WASHINGTON − The Supreme Court’s conservative majority on April 30 seemed sympathetic to the Catholic Church’s bid to create the nation’s first religious charter school in Oklahoma, a potentially major expansion of the use of taxpayer money for religious education.
However, the chief justice’s relative silence makes it possible the case could end in a 4-4 tie, since one of the six conservative justices, Amy Coney Barrett, recused herself from the case.
Apart from Chief Justice John Roberts, the other conservative justices involved in the case appeared swayed by the argument that barring the church’s participation would be discriminatory.
“All the religious school is saying is don’t exclude us on account of our religion,” said Justice Brett Kavanaugh.
The court’s liberal justices, meanwhile, raised concerns about how religious charter schools could favor one religion over another and entangle the government in religious issues.
“Really, what you’re saying is the free exercise clause trumps the essence of the establishment clause,” Justice Sonia Sotomayor told the attorney for the state’s charter school board. “The essence of the establishment clause was, ‘We’re not going to pay religious leaders to teach their religion.'”
The Oklahoma case presents a major test of the separation of church and state.
The U.S. Constitution prohibits the government from establishing a religion, but also says the government cannot prohibit people from freely exercising religion.
In some recent cases where those portions of the Constitution have been in tension, the Supreme Court came down on the side of protecting religious exercise, expanding the role of religion in public life.
A similar decision in the Oklahoma case could greatly increase the use of taxpayer money for religious education.
Here’s a summary of key moments from oral arguments before the high court about the proposed religious charter school.
Arguments ended on April 30 with evident divisions between the three justices appointed by Democrats and several Republican-appointed justices on the court.
With Justice Amy Coney Barrett, a Trump appointee, recused from the case, the outcome could come down to Chief Justice John Roberts, who did not show his hand clearly. He said early in the arguments that the Supreme Court’s previous rulings dealt with a less significant mixture between state governments and schools than the current Oklahoma cases involve.
If the justices split 4-4 in the case, the Oklahoma Supreme Court’s ruling against the Catholic school seeking charter status would stand. However, the U.S. Supreme Court might later choose to hear a similar case with Barrett’s participation.
– Aysha Bagchi
Justice Samuel Alito questioned how religious charter schools could become the only option for students in some areas.
“Why would that be the only option of such a parent?” Alito asked. “The parent could always send his or her child to the schools that you characterize as public schools.”
In some jurisdictions, such as New Orleans, the only public schools are charter schools, according to Gregory Garre, representing the Oklahoma attorney general. Half the public schools are charter schools in other places, such as Denver or Washington, D.C., he said.
In Oklahoma, there are jurisdictions where children are assigned to charter schools by default, Garre said.
“You can get out of that, but you have to raise your hand and say, ‘No, I don’t want to go to the Catholic charter school,’” he said. “That raises the same problem as raising your hand in the public school and saying you don’t want to participate in prayer today.”
– Bart Jansen
Justice Samuel Alito, a George W. Bush appointee, accused the Oklahoma attorney general’s office of being “motivated by hostility toward particular religions” in its argument that religious schools shouldn’t be eligible for charter school funding.
Alito quoted the state attorney general as having said “many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths,” but that approval of the Catholic school would require the state to approve similar applications from all faiths.
“We have statement after statement by the attorney general that reeks of hostility toward Islam,” Alito alleged.
“That’s entirely incorrect, your Honor,” said Gregory Garre, who was arguing on behalf of the Oklahoma attorney general. Garre said the attorney general was simply saying that once you started bringing certain religious groups but potentially not others into the government, religious strife would follow.
“If your concern is the treatment of Islam or Muslims, then the concern should be the Muslim family whose only practical option is the religious charter school that happens to teach the Catholic faith as truth,” Garre said.
– Aysha Bagchi
Justice Ketanji Brown Jackson noted that Oklahoma supports religious education through vouchers to defray the cost of private schools.
Gregory Garre, the attorney for the Oklahoma attorney general, called that an important point.
He said that’s the “win-win” the Supreme Court should endorse without requiring the state to support public religious schools.
