SCOTUS Excited To Knock Down Pesky Wall Between Church And State

Don't worry, they'll pretend it was never there, and then call you a bigot for saying it was.

Photo by Norbert Buduczki on Unsplash

This week, at least four Supreme Court justices voted to grant certiorari in Oklahoma Charter School Board v. Drummond, in which petitioners hope to strike down the state’s ban on religious organizations operating public schools. If the Supreme Court agrees (as seems likely), it will continue to erode the protections of First Amendment’s Establishment Clause, the guarantee that governments cannot pass laws “respecting an establishment of religion,” particularly in the educational context.

It’s Saint Isidore. The Clue Is Right There In The Name.

On June 5, 2023, the Oklahoma Charter School Board (OCSB) approved a charter school application filed by St. Isidore of Seville Catholic Virtual School, an explicitly religious school that describes itself as “fully incorporating Catholic teachings into every aspect of the school, including its curriculum and co-curricular activities.”

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Charter schools are public schools, funded entirely by tax dollars and not tuition payments. Under Title 70, a charter school must comply with 18 mandates, including the requirement that it “shall be nonsectarian in its programs, admission policies, employment practices, and all other operations” and may not be “affiliated with a nonpublic sectarian school or religious institution.”

Ignoring the plain language of the statute, the OCSB approved St. Isidore’s application anyway. This teed up a legal battle over the constitutionality of the Oklahoma law, which was almost certainly what the OCSB intended to do all along.

Oklahoma’s Republican Attorney General Gentner Drummond went directly to the Oklahoma Supreme Court seeking a declaration that the OCSB’s contract with St. Isidore violated state and federal law and was unconstitutional. On June 25, 2024, the court granted declaratory relief and issued a writ of mandamus ordering the OCSB to rescind its contract with St. Isidore.

The Oklahoma Supreme Court’s Decision

The court found that allowing St. Isidore to operate as a charter school violated both Title 70’s requirement that a charter schools be “nonsectarian in its programs, admission policies, employment practices, and all other operations” as well as the First Amendment’s Establishment Clause:

The framers' intent is clear: the State is prohibited from using public money for the "use, benefit or support of a sect or system of religion." Although a public charter school, St. Isidore is an instrument of the Catholic church, operated by the Catholic church, and will further the evangelizing mission of the Catholic church in its educational programs. The expenditure of state funds for St. Isidore's operations constitutes the use of state funds for the benefit and support of the Catholic church. … Enforcing the St. Isidore Contract would create a slippery slope and what the framers' warned against – the destruction of Oklahomans' freedom to practice religion without fear of governmental intervention.

On this point, the Oklahoma Supreme Court got it exactly right. It is clear from the historical record that the framers were concerned about the undue influence religious institutions in general and the Catholic Church in particular might wield in the new United States. As North Carolina delegate Henry Abbot argued during debate over whether to ratify the Constitution:

It is feared, by some people, that, by the power of making treaties, they might make a treaty engaging with foreign powers to adopt the Roman Catholic religion in the United States, which would prevent the people from worshipping God according to their own consciences. … Many wish to know what religion shall be established. I believe a majority of the community are Presbyterians. I am, for my part, against any exclusive establishment; but if there were any, I would prefer the Episcopal.

In response, the framers drafted the First Amendment’s Establishment Clause, which guaranteed that the government would make no law “respecting an establishment of religion,” assuring Anti-Federalists like Abbot that this country would not be swept into the same religious conflicts as Europe, even if the federal government signed treaties with Catholic countries or the Vatican itself. And with that guarantee in place, the states ratified the Constitution.

This is basic, third-grade social studies stuff. It’s the subject of one of the most famous Presidential speeches in history. And now at least four Supreme Court justices aren’t so sure after all. (It takes four justices to grant certiorari.)

The OCSB and St. Isidore make three arguments in their cert petition. First, they contend that charter schools are private rather than state actors and therefore aren’t bound by the First Amendment. Second, they argue that even if the First Amendment does apply, recent precedents of the Roberts Court make it permissible for a state to literally hand over public education to the Catholic Church. And third, they suggest that the Attorney General demonstrated “hostility to religion” when attempting to convince the OCSB to follow the law.

Argument 1: Public Schools Aren’t State Actors

Charter schools have been trying for years to convince courts that they are not state actors. Most recently, the Supreme Court denied certiorari in a 2023 case called Charter Day School v. Peltier, allowing the Fourth Circuit’s en banc ruling that charter schools are state actors to stand. In that case, the school argued that it was entitled to require girls to wear skirts because the school’s chivalry policy treated women as “fragile vessels that men are supposed to take care of and honor.”

The Fourth Circuit held that charter schools are state actors because the state has an affirmative obligation to educate students and has delegated that authority to charter schools. And even the Roberts Court would have to admit that the First Amendment prevents a public school from enforcing a “code of chivalry” that requires girls to wear skirts as befits a “fragile vessel.” (Alito and Thomas would probably be on board, though.)

The state cannot contract around the First Amendment to accomplish something via a third party that it would be prohibited from doing directly. As a result, virtually every court to address this question has concluded that charter schools are indeed state actors, with the exception of a corner case from the Ninth Circuit.

