark, as admonitions such as “[w]ould you rather have a dead daughter or a live son?” warn parents that a failure to consent to and support medical transition risks the death of their child by suicide.[2] The message to society has been similar: medical pediatric transition is necessary to avoid the deaths of vulnerable children and adolescents. These messages have been widespread, delivered in transgender medical clinics,[3] parent support groups,[4] the Harvard Law Review,[5] the Yale Law School Integrity Project,[6] and in the United States v. Skrmetti litigation currently pending before the United States Supreme Court.[7]

Yet, when Justice Alito, in oral argument in Skrmetti, questioned whether these admonitions are scientifically grounded, he elicited a partial but significant concession from Chase Strangio, the attorney representing the original plaintiffs who challenged Tennessee’s prohibition of pediatric medical transition:

The message that actual suicide is “rare” is discordant with the drumbeat of statements and implications that, as stated in the Harvard Law Review in 2021, “access to … gender-affirming healthcare services is essential—even lifesaving—for trans youth.”[9] The common claims regarding suicidality and attempts, even when they do not mention completed suicides, have left the impression that pediatric gender transition is necessary to avoid completed suicide.    The clarifications that there is a lack of evidence of increased deaths and that completed suicide is “rare” have not generally been provided. Thus, parental, youth, and societal decisions have been influenced by this overriding fear of children and adolescents dying by suicide if they are denied access to pediatric medical transition.

Upon deeper examination, the claims of reduced suicidality, including reduced attempts, from pediatric gender-affirming medical care are also not supported by the available evidence.   This essay will make the opposite argument that, over the longer term, medical pediatric transition increases, rather than reduces, risks of suicidality, attempted suicide, and completed suicide.

I.                 Watchful Waiting versus Gender-affirming Care

Much of current gender-affirming medicine in the United States is focused on giving children what they want as quickly as possible. This leads to mantras such as “children know who they are.”^[10] However, giving children what they want now is not a rational basis for medical interventions with potentially permanent, and certainly long-term, impacts.

The prohibition of pediatric medical transition is consistent with the watchful waiting approach to the care of pediatric gender dysphoria patients. Watchful waiting is not the equivalent of conversion therapy; rather, it involves supportive counseling.^[11] It is based on data that most cases of gender dysphoria in children and adolescents, in the process of the individual’s development, resolve by adulthood.^[12] Watchful waiting was an accepted method of treatment in the field of pediatric transgender medicine in the United States and Canada until ten to fifteen years ago.^[13] Variations of watchful waiting are once again a common form of treatment of pediatric gender dysphoria in much of Western Europe, as some countries have determined that the more aggressive medical interventions of puberty blockers, cross-sex hormones, and surgery are not supported by scientific evidence, and hence, these interventions are experimental and should only be employed in exceptional circumstances.^[14]

The Standards of Care for the Health of Transgender and Gender Diverse People (8th ed. 2022) [hereinafter SOC-8], issued by the World Professional Association for Transgender Health (WPATH), is one of the documents most relied on by advocates of pediatric gender-affirming care. SOC-8 affirms that “prepubescent children are not eligible for medical intervention” and that “gender trajectories in prepubescent children cannot be predicted and may evolve over time.”[15] Hence, even WPATH’s current gender-affirming care standards employ something like watchful waiting for prepubescent children.

The claim that gender discordance existing by puberty and early adolescence necessarily reflects a permanent gender identity has been a justification for the aggressive practices of medical transition prior to adulthood. Upon examination, that claim lacks an empirical basis.  Hence, watchful waiting until adulthood remains a plausible, and indeed superior, approach.

II.               Studies of transgender adults in the United States and Europe find alarmingly high rates of both suicidal ideation and suicide.

Numerous studies in the United States and Europe over decades have found that transgender adults have very high rates of suicidal ideation and suicide, even in the most accepting societies.^[16]

A Swedish population-based matched cohort study covering the period from 1973 to 2003 of those who had undergone sex reassignment surgery found “considerably higher risks for mortality, suicidal behavior and psychiatric morbidity than the general population.”^[17] “[M]ortality from suicide was much higher in sex-reassigned persons, compared to the matched controls.”^[18] The raw data shows 10 deaths by suicide among the 324 sex-reassigned persons, whereas there were 5 deaths by suicide for 3240 matched controls: a rate about twenty times higher.^[19]

More recently, a large-scale Danish study following nearly seven million people over four decades of health and legal records found that transgender individuals had 7.7 times the rate of suicide attempts, and 3.5 times the rate of deaths by suicide, as compared with the rest of the population.^[20] Further, the risk of death by causes other than suicide for the transgender population was nearly double than that for the non-transgender population.^[21] As to mental health concerns, nearly 43% of the transgender population had a psychiatric diagnosis, compared with 7% of the general population.^[22]