– Maureen Groppe
Justice Elena Kagan asked what would happen in more than 40 states with charter schools if the high court allowed religious schools to get public funding.
“What kind of issues would they have to confront in the future?” Kagan asked.
Gregory Garre, representing the Oklahoma attorney general, said every charter school law would become unconstitutional because all of them say charter schools are public and nonsectarian.
Garre said some states might change their laws to adapt, but others would abandon charter schools to avoid having religious schools.
“This is going to create uncertainty, confusion and disruption for potentially millions of school children and families across the country,” Garre said.
The court would also be putting itself in a position to judge future cases about whether charter schools could exclude gay teachers or teach creationism rather than evolution, Garre said.
“There are going to be a lot of line drawing,” Garre said.
– Bart Jansen
Justice Samuel Alito said the Oklahoma constitution’s ban on religious public schools has an “unsavory discriminatory history.”
Gregory Garre, who represents the Oklahoma attorney general, disputed that a 19th-century movement spurred by prejudice, particularly against Catholic immigrants, was behind that provision.
He said there were other reasons for the provision, including the government’s “Christianization” campaign of Native American children.
Alito was unconvinced.
“Do you think that anti-Catholic bigotry had disappeared from Oklahoma by 1907?” asked the justice, who is one of six practicing Catholics on the Supreme Court.
– Maureen Groppe
Justice Brett Kavanaugh said questioned how Oklahoma could block funding for religious charter schools.
“They’re built on the idea that innovative approaches to education would increase the quality of education in a particular community,” Kavanaugh said.
But Gregory Garre, representing the Oklahoma attorney general, said Congress has designated charter schools as public schools since 1994.
“That’s the way it’s always been understood,” Garre said.
If the Supreme Court rules in favor of St. Isidore, Garre said, “There are going to be other states that ramp it up, no question.”
“But there are going to be other states that want out,” he said.
“This is going to have a dramatic effect on charter schools across the country,” Garre added.
– Bart Jansen
Justice Brett Kavanaugh made it clear he’s skeptical about Oklahoma keeping religious schools out of its charter school program in light of the Supreme Court’s past rulings.
“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,'” Kavanaugh said.
Kavanaugh suggested that Oklahoma’s policy is in tension with those decisions.
“That seems like rank discrimination against religion, and that’s the concern that I think you need to deal with here,” Kavanaugh told Gregory Garre, who was arguing for the Oklahoma attorney general.
Garre said the state attorney general’s office respects the principle of not discriminating against religion, but states are still allowed to maintain public schools that are strictly secular.
“That’s all the state of Oklahoma has done here,” Garre said.
– Aysha Bagchi
Justice Neil Gorsuch asked what standard courts should use to determine whether religious charter schools are public schools.
“We need a test, a legal test,” Gorsuch said.
Gregory Garre, a lawyer representing the Oklahoma attorney general, said charter schools bear all the hallmarks of public entities and that the state “can’t fund an entity to teach religion as truth in public schools.”
Charter schools are created by the state legislature, have state supervision and control through oversight of curriculum and finances, and annual evaluations, Garre said.
“Here you have state control,” Garre said.
– Bart Jansen
Chief Justice John Roberts asked how extensively the state could require charter schools to teach certain subjects, such as history.
U.S. Solicitor General John Sauer said if there were a requirement to teach evolution and a school rejected it, there would be no opt-out for the school. The state would argue a compelling interest in teaching the subject and the court would have to assess it, he said.
Justice Elena Kagan suggested mainstream religions could meet the state’s requirements, but more obscure ones might have trouble if the government curriculum violated religious schools’ beliefs. She said, “There’s a line out the door” of people seeking charter funding.”
“I’ve got to think there are religions that will have no problems dealing with all the various curricular requirements and religions that are going to have very severe problems,” Kagan said. “We’re going to end up in a state of the world with kind of establishment religions and more different, more fundamentalist, more use-the-adjective-you-want religions that seem peculiar to many eyes, but that are deeply felt.”
Sauer said he would be surprised if there were charter schools unwilling to meet the requirements.