But now the Supreme Court is going to take up that question. And if the Supreme Court determines that charter schools are not state actors for purposes of the Equal Protection Clause of the Fourteenth Amendment, those schools will then be free to do a hell of a lot more than just force girls to wear skirts and impose explicitly religious curricula. They would also be free to openly discriminate against LGBTQ+ students, teachers, and parents. Such a ruling would essentially transform public charter schools funded entirely by taxpayer dollars into private schools.

Argument 2: It’s Opposite Day For The Establishment Clause

In a 2022 case called Carson v. Makin, the Supreme Court struck down Maine’s prohibition on funding sectarian religious schools in very rural areas. Under the prior rubric, counties too small to support schools of their own could pay for local children to attend private schools, but only if those schools were nonsectarian.

But in Carson, Chief Justice Roberts read the First Amendment to mean that states are not only permitted but required to permit explicitly religious sectarian institutions to compete for taxpayer funds. Under the Court’s new rules, if a law’s “effect is to disqualify some private schools from funding solely because they are religious,” that law “must be subjected to the strictest scrutiny.”

This not only invalidated a Maine law that had been working just fine for more than 40 years, but also transformed the Establishment Clause from a protection for individuals against undue religious intrusion into public life into a vehicle to protect churches and other religious institutions from efforts to maintain the separation between church and state.

In his concurrence, Justice Gorsuch announced the new rules of the road. Where once the state was barred from delegating important functions to religious institutions, the burden had shifted to the state to prove that it was not forcing churches to choose between “giving up their sincerely-held religious beliefs or participating in public life.” And by “participating in public life,” he meant “receiving your tax dollars.”

St. Isidore reads Carson as standing for the proposition that a state law may not “exclude religious entities… solely because they are religious.” That offends the core principles of the First Amendment, but it may not offend two-thirds of the current Supreme Court.

Argument 3: Hostility to Religion

Finally, OCSB suggests that Oklahoma Attorney General Gentner Drummond demonstrated “open hostility towards religion” and denigrated certain faiths as “reprehensible.” If true, that would appeal to a Supreme Court that declared in 2018’s Masterpiece Cakeshop decision that religious litigants are entitled to “respectful consideration” of their beliefs.

One hint that this argument might not be true is that it is relegated to two paragraphs in a 37-page brief. One additional hint is that Drummond is a conservative Republican who is running for Governor on a platform that reads “SECURE our borders; DEPORT illegal immigrants; STOP the flow of drugs and crime; PROTECT Oklahoma families” and has been endorsed by the Fraternal Order of Police. This literal Eagle Scout seems unlikely to be someone who is hostile to religion.

OCSB’s quotations are cherry-picked from this letter Drummond sent to the Executive Director of the OCSB in which he urged her to follow the law and, in the last paragraph, warned her about the unintended consequences of approving an explicitly religious charter school:

Further, this office is obliged to point out that the approval of [St. Isidore’s] application will create a slippery slope. While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the application will compel approval of similar applications by all faiths. I doubt most Oklahomans would want their tax dollars to fund a religious school whose tenets are diametrically opposed to their own faith. Unfortunately, the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding. (emphasis added)

OCSB indignantly suggests that this is meant to be a dig at Muslims. It isn’t. I’m pretty sure what Drummond had in mind was the Satanic Temple, which has a long history of activism in Oklahoma. In 2014, the Satanic Temple constructed a seven-foot tall statue of the goat-headed demon Baphomet to display at the Oklahoma State Capitol after the legislature approved the display of a Ten Commandments monument. (The Oklahoma Supreme Court later ruled that the Ten Commandments monument had to come down, so Baphomet was relocated to Arkansas.) The Satanic Temple has also introduced After School Satan Clubs and established the Satanic Temple Academy in Oklahoma public schools as a protest to House Bill 1425, which required school districts adopt a policy allowing public school students to skip up to three class periods per week to “attend a course in religious or moral instruction taught by an independent entity off school property.”

So no, Drummond didn’t call Muslims “reprehensible.” What he did was strongly imply that if the OCSB starts approving religious charters, the Satanic Temple would almost certainly respond by establishing a charter school of its own. And he’s undoubtedly correct that most Oklahomans would consider the goat-headed demon Baphomet “reprehensible and unworthy of public funding.”

This argument should be laughed out of court, except that we’re talking about a court that already has shown a disturbing tendency to rewrite the facts when it comes to religion cases. And while we don’t know for certain what the Supreme Court will do, the warning signs here are ominous.

A grant of certiorari in and of itself does not necessarily mean that the Court intends to reverse. Here, though, the Supreme Court is reviewing a state court decision rather than a lower federal court’s, and thus not addressing a split among the circuits. If they’re interested in this case, it’s probably not because they want to tell the Oklahoma Supreme Court what a terrific job it did on this thorny constitutional issue. And the Court’s right-wing justices have voted as a bloc in every Establishment Clause case since 2018. The tea leaves are not good, although the Baphomet Goat Demons will have an amazing school mascot.