A study examining Veterans Health Administration electronic medical records from 2000 to 2011 through official “gender identity disorder” codes found “the rate of suicide-related events” among transgender VHA veterans “more than 20 times higher than were rates for the general VHA population.”^[23]

More recently, the Williams Institute at UCLA School of Law in 2019 published the results from the 2015 US Transgender Survey, touted as the “largest survey of transgender people in the US to date”^[24] This was an online survey of adults (18 and older) which produced 27,715 respondents; like any online survey, it reflects the limitations of such self-selected, online survey results.^[25]  In many respects, the sample was not representative of the US population, being much younger, better educated, and with a higher proportion of white respondents.^[26] Obviously, as a survey of the living, it could not identify completed suicides. Nonetheless, it is striking that “transgender adults have a prevalence of past-year ideation that is about twelve times higher, and a prevalence of past-year suicide attempts that is about eighteen times higher, than the general US population.”^[27] Indeed, 81.7% “reported ever seriously thinking about suicide in their lifetimes, while 48.3[%] had done so in the past year. In regard to suicide attempts, 40.4[%] reported attempting suicide at some point in their lifetimes, and 7.3[%] reported attempting suicide in the past year.”^[28]

SOC-8 also acknowledges that “[s]ome studies have shown a higher prevalence” of depression, anxiety, and suicidality “than in the general population, particularly in those requiring medically necessary gender-affirming medical treatment.”^[29] SOC-8 and others hypothesize that these much higher rates of suicidality stem from discrimination and minority stress.^[30]

But evidence shows that neither discrimination nor minority stress is, in general, associated with completed suicides.^[31] For example, as to race, the suicide rate for Black males in the United States was considerably lower in 1950, under the conditions of state-approved segregation, than it was in 2018 (7.5 versus 11.6 per 100,000).^[32] The rates of suicide for white males from 1950 to 2018 have been two to three times higher than for Black males.^[33] The rates of suicide for males are consistently more than three times the rate for females.^[34] Thus, as to completed suicides, white males, often considered the privileged majority, have had, under very different social conditions as to race and gender as have existed from 1950 to the present, by far higher rates of suicide than groups living under minority stress and even state-approved forms of discrimination.

Hence, suicide rates do not correlate with minority status or a lived experience of discrimination. Indeed, the Danish study of very high rates of suicides and attempted suicide comes from one of the most LGBTQ + friendly nations in Europe and, indeed, the world.^[35] This is not to say that no discrimination exists, but rather to emphasize that discrimination may not be the most important factor as to suicide rates.

Thus, while anti-discrimination efforts are valuable in themselves, they cannot resolve the much higher rates of suicide and suicidality for transgender adults.

The very high rates of suicide and suicidality for adult transgender persons suggests that the representation commonly made to pediatric patients and their parents, that medical transition will permanently resolve mental health issues and distress and save those patients from suicide and suicidality, is false.

III.             The weight of medical research indicates that pediatric medical transition does not reduce suicide or suicidality, and may even increase pediatric suicide and suicidality; further, prohibitions of pediatric medical transition do not increase suicide.

On July 19, 2024, Professor Louis Appleby, University of Manchester, Department of Health and Social Care adviser on suicide prevention, posted on an official UK government site an independent report, titled, “Review of suicides and gender dysphoria at the Tavistock and Portman NHS Foundation Trust.”[36] This independent report was in response to online claims “that there has been a large rise in suicide by current and recent patients of the Gender Identity Development Service (GIDS) service at the Tavistock since an earlier restriction of puberty-blocking drugs that followed a High Court decision in a case (Bell v Tavistock) in December 2020.”[37] Professor Appleby indicated:

In this period of 6 years the data show a total of 12 suicides: 6 in the under 18s, 6 in those 18 and above. In the 3 years leading up to 2020-21, there were 5 suicides, compared to 7 in the 3 years after. This is essentially no difference, taking account of expected fluctuations in small numbers, and would not reach statistical significance. In the under 18s specifically, there were 3 suicides before and 3 after 2020-21.[38]

Beyond finding no statistically significant differences in completed suicides before and after the British Court had limited access to puberty blockers, Professor Appleby stressed the inability to attribute suicide to this single factor, given the complexities of the lives of those involved:

Alongside the figures, there is a summary of the problems faced by the young people who died. These include mental illness, traumatic experiences, family disruption and being in care or under children’s services.”[39]

As previously noted, Justice Alito cited page 195 of the Cass Report, which states:

Tragically deaths by suicide in trans people of all ages continue to be above the national average, but there is no evidence that gender affirming care reduce this.[40]