“I’d be very surprised if that were the practical outcome,” Sauer said. “If there is, in fact, a ‘line out the door,’ so to speak, that line out the door will increase the diversity of options for parents and students that have programs that are similar to Oklahoma.”
– Bart Jansen
Gregory Garre, representing the Oklahoma attorney general, told the justices that St. Isidore is seeking a special status: the right to establish a religious charter school plus an exemption from non-discrimination requirements that apply to every other charter school and distinguish public schools from private schools.
If the Supreme Court goes along with this request, Garre said, it would render unconstitutional the federal charter school program and the laws of 47 states.
“And it would result in the astounding rule that states not only may, but must, fund and create public religious schools,” he said, “an astounding reversal from this court’s time-honored precedents.”
– Maureen Groppe
Justice Brett Kavanaugh, who was appointed by President Donald Trump in 2018, appeared to be pushing back on fears his liberal colleagues on the court were voicing. Some of the liberal justices suggested a win for the Catholic school could force states to fund schools with concerning curricula or admissions policies if the states wanted to fund other charter schools.
But Kavanaugh suggested a ruling for the Catholic school would have simple implications: states can’t favor one religion over another, or favor religion generally over secular schools, when approving charter schools.
“In other words, if it has charter schools, it must allow secular and religious?” Kavanaugh asked U.S. Solicitor General John Sauer.
“Correct, correct,” Sauer responded.
– Aysha Bagchi
Justice Neil Gorsuch asked what a state would have to do if it wanted to make clear that charter schools are government entities, which would mean they could be secular.
U.S. Solicitor General John Sauer said the schools would have to be created directly by law and be controlled by public officials.
He said California’s system is similar.
If the Supreme Court rules for St. Isidore, Sauer said, states that don’t want to allow religious private schools could restructure their programs.
– Maureen Groppe
Justice Ketanji Brown Jackson said St. Isidore is claiming it’s being discriminated against, but it’s asking for a benefit no other school gets: the ability to establish a religious public school.
The state’s program, she said, allows only nonsectarian schools. But St. Isidore wants to change the terms of the contract.
Michael McGinley, who represents St. Isidore, said the program can’t be limited to nonsectarian schools because that’s discrimination.
– Maureen Groppe
Justice Elena Kagan, an Obama appointee, suggested that a win for the Catholic school could jeopardize the quality of a publicly funded education nationwide.
“I would say that a state doesn’t have to open up an educational program to private organizations,” Michael McGinley, representing St. Isidore of Seville Catholic Virtual School, replied. “If you do open it up, then you can’t exclude the religious because they’re religious.”
Kagan said a state with a charter school system might not want to start funding every religious school, such as an Orthodox Yeshiva or a Muslim school.
“I don’t have to imagine very hard to come up with 100 hypotheticals like this because religious communities are really different in this country and are often extremely different from secular communities in terms of the education they think is important for their young people.”
McGinley said the state isn’t forced to fund religious schools. But because the state created its charter-school program, religious ones shouldn’t be excluded, he argued.
“When you open a program to other private organizations, you can’t exclude the religious,” he said.
– Bart Jansen and Aysha Bagchi
Justice Sonia Sotomayor said the hallmark of public education is that taxpayers pay for it.
“The government is doing this,” she said, trying to make a case for why charter schools are public. “Here the government is the actual creator of the charter school.”
Michael McGinley, an attorney representing St. Isidore, disagreed. He said the only way the school receives public funds is if parents choose to send their children there.
– Maureen Groppe
Michael McGinley, representing St. Isidore of Seville Catholic Virtual School, told the justices the school is a private entity led by a private board, so it should be able to compete for government funding.
“The free exercise clause bars a state from inviting private parties to participate in an educational funding program while excluding those who exercise their faith,” McGinley said. “That is precisely what Oklahoma law does here.”
Oklahoma law labels charter schools as public schools. But McGinley said it “is incorrect” to label St. Isidore a government entity.
“Casting the cloak of state action too broadly risks intruding on individual liberty,” McGinley said.
