Can the US have Catholic charter schools? Justices to decide now after hearing case

WASHINGTON (OSV News) -- The U.S. Supreme Court on April 30 heard oral argument in a case concerning the Archdiocese of Oklahoma City's effort to establish the St. Isidore of Seville Catholic Virtual School, which would be the nation's first publicly funded Catholic charter school if it survives the challenge.

If the high court ultimately sides with the school, the case could result in allowing public dollars to directly fund religious schools and lead to a reappraisal of longstanding legal interpretations of the First Amendment's Establishment Clause.

In more than two hours of argument, lawyers arguing in favor of an Oklahoma school board's 2023 vote to approve the Archdiocese of Oklahoma City's application to establish St. Isidore of Seville argued the proposed Catholic school met all criteria for approval as a charter school and should not be discriminated against for its religious identity.

But a lawyer for the state argued it would be a violation of both constitutional separation of church and state and Oklahoma's state law.

Gregory Garre, the attorney for Oklahoma's attorney general, said allowing religious charter schools to operate as public schools would sow "uncertainty, confusion and disruption."

"All we're saying is that we're not going to create, fund, and control the curriculum of schools that want to teach religion as truth," Garre said.

The case placed the state's governor and attorney general -- both Republicans -- at odds over the school board's decision to provide taxpayer funds for the Catholic school, with the governor backing the effort but the attorney general calling it unconstitutional.

Last year, the Oklahoma Supreme Court sided with the attorney general, finding the state contract with the Catholic school was in violation of state laws, the state constitution and the U.S. Constitution.

Michael McGinley, representing the school on behalf of Notre Dame Law School's Religious Liberty Clinic, argued that when the state "invited private actors into a government funding program," it cannot then "categorically exclude the religious."

"It's crystal clear that that's what Oklahoma has done here," McGinley said. "Everyone agrees that St. Isidore met all of the other requirements, and its charter was extinguished only because of the nonsectarian requirement."

Justice Brett Kavanaugh at one point asked whether "all the religious school is saying is, 'Don't exclude us on account of our religion.'"

Supreme Court precedent, Kavanaugh said, has "made very clear -- and I think those are some of the most important cases we've had -- of saying you can't treat religious people and religious institutions and religious speech as second class in the United States. And when you have a program that's open to all comers except religion -- 'No, we can't do that. We can do everything else' -- that seems like rank discrimination against religion."

Justice Elena Kagan said a ruling in favor of the Catholic school could lead to various religious groups following suit to establish religious charter schools; but she expressed concern that majority religious groups would be more able to meet the curriculum requirements than minority ones, leading to disfavorment of some religions.

"I've just got to think that there are religions that are going to have no problems dealing with all the various curricular requirements, and religions that are going to have very severe problems dealing with all the curricular requirements, and we're going to end up in a state of the world which has kind of accepted establishment religions, and more different, more fundamentalist, more -- use the adjective you want -- religions that seem peculiar to many eyes, but are deeply felt," being excluded, she said.

In court filings, Oklahoma Attorney General Gentner Drummond argued that permitting the school to move forward could pave the way to Oklahoma taxpayers subsidizing schools that hold religious beliefs contrary to their own.

In prior statements, Drummond said that if Oklahomans are "being compelled to fund Catholicism ... tomorrow we may be forced to fund radical Muslim teachings like Sharia law." He then mentioned the governor's openness to welcome a "Muslim charter school funded by our tax dollars" as evidence for his argument.

Both Catholics and Muslims, which Drummond singled out, are also tiny minorities in Oklahoma, representing 8% and less than 1%, respectively, of the state's population.

At one point during oral argument, Justice Samuel Alito asked Garre if the state's argument was in fact "motivated by hostility toward particular religions."

Garre disputed that suggestion, arguing Oklahoma's nonsectarian requirement is based on longstanding legal precedent that the government should not favor one religion over another.

In a statement, Drummond said, "This case is ultimately about safeguarding religious liberty."

"Religious liberty means every citizen is free to worship as he or she sees fit. It does not mean the government should back religious indoctrination," Drummond said. "The justices were clearly engaged. Their questions were robust and meaningful."

Alliance Defending Freedom, a public interest firm involved in the case, has argued the early U.S. government had examples of direct support for religious schools, shortly after the Constitution was enacted, including an 1803 treaty with Native Americans providing financial support for a Catholic priest involved in education. ADF argued the rise of public schools, with Scripture reading and prayer, in the 1800s served as a government-backed "form of ‘least-common-denominator Protestantism.'" As the Catholic Church established its own schools in response, ADF noted lawmakers began enacting legislation in the 1870s, often known as Blaine Amendments, that prevented Catholic schools from receiving funds on the basis that they were "sectarian" schools.

In a joint statement released in response to the arguments, Archbishop Paul S. Coakley of Oklahoma City and Bishop David A. Konderla of Tulsa said, "We are grateful that the U.S. Supreme Court heard our case and now entrust it to their wisdom."

"Of course, we pray and hope for a decision that stands with religious liberty and the rights of Oklahoma families to make their own decisions in selecting the best educational options for their children," they said.

Justice Amy Coney Barrett did not participate in the argument, as the court previously indicated she would recuse herself from the case. No official reason was given for her decision, but Barrett was previously a professor at Notre Dame Law School, which is involved in the case.