Today, the U.S. Supreme Court heard arguments on whether Oklahoma can force taxpayers to fund the state’s first-ever Catholic charter school. Opponents say the school violates the Constitution’s First Amendment, which forbids the government from endorsing a preferred religion, and they worry that a court victory could give right-wing religious conservatives even greater permission to mix church and state.
The case, Oklahoma Statewide Charter School Board v. Drummond, involves the St. Isidore of Seville Catholic Virtual School, which is seeking to become the first publicly funded religious school in the nation. The school’s lawyers say that the institution deserves access to Oklahoma’s taxpayer funds for charter schools because depriving them of access would violate the First Amendment Free Exercise Clause, which requires the government to allow people to freely practice their religion. The school also says it’s unfair discrimination to forbid religious schools from participating in a taxpayer-funded state charter school program that other schools can participate in.
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The court’s conservative majority plucked this obscure case from lower courts to further a “religious freedom” agenda.
Oklahoma’s Supreme Court already ruled against the school, saying that public funding would violate the Constitution’s Establishment Clause. However, during questioning, Chief Justice John Roberts asked how this case differs from the 2021 case of Fulton v. City of Philadelphia, in which the court ruled that Catholic group should be allowed to participate in a city foster care program despite its religious-based refusal to work with same-sex couples, NBC News reported.
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“How is that different from what we have here?” he asked. “You have an education program and you want to not allow them to participate with a religious entity.”
Conservative Justice Brett Kavanaugh then questioned whether a ruling against St. Isidore would affect religious groups with government contracts that provide services like foster care, nursing homes, or homeless shelters. If those groups are considered government entities, he argued, they wouldn’t be allowed to exercise their religious rights.
Kavanaugh argued that as long as parents can choose to send their children to another school, it doesn’t violate the Establishment Clause to spend taxpayer funds on a religious school. His argument reflects the 2002 case of Zelman v. Simmons-Harris, a 5-4 decision in which the court ruled that states may (but are not required to) include religious schools in taxpayer private school voucher programs, as long as children can choose not to attend them.
At one point, conservative Justice Samuel Alito said that current law permits charter schools to teach that being LGBTQ+ is a “perfectly legitimate lifestyle,” but doesn’t allow governments to fund religious viewpoints.
At another point, Kavanaugh suggested that rules requiring charter schools to be non-religious are a form of “rank discrimination against religion.” This view holds that it’s unconstitutional discrimination for the government to provide benefits of any kind without also providing religious versions of that same benefit, Vox.com write Ian Millhiser noted.
Liberal Justice Elena Kagan focused on the implications of this case, asking if religious charter schools could refuse to educate children who don’t share the school’s faith or whether taxpayers would be forced to fund religious schools that don’t want to teach certain subjects, like a school that chose to teach creationism instead of science or a Jewish school that only taught in Hebrew.
She questioned the degree to which the Constitution requires the government to accommodate religious viewpoints of every type and worried whether a ruling might enable mainstream religions to run charter schools at the exclusion of smaller spiritual faiths.
Currently, the 47 states that allow public charter schools prohibit religious entities from participating. The court’s ruling could open the door to religious groups demanding inclusion in state charter school programs. Conservative Justice Neil Gorsuch tried to downplay this concern, saying that states could require religious charter schools to provide a “secular” education whose objectives and content are overseen by state educational officials.
The court’s conservative wing takes a proactive approach to religious freedom
After Justice Amy Coney Barrett’s confirmation gave conservatives a 6-3 majority on the court, five justices handed religious freedom advocates a victory in Roman Catholic Diocese of Brooklyn v. Cuomo, giving individuals who object to laws on religious grounds a broad new right to ignore them.
In the court’s 2022 Kennedy v. Bremerton School District decision, they said coaches can lead post-game Christian team prayers (though the court’s decision misrepresented facts of the case).
More recently, the court heard the case of Mahmoud v. Taylor, in which plaintiffs argued that schools must notify parents if their children will receive “instruction on gender and sexuality in violation of their parents’ religious beliefs,” and must give parents an opportunity to opt their child out of such instruction.
Barrett has recused herself from hearing Oklahoma Statewide Charter School Board v. Drummond, which means the case could potentially get a split 4-4 decision. If this happens, then the Oklahoma Supreme Court’s ruling against the religious school will stand. Anti-LGBTQ+ religious conservatives have long wanted a Supreme Court victory that would redirect billions of taxpayer funds from public schools to religious homeschools and charter schools.
The Supreme Court is expected to issue its rulings in Mahmoud and Drummond by this summer.
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