The Cass Report also noted that “children and young people with gender dysphoria are at an increased risk of suicide, but suicide risk appears to be comparable to other young people with a similar range of mental health and psychosocial challenges. Some clinicians feel under pressure to support a medical pathway based on widespread reporting that gender-affirming treatment reduces suicide risk. This conclusion was not supported by the University of York’s systematic review.”[41]

One of the difficulties with the assumption that medical transition reduces suicide and suicidality is the “co-concurring mental health problems” that are common with gender-discordant children and adolescents.[42] Hence, reducing gender discordance may not, in itself, address these co-concurring mental health issues. Further, it is unclear whether the very high rates of suicidality are from “the inherent distress from the gender dysphoria,” the co-occurring mental health issues, or other issues.[43]

There are studies that indicate an extraordinarily high suicide or suicidality rates for those undergoing pediatric medical transition. One of the earliest studies of suicide came from the Netherlands. In a 1988 study of 141 patients who had undergone sex reassignment surgery, three patients committed suicide post-transition, and sixteen attempted suicide, within two to five years of starting transition.[44] By contrast, the Dutch suicide rate has varied from a high of around 14.4 per 100,000 annual suicides in the early 1980s to around 11 per 100,000 in more recent years.  Thus, the three suicides out of 141 patients over a maximum of five years is exceptionally high, with an equivalent rate of at least 425 suicides per 100,000.[45]

The Cass Report discussed a paper from a Belgium gender clinic which had reported five deaths from suicide among 177 adolescents aged 12–18, where all five had commenced cross-sex hormones.[46] This again is an extraordinarily high rate of suicide for adolescents undergoing medical transition.

These high rates of suicide and suicidality for some who undergo medical transition could occur in part because medical gender transition is commonly initiated too early and aggressively in a vulnerable population with concurring mental health issues. The false prognosis of the permanence of gender discordance and gender identity in adolescence leads to the prescribing of unnecessary and even harmful treatments in a population that includes many who, in the context of watchful waiting, would have resolved their gender discordance without undergoing the complicated medical and personal pathway of transition. An ideologically-driven medical practice leads to severe violations of the “first, do not harm” principle of bioethics.

Particularly in the United States, the development of the science is distorted by a strong bias toward the affirmation of gender-affirming care. For example, the New York Times reported that Dr. Johanna Olson-Kennedy, an “advocate of adolescent gender treatments,” had withheld publication of a study on the impact of puberty blockers, because the data did not support her initial hypothesis that puberty blockers would improve mental health.[47] She blamed her decision on a concern that her work would be “weaponized” by opponents of pediatric medical transition, saying that the work “has to be exactly on point, clear and concise:” meaning that she would not publish data that contradicted her belief in the efficacy of pediatric medical transition.[48]  The actual results were that a quarter of the adolescents were “depressed or suicidal” before treatment, with no apparent improvements from that data two years later after puberty blockers.[49]

Like others, Dr. Olson-Kennedy relied on her clinical experiences in touting the efficacy of medical gender transition, viewing such clinical experience as more reliable than medical research studies.[50] However, the legal regime for approval and use of medications in the United States presupposes that human subjects research in the form of clinical trials is superior to physicians’ experiences in treating patients, as to determining the safety and efficacy of medications.  Hence, the FDA usually requires multiple levels of human clinical trials for drug approval, and double blinded placebo trials are considered the gold standard, as they screen out the bias of physicians and patients toward believing in the efficacy of medical treatments.[51] The FDA has not yet approved any medications for the purposes of gender affirming care of medical gender transition.  Hence, such treatments are currently “off-label,” protected by the rule that once the FDA approves a medication for a specific condition and population, physicians are permitted to prescribe such medications for a different purpose and population.[52] The issues of physician bias and susceptibility to marketing incentives are particularly concerning in off-label use.[53]  The issue of physician bias is particularly concerning where there are strong ideological elements involved, as there are in the area of gender-affirming care, which is linked to contentious understandings of gender and sex which go far beyond the medical treatment of persons experiencing gender discordance.[54]

The Cass report noted a clinical consideration which could explain the perception of efficacy: “a short-term boost in mental wellbeing is to be expected when sex hormones are introduced,” which for those taking testosterone would produce “body changes in line with their identified gender within a few months. The start of long anticipated physical changes would be expected to improve mood, at least in the short term, and it is perhaps surprising that there is not a greater effect.”  Hence, longer-term objective studies are required.[55] Thus, clinicians and researchers may be seeing some short-term improvements in mood when gender-discordant patients experience initial success in achieving their transition, which they have been told will have enormous benefit for them, without actually reducing statistically the incidence of suicide and attempted suicide.

