Guam joins Oklahoma in approving government-funded religious charter schools after legislature overrides governor’s veto

When the legislature of Guam passed a bill to allow religious schools to become publicly funded charter schools, Gov. Lou Leon Guererro did the right thing: she vetoed it. In a powerful message, Gov. Leon Guererro explained:

I cannot sign a law that authorizes the use of taxpayer dollars to sponsor the establishment of religious schools, even if the school teaches my religion. As state actors or governmental entities, Guam’s charter schools must respect the Constitution and the Organic Act of Guam, which clearly prohibit public schools from discriminating based on religion, or promoting or coercing students to engage in religious activities.

Guam’s attorney general, however, disagreed, and issued an opinion citing recent Supreme Court decisions he argued allows for the public funding of religious schools:

[T]he Free Exercise Clause forbids the government from requiring religious entities to “choose between their religious beliefs and receiving a government benefit.” (Trinity Lutheran Church of Columbia, Inc. v. Comer). A State cannot “exclude some members of the community” from a public benefit program “because of their religious exercise” or because of “their anticipated religious use of the benefits.” (Carson v. Makin). Bill 62-37 would not violate the US Constitution.

Unfortunately, the legislature followed the recommendation of its attorney general, overriding the veto, and setting up a likely constitutional challenge. Trinity Lutheran and Carson are very different cases from the problem this bill poses. Their holdings have not been used to allow for direct taxpayer funding of religious schools. In fact, as Gov. Leon Guerrero pointed out, just a few weeks ago, the U.S. Supreme Court declined the opportunity to question the 4th U.S. Circuit Court of Appeals’ conclusion that charter schools fulfilling the state’s duty to provide universal free education are “state actors” subject to the restrictions of the First Amendment.

The question of whether the First Amendment allows for publicly funded religious charter schools may make its way to the Supreme Court before long.

Prior to Guam’s legislative override, a similar decision was made in Oklahoma when the state’s Charter School Board voted to approve a Catholic school’s application for charter school funding. And, just this week, a lawsuit was filed by nine Oklahoma residents and an educational nonprofit to stop it. The plaintiffs are being represented by Americans United for Separation of Church and State, the ACLU, the Education Law Center and the Freedom From Religion Foundation. BJC Executive Director Amanda Tyler shared on social media that it was great to see those organizations “taking on this brash attempt to ignore Oklahoma law and use government to advance religion.”

While BJC has long supported public schools, BJC opposes government-funded religion.  For more on how public schools protect religious liberty, see this printable handout, BJC’s resource page on Religion in Public Schools, and a recent Respecting Religion podcast.