– Bart Jansen
Justice Neil Gorsuch, a Trump appointee, noted that the state charter school board has argued that throughout U.S. history, states have sometimes funded religious schools.
That kind of historical argument is especially significant with today’s conservative Supreme Court, in which justices often rule that constitutional provisions should be interpreted today according to what they meant at the time they were ratified.
But Gorsuch said there are also historical examples in which religious schools were denied funding and didn’t file a lawsuit arguing their constitutional rights had been violated.
James Campbell, a lawyer arguing on behalf of the statewide school board that wants religious schools to be eligible, responded that the history of public funding for religious schools at least shows such funding doesn’t violate the Constitution’s bar on the government establishing an official religion.
– Aysha Bagchi
Justice Sonia Sotomayor said the Oklahoma charter board sought to have one provision of the Constitution protecting the free exercise of religion trump another provision called the establishment clause, which prevents spending government money on religion.
Sotomayor said the school only hires Catholic teachers or those who teach Catholic morals. But she asked how it would work if the state funded a Christian school and not schools of other religions.
“Your school doesn’t want to be a charter school, it wants to be a religious school,” Sotomayor said.
“If the government is picking and choosing a particular religion, and not agreeing to allow other religions into the program, then that would be an establishment clause violation,” Campbell agreed.
But he said St. Isidore would be open to other religious applicants.
“Under our theory, it would be open to other religious organizations that are willing to abide by the terms of the program,” Campbell said.
– Bart Jansen
Justice Elena Kagan laid out a case for why charter schools are public schools, a key legal distinction.
“These are state-run institutions. They give the charter schools a great deal of curriculum flexibility,” she said. “But with respect to a whole variety of things, the state is running these schools.”
Campbell, the attorney for the charter school board, said St. Isidore would be run by a privately selected board of directors. All Oklahoma is doing, he said, is “exercising contractual oversight.”
“The state is not running these schools,” Campbell said.
– Maureen Groppe
Justice Samuel Alito gave the state charter school board a chance to rebut criticism that some students might have no option other than attending a religious charter school.
Campbell, the attorney for the charter school board, said that would not happen in Oklahoma. No student has to go to a charter school and every school district must have other options.
If that changed, he said, a family who didn’t want to send their child to that school could raise a legal challenge.
“The mere specter that that might result in the future is not a reason to categorically exclude religious groups on the front end,” he said.
– Maureen Groppe
Chief Justice John Roberts said previous rulings dealt with less significant state involvement in schools, such as placing wood chips on a playground or providing tuition credit or tax credits. He asked what case would support St. Isidore.
“This does strike me as a much more comprehensive involvement,” Roberts said.
James Campbell, representing the charter school board, cited a case that found when the state provides a benefit, it can’t exclude people because of religion.
“It’s telling religious groups and religious groups alone that they don’t belong,” Campbell said.
– Bart Jansen
Two of the liberal justices – Justices Ketanji Brown Jackson and Sonia Sotomayor – immediately dove into whether religious public schools entangle the government in making decisions about religion.
Jackson said a charter school’s curriculum is reviewed by a state governing body.
James Campbell, the attorney representing the charter school board, said that happens at a “very high level.”
Sotomayor asked what would happen if the school didn’t want to teach evolution or the history of slavery.
“As much as you want to say that you are not looking at the substance, you’re charged by law to do that, because you have to determine whether it’s a quality education,” she said. “You have to accept the teachings of the Church with respect to certain principles.”
– Maureen Groppe
Justice Clarence Thomas said the crux of the debate is that the school is engaging in some sort of state action and that it is a state entity, as a public Catholic charter school.
But James Campbell, representing the State Charter School Board, said St. Isidore is neither. He said the school was created by two Catholic organizations and came up with its own charter program and funding. He also said there was no government control.
“They should not be treated as second class,” Campbell said in his opening.
– Bart Jansen
James Campbell, a lawyer arguing on behalf of the statewide charter school board, opened the day’s proceedings by arguing that Oklahoma state laws discriminate against religion.