IV.            Research on suicide attempts and especially on suicidal ideation cannot predict actual suicide rates and may overstate the risks of actual suicide.

Advocates of gender-affirming care for children often use studies of attempts and ideation as support for the claim that pediatric medical transition reduces the risk of completed suicide.  But suicide is rare even among those who attempt suicide. In the United States, in 2022, about 49,000 people died by suicide, 1.6 million attempted suicide, 3.8 million made a plan for suicide, and 13.2 million seriously considered suicide.^[56] Thus, about 3% of those who attempt suicide die, and the proportions are much lower for other categories of suicidality.^[57]

Further, groups differ on the percent of attempts that lead to death or actual suicide; thus, females attempt suicide at substantially higher rates than males, even though males have a much higher suicide rate.^[58]

Suicide attempts, and suicidal ideation, indicate substantial distress and are of course of substantial concern. However, the huge and varied gap between suicide itself, and the varied forms of suicidality, demonstrates that research on those steps short of actual suicide cannot necessarily predict suicide rates. This is particularly important because the purported risk of a dead child has been used in manipulative ways to obtain consents to treatment and to promote pediatric medical transition.

V.              Abundant evidence supports high rates of desistance and resolution of gender dysphoria.

Given the extremely high rates of suicide and suicidality in the adult transgender population, the possibility of desistance of gender dysphoria under a watchful waiting approach is particularly significant. Those who through the course of childhood and adolescence resolve gender dysphoria may avoid a lifetime of very high rates of suicide, attempted suicide, and suicidal ideation. This is not intended to denigrate the reality that transgender adults may have a rich and fulfilling life, but it is to consider the impacts on suicide and suicidality of unnecessarily directing minors toward medical gender transition.

Early treatment protocols for gender dysphoria were statistically focused primarily on early-onset gender dysphoria, beginning as early as the toddler years, and most often involving biological males with a female gender identity. The experience with this population is that the dysphoria for most resolves by puberty in the context of a supportive “watchful waiting” protocol.^[59]

In more recent years there has been a very sharp increase in minors presenting with gender dysphoria.^[60]  Unlike the past dominant cohort, most have been biological females, and most have been presenting near, at, or after puberty, rather than early in childhood. This is not controversial: SOC-8 refers to “the exponential growth in adolescent referral rates” and notes that “adolescents assigned female at birth . . . initiating care 2.5–7.1 times more frequently as compared to adolescents who are assigned male at birth.”^[61] SOC-8 also acknowledges a “phenomenon occurring in clinical practice is the increased number of adolescents seeking care who have not seemingly experienced, expressed, (or experienced and expressed) gender diversity during their childhood years.”^[62] Many have pre-existing mental health concerns.^[63]

Recent studies of this apparently late-onset group have also found very high rates of desistance. A German study published in 2024 noted: “The diagnostic persistence over the 5-year follow-up period of less than 50% in all age groups is in line with the literature and presumably reflects the fluidity of the concept of gender identity in childhood and adolescence . . . .”^[64] A secondary analysis of records from the US Military Healthcare System found a four year gender-affirming hormone continuation rate of 70.2%, meaning that nearly 30% had discontinued.^[65] A Dutch study of gender non-contentedness in adolescence and early adulthood concluded: “Gender non-contentedness, while being relatively common during early adolescence, in general decreases with age and appears to be associated with a poorer self-concept and mental health throughout development.”^[66] These studies are consistent with other research indicating a high rate of desistance.^[67]

On the other hand, there is evidence that social and medical pediatric gender-affirming care may extend the period of gender discordance between biological sex and gender identity.^[68] As these mostly do not involve long-term studies, there remains uncertainty as to how long.

VI.            Many US practitioners of gender-affirming care fail to carry out comprehensive psychosocial assessments prior to commencing medical transition.

Many who practice pediatric gender-affirming care do not even attempt to assess or predict long-term gender identity and do not regularly conduct comprehensive psychosocial assessments, as these are perceived as needless barriers to care. The goal instead is to proceed as rapidly as possible with medical intervention, based on the view that “any delay in treatment prolongs a child’s distress and puts them at risk of self-harm.”^[69]

For example, Dr. Colt St. Amand, a listed co-author of SOC-8 and a WPATH certified practitioner and mentor, was quoted as follows by the New York Times in June 2022:

St. Amand thinks the purpose of assessment is not to determine the basis of a kid’s gender identity. “That just reeks of some old kind of conversion-therapy-type things . . . . I think what we’ve seen historically in trans care is an overfocus on assessing identity . . . . People are who they say they are, and they may develop and change, and all are normal and OK. So I am less concerned with certainty around identity, and more concerned with hearing the person’s embodiment goals. Do they want to have a deep voice?  Do you want to have breasts?  You know, what do you want for your body?”^[70]

