The Oklahoma Supreme Court’s ruling on a constitutionally unconstitutional, publicly funded Catholic school: The case of St Isidore of Seville

The U.S. Supreme Court’s conservative majority seemed on Wednesday to be on the verge of taking a transformative step—a step that would for the first time allow overtly religious schools to be fully funded by the taxpayers.

Charter schools have to be non-sectarian according to the 1994 law that created the program, reported Justice Kentanji Brown Jackson. She wondered if the federal law was unconstitutional. McGinley said that it is.

Challenging that non-religious requirement Wednesday were two Catholic dioceses in Oklahoma that tried to establish a publicly funded Catholic school, St. Isidore of Seville, as a charter school. The Oklahoma Supreme Court ruled that the state’s ban on state-sponsored religion was unconstitutional.

He will tell the justices that St. Isidore wants to have all the funding benefits of a public school without the obligation not to discriminate in hiring, firing or requirements for students. The state has maintained that everyone is welcome but it does insist that students follow the requirements of the school and attend Mass if they so choose.

“Religious liberty is really the freedom to worship, which is what St. Isidore is opposed to,” argued the Republican Attorney General of Oklahoma. It is not taxpayer-funded, state-sponsored religious instruction.

The drafters of the federal and state constitutions, he says, “wisely understood how best to protect religious freedom by preventing the state from sponsoring any religion at all.”

If the Catholic Church can get millions of dollars in public funding for their religious missions, there will be a lot of consequences. If the Catholic church is free to indoctrinate charter students in Catholic doctrine, he says, “substitute satanic beliefs, Wiccan, Muslim, Sharia, Jewish — whatever you want to substitute.”

That said, there is one practical fly in the judicial ointment of this case. With the court closely divided on some religious questions, Justice Amy Coney Barrett, a staunch advocate of religious rights, has recused herself from the case, without explanation.

She and her husband are both faculty fellows at Notre Dame’s Religious Liberty Clinic, which represents St. Isidore, and she was close to Nicole Garnett who was an early legal advisor.

Faith and Religion: The Oklahoma Supreme Court’s decision against religious charter schools, ruled unanimously by a lower court in his absence from the bench

Justice Barrett’s absence from the bench could lead to a tie vote on the court. That would automatically uphold the existing Oklahoma Supreme Court decision, and proponents of religious charter schools would have to start looking for another test case.

“All the religious school is saying is “Don’t exclude us on account of our religion”, stated justice kavan at one point. And when you have a program that’s open to all comers except religion, that seems like rank discrimination against religion.”

He asked if teachers could teach if those religious schools were added to public charter schools. How would the nation’s disability rights laws apply for children? What would the curriculum be if a religious school barred the teaching of evolution? You can have a gay teacher or not. The questions, he said, are infinite, and could tie up school districts in litigation for years.

At the end of the day, all but three of the court’s liberals believed that there was no excuse for the Catholic school to be part of the public charter school program.

Justice Elena Kagan, addressing one of the lawyers representing the archdioceses, noted that the charter school system was enacted to increase curricular flexibility so that the state, for example, could create schools that focus more on the arts, or on math and science, or language proficiency.

She said that states, when they created their charter school systems, “did not want to start funding every religious school in the country. Now you’re saying that you have to fund the Yeshiva. yes, you have to go fund the [madrasas]; yes, you have to go fund” countless other religious groups because you have established a school system that includes religious charter schools.

The contract the St. Isidore negotiated with the state was modified to incorporate various church autonomy principles, as she pointed out. Lawyer Michael McGinley acknowledged that some provisions were struck in the charter school contract.

“What if you had wanted to strike out other provisions because you thought the religious education was not in line with the mission of the church?” he asked. McGinley acknowledged that was “part of the contracting process.”

Changing that long-held constitutional norm, he said, could have profound and hugely divergent consequences in different states across the nation. Some states, for instance, might find that “our traditions are not to allow the teaching of religion in our public schools.”