A majority of the Supreme Court signaled Wednesday that they will allow the creation of the nation’s first overtly religious charter school. Dividing along the usual lines, Justices Alito, Gorsuch, Kavanaugh, and Thomas were in favor. Chief Justice Roberts didn’t commit himself, but he’s been in the majority on every religious freedom case heard by the Supreme Court. Justice Barrett recused herself because a group she was affiliated with at Notre Dame was part of the charter school legal team.
At issue was the application of the Archdiocese of Oklahoma City to create the St. Isidore of Seville online charter school. Like all parochial schools, the school would serve students of all faiths but be built on Catholic principles and involve religious education.
This set up an interesting conflict where the governor, a Republican, and the Republican state superintendent of public instruction supported the applications, but the Republican attorney general brought the case that the Supreme Court heard Wednesday. He sued in 2023 to block the charter because it would violate state law and the US Constitution. In June 2024, the Oklahoma Supreme Court agreed with Attorney General Gentner Drummond that St. Isidore’s Catholic character, despite being open to everyone and required attendance of no one, would violate the Constitution’s establishment clause.
The crux of the questioning centered on religious neutrality versus hostility to religion. Justice Kavanaugh hit this theme hard. “You can’t treat religious people, and religious institutions, and religious speech as second-class in the United States,” Kavanaugh said to Gregory Garre, a former Bush administration solicitor general who represented Oklahoma’s Attorney General Gentner Drummond. (As an aside, it is interesting to note how many prominent “conservatives” are lining up to oppose what I consider to be conservative positions once those positions have the high likelihood of becoming law. Funny, that.) “And when you have a program that’s open to all comers except religion…that seems like rank discrimination against religion,” Kavanaugh added. “They’re not asking for special treatment, they’re not asking for favoritism. They’re just saying, ‘Don’t treat us worse because we’re religious.’”
🚨New: Justice Brett Kavanaugh says that excluding the St. Isidore Catholic School charter school from Oklahoma’s state program seems like rank discrimination against religion pic.twitter.com/Cb3QciankQ
— The Calvin Coolidge Project (@TheCalvinCooli1) April 30, 2025
When Oklahoma’s lawyer complained “that approving St. Isidore’s application would mean that the board would also have to approve a religious charter school operated by a minority religion.” This, of course, refers to the case of the Colorado baker who won his case at the Supreme Court because he proved the state’s decision to punish him for refusing to bake a gay wedding cake was rooted in animus toward religion; see A Quick Thought About the Supreme Court’s Masterpiece Cakeshop Decision – RedState. Justice Alito said the opposition has such a reek of anti-religious fervor that he thought Oklahoma had a “very serious Masterpiece Cakeshop problem,” that “reeks of hostility to” Islam.
The main tactic by the leftists on the Court was to portray the charter school as a state institution, despite it competing through a grant process for the charter and being directed by a board that was neither state employees nor compensated by the state. “The charter schools in this case, she said, ‘look like regular public schools’ and are subject to the same kinds of requirements as traditional public schools – for example, they are free, they are open to everyone, they have to comply with proficiency standards, and the state can shut them down. ‘These are state-run institutions,’ Kagan concluded.” Indeed, except no one is required to attend an online Catholic charter school.
If the Court rules the way it appears headed, it will shake up the charter school programs everywhere. First off, it will mean the thirty-eight Blaine Amendment states can no longer use that to block religious schools from applying for charter school status. The attorney for Oklahoma painted a picture of this, opening the door for the state to make personnel and curriculum decisions. “And if religious schools can qualify as public charter schools, it will raise questions about who can be admitted to such schools, whom the schools can hire as teachers, and what the curricula at those schools will be.”
In reality, Oklahoma’s lawyer is out of his tree. The Supreme Court has already ruled that the government has to stay out of the hiring and firing decisions of people filling “ministerial” functions in religious organizations (Supreme Court Tells Ninth Circuit to Stay Out of Personnel Decisions of Religious Organizations – RedState). And there is no controversy over admission (anyone who wishes to participate may), and St. Isidore agreed to follow the state educational standards when it applied for the charter.
Some online comments have warned that this opens the door to “Satanist” schools or Alphabet-people schools. News flash, we already have those. The real fear by the establishment, Democrat and Republican, is that religious charter schools will proliferate (they will) and that many parents will opt for them because they can be sure their kids will not be introduced to gay porn or secretly “transitioned” without their knowledge or consent. The same people invariably raise the question of Islamic madrassas as though I give a rip about how someone else educates their child. As the charter lays out specific testing and achievement goals, the fear of Middle East-style schools is simply a straw man argument designed to appeal to the worst sort of bigotry.
We should have a definitive answer on the issue sometime this summer. The only real question is whether the Court will follow the direction of Alito, Gorsuch, and Kavanaugh and issue a full-throated defense of religion as a critical component of American history and society, or will it just nibble around the edges, causing decades of future controversy.
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