Thus, St. Amand does not attempt to “shield teenagers from taking medication with effects they might later decide they didn’t want . . . . If the drugs don’t suit them . . . they can simply stop.”^[71]

Another prominent advocate of gender-affirming care negatively characterized assessments of long-term gender identity as “singling out trans kids, and specifically with a mental-health provider, not medical staff, to interrogate, to go down this comprehensive inquisition of their gender.”^[72]

Thus, the provision of professional mental health assessment is characterized as a barrier and burden rather than a positive provision of care. Other critics called such limits “abusive” and “unethical” and as undermining patient autonomy.^[73]

These negative views of assessment were elicited in response to an earlier draft of SOC-8, which for pediatric patients recommended “several years” of persistently identifying with another gender and a requirement of a comprehensive diagnostic assessment prior to commencing medical transition.^[74] These requirements are minimized in the final draft; for example, gender incongruence should be “marked and sustained” prior to commencing gender-affirming medical care, but no particular period of time is indicated.^[75] Thus, the SOC-8 final standards were significantly influenced by advocacy and ideology.

VII.          According to SOC-8 commencing medical transition without comprehensive assessments amounts to practice without empirical support and may not be in the long-term best interests of the patient

The final SOC-8 standards did adhere to the recommendation of a “comprehensive biopsychosocial assessment of adolescents,” despite the pushback against assessment as a “harmful assertion of psychogatekeeping.”^[76]  SOC-8 warned:

There are no studies of the long-term outcomes of gender-related medical treatment for youth who have not undergone a comprehensive assessment. Treatment in this context (e.g., with limited or no assessment) has no empirical support and therefore carries the risk that the decision to start gender-affirming medical interventions may not be in the long-term best interest of the young person at that time.^[77]

SOC-8 further noted that findings of “low regret can only currently be applied to youth who have demonstrated sustained gender incongruence and gender-related needs over time as established through a comprehensive and iterative assessment.”^[78]

SOC-8 relies entirely on Dutch studies and protocols as an evidentiary basis for gender-affirming care in adolescence. Yet, even those American clinics that conduct interdisciplinary assessments generally do not follow the much more extensive Dutch protocols. Thus, Reuters interviewed staff at eighteen gender clinics across the United States and found that “None described anything like the months-long assessments [Dutch clinicians] adopted in their research.”^[79]  Indeed, seven of the eighteen clinics “are comfortable prescribing puberty blockers or hormones based on the first visit, depending on the age of the child.”^[80]

Further, nothing prevents practitioners who disagree with the need to conduct a “comprehensive biopsychosocial assessment” (or who simply lack the resources to carry such an assessment) from ignoring the SOC-8 recommendations. Those recommendations have no binding authority.

Thus, many practitioners in the United States lack an evidence-based medical justification for their protocols with minors—even according to the assessment of that evidence by SOC-8. These clinics are prescribing medical interventions with life-long consequences on a highly vulnerable pediatric population, without an evidentiary basis for their protocols.

The lack of an evidentiary basis for the actual practice of pediatric medical gender transition in the United States has important implications for the intertwined issues of mental health, suicidality, and suicide. Without reliable long-term data about the psychological impact of pediatric gender transition, there is no way to justify the claim that such care reduces suicide, suicidality, or even assists mental health, on a long-term basis.

CONCLUSION

The messages of pediatric medical transition advocates have been stark: If you are experiencing gender dysphoria/discordance, you are permanently transgender. You will experience great distress, and be in serious risk of suicide, until and unless you undergo medical transition. Your mental health issues will be resolved, or at least significantly alleviated, only when you medically transition. These messages claim to be based on listening to pediatric patients but are actually a recruitment into an ideology. These messages claim to be based on evidence, but in actuality, most of the claims lack the kind of quality evidence generally required in medical care.

By contrast, watchful waiting protocols may affirm the reality of the experience of gender dysphoria/discordance, but do not immediately ascribe a permanent transgender identity to that experience. Patients and parents can be told that the child or adolescent may be transgender, but there are also other possibilities, given the diverse possibilities as to gender identity and sexual orientation. Hence, the goal of treatment would be to accompany the patient and build resilience through what may be a journey of many years as to gender identity and sexual orientation. Mental health issues and diagnoses are to be treated as issues of their own and are not assumed to be resolvable through medical transition. Medical interventions, which risk physical health complications and infertility and may prematurely cement gender identity, are deferred to avoid unnecessary suffering.

The current state of evidence indicates that watchful waiting protocols, properly implemented, are much more likely, over the long term, to reduce suicide and suicidality for the highly vulnerable population of children and adolescents experiencing gender discordance, as compared to the intrusive and aggressive practices of pediatric medical transition.

