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The Supreme Court’s conservative justices signaled Wednesday they are open
to allowing the Catholic Church to launch the country’s first publicly
funded religious charter school, despite arguments from opponents who say
the school would violate the Constitution’s ban on government-established religion.

The justices heard arguments on an Oklahoma court decision last year that rejected a state contract to open the planned online-only charter school,
known as St. Isidore of Seville Catholic Virtual School. If the justices overturn that decision, they would allow, for the first time, a charter
school receiving state funds to teach an explicitly religious curriculum.

The school’s supporters say a ruling in favor of St. Isidore would clear
the way for a new form of public education that would advance religious
freedom and school choice.

But as the justices discussed how the case intertwined with religious
liberty during more than two hours of oral arguments, they also signaled interest in whether a religious public charter school would be a
government entity or private actor — and how a potential ruling in St. Isidore’s favor could affect charter school programs across the country.

“I can imagine some states might respond to a decision in your favor by imposing more requirements on charter schools,” Justice Neil Gorsuch said
to Jim Campbell, an attorney for the Alliance Defending Freedom, a
conservative organization representing an Oklahoma charter school board
that first approved St. Isidore’s state contract. “Have you thought about
that boomerang effect for charter schools?”

Justices also raised questions about the scope of three Supreme Court
cases over the past decade that addressed when public money can flow to religious groups. The school’s advocates have said those three cases
suggest that states cannot block churches from using taxpayer dollars to
create public schools that teach religion in the same way that many
religious private schools have long done.

But those cases, Chief Justice John Roberts said, involved “fairly
discrete state involvement” such as paying for playground infrastructure, tuition and tax credits. “This does strike me as a much more comprehensive involvement, and I wonder, what case do you think supports the position
with respect to that level of involvement?”

Only eight of the court’s nine justices will decide the case. Justice Amy
Coney Barrett has recused herself from the case. She is friends with a
Notre Dame professor who advised St. Isidore. Barrett’s recusal means the
case will be decided by five conservative justices and three liberals,
rather than the usual 6-3 conservative-liberal breakdown.

If all the liberals oppose allowing the religious school, any one
conservative could cause a tie, which would leave in place the Oklahoma
Supreme Court’s decision barring the school.

However, none of the conservatives seemed inclined Wednesday to break
ranks. Justices Samuel Alito and Brett Kavanaugh were particularly
animated in their defense of the proposed Catholic-run school. They
repeatedly suggested that Oklahoma’s rejection of the school amounted to discrimination against religion, or even hostility toward it.

“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 Attorney General Gentner Drummond, who opposes St. Isidore’s bid.

“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.’”

Toward the end of the two-hour-long arguments, Alito mounted a broadside against the state, pointing to comments by Drummond that excluding
religious schools from the charter system was wise because it would avoid having taxpayers subsidize Catholic or Muslim teachings, or even Satanism.

“Why would we spend one penny of our tax dollars educating them on
Catholicism, Sharia law or any other religious teaching?” Drummond said in 2023. “I would prefer we focus on reading proficiency so they can read the Bible at home with their family.”

“This whole position that you’re defending seems to be motivated by
hostility toward particular religions,” Alito said to Garre, as the
Oklahoma attorney general looked on from the gallery. “We have statement
after statement by the attorney general that reeks of hostility towards
Islam.

Roberts also pressed Garre to answer how Drummond’s arguments square with
a 2020 court decision that struck down Philadelphia’s refusal to work with
a Catholic foster care agency that declined to work with same-sex couples
as an unconstitutional violation of religious freedom.

“You have a state agency that refused to deal with the religious adoption services, and we held they couldn’t engage in that discrimination. How is
that different from what we have here?” Roberts said. “I have an education program, and you want to not allow them to participate with a religious entity.”

The Trump administration is backing the proposed religious school, with Solicitor General Dean Sauer even going so far as to refuse to defend the constitutionality of a federal law that defines charter schools as “nonsectarian.”

All three liberal justices expressed significant reservations about
allowing religious instruction at charter schools.

Justice Sonia Sotomayor said such schools are creations of the state and
must follow highly-detailed state laws.

“Here, the government is the actual creator of the charter school because
the charter school does not exist without government funding,” she said.
“So if it’s not a government actor, it is still creating a religious institution.”

While the proposed Catholic school has said it will abide by state’s
curriculum requirements aside from the one mandating a nonsectarian
program, Justice Elena Kagan said opening the door to religious schools
will lead to other applicants that will ask for exceptions to the state standards. She mentioned Jewish Yeshivas that teach primarily in Yiddish
and ancient Hebrew, while providing little instruction in areas like
English, math or science.

“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 that they think is important for their young people and is
critically important to their faith,” Kagan said, adding later that the prospect of government money will attract all sorts of religious groups.

“I think there are going to be — there’s a line out the door if you can do
this consistent with your religious belief,” she said.

Garre focused on his argument that charter schools have always been
considered public. He noted that federal law defines charter schools as
public. And he tried to play to the court’s conservatives by suggesting a ruling for the proposed Catholic school would be an attack on federalism, because Oklahoma’s top court determined that state’s charter schools are
public schools.

Garre also suggested the high court would be opening a Pandora’s Box by declaring the sectarian school to be part of that public system,
potentially upending government funding streams, accommodations for
disabled students, anti-discrimination policies and more.

“It would be sort of remarkable for this court to say everyone else was
wrong on that,” Garre said. “This is going to create uncertainty,
confusion and disruption for potentially millions of schoolchildren and families across the country.”

https://www.politico.com/news/2025/04/30/supreme-court-favors-first- religious-charter-school-00318087

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