Oklahoma “state law categorically bars religious groups and programs, deeming religion to be the wrong kind of diversity,” Campbell said.
That doesn’t square with the U.S. Constitution’s protection for religious exercise, Campbell urged.
– Aysha Bagchi
The case before the justices pits the Oklahoma attorney general against an Oklahoma Catholic school known as “St. Isidore” and the Oklahoma state charter school board that initially approved St. Isidore to become a virtual charter school. That approval decision was struck down by the Oklahoma Supreme Court.
The Trump administration has decided to hear the school board and Catholic school’s cause. U.S. Solicitor General John Sauer will be arguing for the administration.
– Aysha Bagchi
Oklahoma’s top educator is rooting for St. Isidore.
“Excluding religious schools from our charter school program in the name of 19th-century religious bigotry is wrong,” Oklahoma Superintendent of Public Instruction Ryan Walters said in a statement.
Walters said he hopes the Supreme Court “will stand with parents and families in opposition to religious discrimination.”
– Maureen Groppe
Among those planning to watch the arguments in person is Rachel Laser, head of Americans United for Separation of Church and State.
Laser said allowing religious public schools would be a “dangerous sea change for our democracy.”
“It’s un-American and unconstitutional to force people to fund religious indoctrination or discrimination,” she said in a statement before the arguments.
– Maureen Groppe
In today’s arguments, John Sauer is making his first appearance before the Supreme Court as President Donald Trump’s solicitor general. Sauer asked for time to make the federal government’s case for why the Catholic Church can run a charter school.
Sauer, who clerked for the late Justice Antonin Scalia, is a former federal prosecutor and former solicitor general of Missouri.
He represented Trump in last year’s blockbuster case about presidential immunity.
– Maureen Groppe
The case is one of three that could make this a blockbuster term for religious rights.
The court is also deciding whether parents with religious objections can request that their children be excused from class when books with LGBTQ+ characters are being used. And they’re deciding whether a Wisconsin Catholic charitable organization should be exempt from state unemployment taxes.
During oral arguments, the court appeared likely to side with the religious groups.
– Maureen Groppe
The Catholic Church says religious charter schools are the logical next step following a trio of rulings since 2017 that allowed taxpayer funds to flow to religious organizations when a program is generally available to others.
In 2022, the court said Maine couldn’t exclude religious schools from an indirect aid program based on the schools’ religious use of the funds.
In 2020, the court said a Montana scholarship program could not exclude religious schools if the program is open to any private schools.
In 2017, the court backed a church preschool’s challenge to its exclusion from a Missouri grant program to resurface playgrounds.
– Maureen Groppe
Justice Amy Coney Barrett is not participating in the oral arguments.
Although she didn’t give a reason for her recusal, Barrett is close friends with the Notre Dame Law School professor who was an early legal adviser to the Catholic Church in Oklahoma.
Her absence means the court could deadlock 4-4 on a decision. If they do, that would leave in place the Oklahoma Supreme Court’s decision that religious charter schools are not allowed.
– Maureen Groppe
The court’s decision is expected to turn on whether charter schools – which are publicly funded but have private operators – are public schools under the law.
If they are, religious charter schools could violate the Constitution’s prohibition on the government backing a religion.
If they’re not, prohibiting the church from participating in the state’s charter school program could be discrimination under the Constitution’s promise that Americans can practice religion freely.
– Maureen Groppe
The Catholic education that the church wants to offer Oklahoma children through the state’s public charter school program is likelyfamiliar to the justices.
Seven were raised Catholic. Six are still practicing Catholics And six went to Catholic schools.
That might give extra weight to one of the church’s arguments for why the justices should allow them to run a charter school. They argue that Oklahoma’s insistence that public schools be “free from sectarian control,” stems from a 19th-century movement that led to multiple states blocking religious schools from receiving taxpayer dollars. The movement was spurred by prejudice against immigrants, particularly Catholic immigrants, they say.
Oklahoma Attorney General Gentner Drummond, however, has countered that the state’s constitution can’t be smeared with that stain.
– Maureen Groppe