If the United States Supreme Court in Skrmetti upholds Tennessee’s prohibition of pediatric medical transition, it will not need to have resolved these complex and evolving issues of medical practice for a highly vulnerable population, but rather will have left room for others, including states, to develop public policy over time.  On the other hand, if the Court invalidates Tennessee’s law, it will have created a constitutional straight jacket which will make the Court itself responsible for harms to this vulnerable population.

* * *

*Harwell G. Davis Professor of Constitutional Law, Director, Center for Children, Law and Ethics, Cumberland Law School, Samford University.  Although there are substantial deletions, changes, and additions, much of this essay is adapted from an amicus brief on behalf of detransitioner Max Lazzara in United States v. Skrmetti. See generally Brief of Max Lazzara as Amicus Curiae Supporting Respondents, United States v. Skrmetti, No. 23-477, https://www.supremecourt.gov/DocketPDF/23/23-477/328204/20241015112955436_23-477_Amicus%20Brief.pdf [https://perma.cc/7L7S-DL5V].

[2] Joint Appendix at 905, United States v. Skrmetti, No. 23-477 (Declaration of Chloe Cole) [hereinafter J.A.]; Emily Bazelon, The Battle Over Gender Therapy, N.Y. TIMES (Jun. 15, 2022), https://www.nytimes.com/2022/06/15/magazine/gender-therapy.html [https://perma.cc/QS6N-53ZV]; Aron Hirt-Manheimer, Choosing to Have a Living Daughter, Reform Judaism (June 4, 2021), https://reformjudaism.org/blog/choosing-have-living-daughter [https://perma.cc/7LM4-PM5F] (“Our only choice was to have a dead son or a living daughter.”); Brief of Max Lazarra as Amicus Curiae Supporting Respondents at 4, United States v. Skrmetti, No. 23-477, https://www.supremecourt.gov/DocketPDF/23/23-477/328204/20241015112955436_23-477_Amicus%20Brief.pdf [https://perma.cc/7L7S-DL5V] [hereinafter Lazzara Brief].

[3] See Bazelon, supra note 2; Lazzara Brief, supra note 2, at 3–4; J.A. at 905.

[4] See Bazelon, supra note 2; Lazzara Brief, supra note 2, at 4.

[5] See Outlawing Trans Youth: State Legislatures and the Battle over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2167–69 (2021).

[6] See Anne Alstott, Meredithe McNamara et al., An Evidence-Based Critique of the Cass Review on Gender-affirming Care for Adolescent Gender Dysphoria  38 (2024) https://law.yale.edu/sites/default/files/documents/integrity-project_cass-response.pdf [https://perma.cc/B3HK-6MED] (citing Amy E. Green et al., Association of Gender-Affirming Hormone Therapy with Depression, Thoughts of Suicide, and Attempted Suicide Among Transgender and Nonbinary Youth, 70 J. Adolescent Health. 643 (Apr. 2022)). The Green study cited by the Integrity Project claims it establishes “less attempted suicide in ages 13-17” for those accessing cross-sex hormones but fails to report the finding that “[f]or youth under age 18, the aOR for seriously considering suicide in the past year did not reach statistical significance (aOR = .74, p = .08)” Id. at Table 4.  Nor did the Integrity Project discuss the finding, also for those under age 18, that “[t]he pattern of statistical significance for findings related to past-year suicidality was less consistent, which may indicate challenges related to statistical power when examining fairly infrequent outcomes such as suicidal thoughts and behaviors, particularly among smaller subgroups of individuals.” Id. at 647. The study’s claim that suicidal thoughts and behaviors are “fairly infrequent” seems inconsistent with, for example, a claim in the Harvard Law Review that “[M]ore than one-third of transgender high school students attempt suicide in a given year.”  Outlawing Trans Youth, supra note 5, at 2163. The Integrity Project thus appeared to follow the unfortunately common pattern of picking out results that support their thesis, while ignoring those that did not—a pattern perhaps repeated in the very study they cited here.  At issue still is the reliability of the Green study, which, as a self-reported non-probability study, as the study itself admits, cannot demonstrate causation—meaning it cannot actually prove that the use of cross-sex hormones is responsible for any positive results that appear statistically.  See Green et al., supra note 6, at 648.

[7] See, e.g., Transcript of Oral Argument at 31–33, 39, 48, 87–89, United States v. Skrmetti, No. 23-477.

[8] Id. at 88.

[9] Outlawing Trans Youth, supra note 5, at 2167.

[10] Ed Yong, Young Trans Children Know Who They Are, The Atlantic (Jan. 15, 2019), https://www.theatlantic.com/science/archive/2019/01/young-trans-children-know-who-they-are/580366/ [https://perma.cc/9C3N-Y85B].

