Portside

During oral arguments on Wednesday in one of the biggest religion cases in generations, it became clear that the Supreme Court appears all but certain to compel Oklahoma to establish and fund a Catholic charter school, opening the floodgates to mandatory taxpayer support for religious education across the country. Indeed, the Republican-appointed justices took turns accusing the state of engaging in unconstitutional discrimination against religion by declining to admit a church-run academy into its public school system. Their position, if adopted, would transform U.S. public education, striking down restrictions on religious charter schools enshrined in federal statute as well as the laws of 46 states and the District of Columbia. It would bury what remains of church–state separation, forcing every American to subsidize the indoctrination of children into faiths they may not share. And it would further enfeeble secular public education, diverting billions of dollars away from inclusive public schools toward religious academies that openly discriminate against those outside their faith.

The conservative justices, however, did not sound concerned about any of these extreme consequences. If anything, they appeared eager to accelerate them—casting the long-standing nationwide ban on sectarian charter schools as an egregious form of anti-religious bigotry. This Supreme Court has evidently sunk so deep into the mindset of conservative grievance that it now feels victimized by the very concept of public secularism.

Wednesday’s case, Oklahoma Statewide Charter School Board v. Drummond, was engineered by conservative activists seeking to expand state funding of religious education. They worked with the diocese to create St. Isidore—a full-time virtual Catholic school that provides overtly sectarian instruction—and apply for participation in Oklahoma’s charter school program. The board that runs this program narrowly approved the school’s application, making it the first religious charter school in the nation. But Attorney General Gentner Drummond, a Republican, objected; the state’s constitution, he pointed out, forbids the expenditure of public money on any “sectarian institution” and requires that public schools be “free from sectarian control.” The Oklahoma Supreme Court sided with the attorney general last year, ruling that the state constitution prohibits taxpayer funding of St. Isidore.

The school’s lawyers then appealed to the U.S. Supreme Court, arguing that its exclusion from the charter school program violated the free exercise clause of the First Amendment. Justice Amy Coney Barrett recused herself, presumably because of her close friendship with an attorney advising St. Isidore. The court took up the case nonetheless, reflecting a clear desire among the conservative justices to declare that Oklahoma had violated the school’s constitutional rights.

Just a decade ago, that argument would have been unthinkable. The Supreme Court had long held that the First Amendment’s establishment clause, which safeguards separation of church and state, bars states from spending public money on religious instruction. In recent years, though, SCOTUS has turned that precedent on its head, holding instead that the First Amendment’s free exercise clause requires states to fund religious schools. Until now, it has focused on private schools, ordering states to extend tax credits, vouchers, and scholarships to religious academies. This case extends that line of precedent all the way to public education.

Justice Brett Kavanaugh seemed indignant that anyone would even question whether St. Isidore has a right to taxpayer dollars. “All the religious school is saying is, Don’t exclude us on account of our religion,” he told Gregory Garre, who defended the attorney general’s effort to block the school. “I mean, if you go and apply to be a charter school and you’re an environmental studies school, or you’re a science-based school, or you’re a Chinese immersion school, or you’re a English grammar–focused school, you can get in. And then you come in and you say, Oh, we’re a religious school. It’s like Oh, no, can’t do that, that’s too much. That’s scary. We’re not going to do that.”

His voice rising, Kavanaugh continued lecturing Garre. “Our cases have 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,” the justice said. “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.”

The problem with Kavanaugh’s position, of course, is that Oklahoma treats religion differently because the First Amendment treats it differently, limiting its entanglement with the state. The Framers imposed this rule not out of hostility toward the faithful, but to ensure that believers of every stripe—and nonbelievers too—are not forced to support a faith that conflicts with their conscience. Kavanaugh does not appear to care that non-Catholic Oklahomans would be subsidizing Catholic indoctrination if St. Isidore is approved, or that non-Catholic students could face discrimination or expulsion for failing to share the school’s beliefs. His tunnel vision blocks out these competing interests, leaving him with the false impression of heinous anti-Catholic persecution.

Justice Samuel Alito raised similar gripes, then took the complaint of persecution to a new level, accusing Oklahoma of perpetuating a long and “unsavory” history of “anti-Catholic bigotry.” Alito claimed, incorrectly, that the state constitution’s limits on public funding of religion emerge out of a campaign against American Catholics. Chief Justice John Roberts, along with Justice Neil Gorsuch, embraced St. Isidore’s absurd argument that it isn’t a public school at all, merely an arm of the church that happens to get state money. In reality, the school would operate as a governmental entity, funded and regulated by state officials. Yet the conservative justices seemed eager to embrace the fiction that it is somehow “private” for First Amendment purposes—in part, perhaps, to evade concerns about the infusion of religious proselytization into a public school curriculum.

But these justices simply cannot escape the reality that their preferred outcome in this case threatens to topple the entire legal regime governing the charter school system. That is because charter schools are public schools, by every metric, and requiring the establishment of a Catholic charter school would blow up the legal foundation of the entire enterprise. Why? As Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson each took pains to note, the federal statute that governs charter schools—through which billions of dollars are disbursed each year—requires that these institutions be “nonsectarian” in their “programs, admissions policies, employment practices, and all other operations.” This same rule is enshrined into the laws of the 46 states (plus D.C.) that allow charter schools. Yet St. Isidore intends to provide Catholic education, force students to attend Catholic Mass, and exclude students who do not “support” its Catholic “mission.”

Remarkably, Trump’s Justice Department—which stepped into the case to support St. Isidore—did not bother defending this federal statute. Instead, Solicitor General John Sauer dismissed it as a First Amendment violation. Kagan sounded incredulous: “You’re saying,” she asked Sauer, that the law “is so patently unconstitutional that you will not defend” it? Sauer affirmed that in the Trump administration’s view, Congress cannot require that publicly funded charter schools maintain secular “operations,” so the provision is unenforceable. Weeks into his tenure as solicitor general, Sauer is already defying his obligation to defend federal law, sabotaging Congress’ handiwork with the same reckless zeal that defined his efforts to help overturn the 2020 election and win Trump sweeping federal immunity from prosecution.

If St. Isidore prevails, as it almost certainly will, the ruling will not just permit states to establish religious charter schools. It will compel them to do so, under threat of federal lawsuit. And, as Kagan told Sauer, the resulting regime will favor “accepted establishment religions,” which have the resources to establish and lobby for their own schools, over smaller “minority religions,” which won’t have sufficient influence to get through the door. It will also invite a flood of challenges to “curricular requirements” that states attempt to impose on charter schools. More-fundamentalist religions will attempt to cut aspects of the state-approved curriculum that clash with their beliefs. They may, as Sotomayor said, try to replace evolution with creationism, or another topic with a church-approved belief. The schools may then demand exceptions from the statewide tests that ensure that charters are meeting educational standards. With each challenge, the states’ authority to regulate these schools will be weakened, each exception giving institutions more leeway to defy government standards. Eventually, Kagan warned, states may have to fund Orthodox Jewish yeshivas, which teach no secular subjects at all.

There is a reason why the nation’s major charter school organizations have lined up to oppose St. Isidore’s demands. These groups want charter schools to carry out the central mission of public education as an engine of civic democracy that gives all children the tools to flourish as people and citizens. St. Isidore seeks to subvert that goal by handing control of charters over to religious establishments that want to inculcate children in their faith with the compulsory support of taxpayers. The dueling visions of education could not be more different. Unfortunately, only one aligns with this Supreme Court’s preference for religious supremacy over the rights of everyone else, the vision of the Founders be damned.

Mark Joseph Stern is a Slate senior writer.

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