[11] J.A. at 443–45, 504.

[12] Id.

[13] See Bazelon, supra note 2; see generally World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transexual, Transgender, and Gender Nonconforming People (7th ed. 2012).

[14] See J.A. at 332–43, 582–92; Children and young people’s gender services: implementing the Cass Review recommendations, NHS England (Aug. 7, 2024), https://www.england.nhs.uk/long-read/children-and-young-peoples-gender-services-implementing-the-cass-review-recommendations/ [https://perma.cc/T2B8-P459]; Care of Children and Adolescents with Gender Dysphoria: Summary of national Guidelines, Socialstyrelsen (Swedish National Board of Health and Welfare) 3 (Dec. 2022) https://www.socialstyrelsen.se/globalassets/sharepoint-dokument/artikelkatalog/kunskapsstod/2023-1-8330.pdf [https://perma.cc/6LJY-9G2P]; Azeen Ghorayshi, Youth Gender Medications Limited in England, Part of Big Shift in Europe, N.Y. Times (Apr. 9, 2024), https://www.nytimes.com/2024/04/09/health/europe-transgender-youth-hormone-treatments.html [https://perma.cc/7RSX-FG76].

[15] World Pro. Ass’n for Transgender Health, Standards of Care for the Health of Transgender and Gender Diverse People at S67 (8th ed. 2022) [hereinafter SOC-8].

[16] See J.A. at 398–400.

[17] Cecilia Dhejne et al., Long-Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden, 6 Pub. Lib. Sci. One 1, 1 (2011).

[18] Id. at 5.

[19] Id.

[20] See Annette Erlangsen et al., Transgender Identity and Suicide Attempts and Morality in Denmark, 329 J. Am. Med. Assoc.  2145, 2145–2153 (2023).

[21] Id. at 2150.

[22] Id. at 2148.

[23] John R. Blosnich et al., Prevalence of Gender Identity Disorder and Suicide Risk Among Transgender Veterans Utilizing Veterans Health Administration Care, 103 Am. J. Public Health e27, e27 (2013).

[24] Jody L. Herman et al., Suicide Thoughts and Attempts Among Transgender Adults, UCLA  Williams Inst. 1 (Sept. 2019), https://williamsinstitute.law.ucla.edu/publications/suicidality-transgender-adults/ [https://perma.cc/PKD5-JLVA].

[25] Id. at 5.

[26] Id. at 10–11.

[27] Id. at 1.

[28] Id.

[29] SOC-8 at S171 (emphasis added).

[30] Id.; see also Herman, supra note 24, at 2.

[31] J.A. at 396–97.

[32] National Center for Health Statistics, Centers for Disease Control and Prevention (2019), https://www.cdc.gov/nchs/data/hus/2019/009-508.pdf [https://perma.cc/HH57-37CD].

[33] Id.

[34] Id.

[35] See Erlangsen, supra note 20; Denmark – a very LGBT+ friendly country, Denmark, https://denmark.dk/society-and-business/denmark-a-very-lgbt-friendly-country [https://perma.cc/3CZP-Q684].

[36] Louise Appleby, Review of Suicides and Gender Dysphoria at the Tavistock and Portman NHS Foundation Trust: Independent  Report, UK National Health Service (Jul. 19, 2024), https://www.gov.uk/government/publications/review-of-suicides-and-gender-dysphoria-at-the-tavistock-and-portman-nhs-foundation-trust/review-of-suicides-and-gender-dysphoria-at-the-tavistock-and-portman-nhs-foundation-trust-independent-report [https://perma.cc/3Z2X-22NT].

[37] Id.

[38] Id.

[39] Id.

[40] Cass, Independent review of gender identity services for children and young people: Final report at 195, ¶ 16.22 (2024)  https://cass.independent-review.uk/wp-content/uploads/2024/04/CassReview_Final.pdf [https://perma.cc/3EA6-3ACG] [hereinafter Cass Report].

[41] Id., at 186, ¶ 15.36.

[42] Id., at 186, ¶ 15.37.

[43] Id.

[44] See generally Bram Kuiper & Peggy T. Cohen-Kettenis, Sex reassignment surgery: A study of 141 Dutch transsexuals, 17 ARCHIVES SEXUAL Behav. 439 (1988).

[45] 1,894 suicides in 2016, Centraal Buraeu Voor De Statistiek (June 28, 2017) https://www.cbs.nl/en-gb/news/2017/26/1-894-suicides-in-2016 [https://perma.cc/W6L2-SELH].

[46] Cass Report, at 186, ¶ 15.41 (citing Gaia Van Cauwenberg et al., Ten years of experience in counseling gender diverse youth in Flanders, Belgium. A clinical overview, 33 Intl.  J. Impotence Rsch. 671 (2021)).

[47] Azeen Ghorayshi, U.S. Study on Puberty Blockers Goes Unpublished because of Politics, Doctor Says, N.Y. Times (Oct. 23, 2024), https://www.nytimes.com/2024/10/23/science/puberty-blockers-olson-kennedy.html [https://perma.cc/DD7M-JG85].

[48] Id.

[49] Id.

[50] Id.

[51] See Gail A. Van Norman, Drugs, Devices, and the FDA: Part 1: An Overview of Approval Processes for Drugs, 25 J. Am. Coll. Cardiology: Basic Transl. Sci. 170, 170–72 (2016).

[52] Lars Noah, Preempting Red State Restrictions on the Use of FDA-Approved Drugs in Gender-Affirming Care?, 2024 Utah L. Rev. 833, 836–42 (2024).

[53] See generally Gail A. Van Norman, Off-Label Use vs Off-Label Marketing of Drugs: Part 1: Off-Label Use—Patient Harms and Prescriber Responsibilities, 8 J. Am. Coll. Cardiology: Basic Transl. Sci. 224 (2023).

[54] See, e.g., Mahmoud v. Taylor, No. 24-297 (pending United States Supreme Court case regarding parental religious liberty as to lack of notice and opt-out for public school LGBTQ+ curriculum and teaching for K–5 children); Department of Education v. Louisiana, 603 U.S. ___ (2024) (Supreme Court denied a petition for a partial stay by the Biden Administration, leaving in place a preliminary injunction blocking the Department of Education from implementing a rule that would expand the definition of sex discrimination under Title IX to include sexual orientation and gender identity).

[55] Cass Report, at 185, ¶ 15.27; see also Cass Report at 184, ¶ 15.26.

[56] Suicide Data and Statistics, Centers for Disease Control and Prevention (Oct. 29, 2024), https://www.cdc.gov/suicide/facts/data.html#:~:text=Suicide%20deaths%2C%20plans%2C%20and%20attempts%20in%20the%20United%20States&text=1%20death%20every%2011%20minutes,made%20a%20plan%20for%20suicide [https://perma.cc/CRL3-2NRD].

[57] Id.

[58] Id.

[59] J.A. at 650–55; see also James M. Cantor, Transgender and Gender Diverse Children and Adolescents: Fact-Checking of AAP Policy, 46 J. Of Sex & Martial Therapy 307, 307–13 (2020); Jiska Ristori & Thomas D. Steensma, Gender Dysphoria in Childhood, 28 Int’l Rev. of Psychiatry 13, 18–22 (2016); Kenneth J. Zucker, The Myth of Persistence: Response to “A Critical Commentary on Follow-up Studies and ‘Desistance’ Theories about Transgender and Non-conforming Children” by Temple Newhook et al., 19 Int’l J. Of Transgenderism 231, 231–45 (2018).

[60] SOC-8 at S43.

[61] Id.

[62] Id. at S44–45.

[63] Rittakerttu Kaltiala-Heino et al., Two Years of Gender Identity Service for Minors: Overrepresentation of Natal Girls with Severe Problems in Adolescent Development, 9 Child & Adolescent Psychiatry & Mental Health 1, 5 (2015).

[64] Christian J. Bachmann et al., Gender Identity Disorders Among Young People in Germany: Prevalence and Trends, 2013-2022, 121 Dtsch Arzteblatt Intl. 370, 370–71 (2024).

[65] Christina M. Roberts et al., Continuation of Gender-affirming Hormones Among Transgender Adolescents and Adults, 107 J. Clinical Endocrinology & Metabolism e3937, e3939 (2022).

[66] Pien Rawee et al., Development of Gender Non-Contentedness During Adolescence and Early Adulthood, 53 Archives Sexual Behav. 1813, 1813 (2024).

[67] J.A. at 652–55.

[68] J.A. at 635–41, 651, 655–660.

[69]  Robin Respaut et al., Why Detransitioners are Crucial to the Science of Gender Care, Reuters (Dec. 22, 2022), https://www.reuters.com/investigates/special-report/usa-transyouth-outcomes/ [https://perma.cc/ZP7T-GEZP].

[70] Bazelon, supra note 2.

[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] SOC-8,at S32, S48.

[76] Id. at S48; Bazelon, supra note 2.

[77] SOC-8 at S51.

[78] Id. at S61.

[79] Chad Terhune et al., As More Transgender Children Seek Medical Care, Families Confront Many Unknowns, Reuters (Oct. 6, 2022), https://www.reuters.com/investigates/special-report/usa-transyouth-care/ [https://perma.cc/WA6E-T4YE].

[80] Id.