Legal Docket: Church-state boundaries

MARY REICHARD, HOST: It’s The World and Everything in It for this 12th day of May, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

A Roman Catholic charter school approved by the state of Oklahoma—then blocked by the state’s own Supreme Court—has sparked one of the most important U.S. Supreme Court cases this term on religious liberty and public education.

REICHARD: Here’s the core question: If a state pays for secular charter schools, does it have to pay for religious ones too? Or does the Constitution forbid that?

The line is between the free exercise clause of the First Amendment and its establishment clause …

The two clauses are right here: “... Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

The case is Oklahoma Statewide Charter School Board v Drummond, and it sets up a direct constitutional clash.

EICHER: To understand why this case could change the face of public education across the U.S., let’s begin by understanding charter schools. They started about 30 years ago as a taxpayer-funded alternative to regular public schools. The aim was flexibility and innovation, and the movement grew fast. Today, about four million students now attend a charter school.

REICHARD: Laws on charter schools in 45 states, including Oklahoma, say essentially the same thing: that charter schools must be nonsectarian. That’s a nod to the establishment clause, states trying to ensure that public education is neutral on religion.

EICHER: But what some see as neutrality, others see as hostility.

This dispute arose when Oklahoma’s charter school board voted 3-to-2 for the creation of a virtual school named for the patron saint of the internet, St. Isidore of Seville. The school’s purpose was to bring Catholic education to underserved, rural areas.

At the Supreme Court, the school board’s lawyer was Jim Campbell of Alliance Defending Freedom. He set it up this way:

CAMPBELL: Under this Court's tests, St. Isidore is neither the government nor engaged in state action. There are already hundreds of families that have signed up for St. Isidore. They're part of Oklahoma's community too. They should not be treated as second-class.

REICHARD: But for Oklahoma’s attorney general Republican Gentner Drummond the Catholic involvement was precisely the sticking point. He sued and won on the prevailing theory that public education means secular education. The state Supreme Court went along as well.

So both the school board and the school appealed to the U.S. Supreme Court.

EICHER: Campbell for the school board argued the constitution does not require secularism , and efforts to require it are discriminatory.

CAMPBELL: But state law categorically bars religious groups and programs, deeming religion to be the wrong kind of diversity. That religious exclusion violates the Free Exercise Clause.

Turns out, recent Supreme Court rulings back that up. In the cases of Trinity Lutheran, Espinoza, and Carson, the high court ruled that states cannot shut out religious groups from public benefits merely because they are religious.

REICHARD: Lawyer Gregory Garre argued on behalf of Attorney General Drummond:

GARRE: Petitioners are not seeking access to Oklahoma's program on equals terms. They seek a special status: the right to establish a religious charter school plus an exemption from the nondiscrimination requirements that apply to every other charter school….

Conservative justices jumped on that. Here’s Justice Brett Kavanaugh:

KAVANAUGH: All the religious school is saying is, don’t exclude us on account of our religion. I mean, if you go and apply for --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. And our cases have made very clear…you can't treat religious people and religious institutions and religious speech as second-class in the United States.

Justice Samuel Alito read aloud from the attorney general’s own statements:

ALITO: 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." And this is not an isolated statement. There are many.

GARRE: So thank you for asking that, Your Honor --

ALITO: Isn't that a very serious Masterpiece Cakeshop problem? This whole position that you're defending seems to be motivated by hostility toward particular religions.

GARRE: That's in --that's entirely incorrect, Your Honor

EICHER: Justice Alito pressed the issue by pointing to Oklahoma’s constitutional ban on state money for religious schools. This was modeled after the Blaine Amendment. a failed 19th-Century measure fueled by anti-Catholic bias.

It didn’t pass at the federal level, but several states adopted junior Blaine Amendments. Listen to this exchange between Justice Alito and lawyer Garre:

ALITO: Well, I think you're rewriting history. Do you think that anti-Catholic bigotry had disappeared from Oklahoma by 1907?

GARRE: I think, Your Honor, of course, there were those who held that distasteful and odious bigotry, but the laws that the Oklahoma constitution provision is based on long predated that…

Last summer, Attorney General Drummond put it plainly: If the state funds a Catholic charter school, what principle stops funding for Islamic schools teaching Sharia law—or devil worshipers propounding Satanism? That, he said, is exactly why the safest route is to keep religion out of public schools altogether.

REICHARD: But Justice Alito wasn’t finished with Garre.

ALITO: Could a school say we're going to be a LGBTQ-plus friendly school so that the books that elementary schoolchildren are going to read are going to have lots of LGBTQ-plus characters, same-sex couples, and they are going to send the message that this is a perfectly legitimate lifestyle? They're going to tell the little kids, if you --your parents may say you're a boy or a girl, but that doesn't mean you really are a boy or a girl. Could they do that?

Garre said no, because Oklahoma law forbids teaching gender studies or race theory in public or charter schools.

ALITO: I’ll give you another example. Could a school say we’re a progressive school and we’re going to do everything the state wants you to do, but we're going to teach history from the 1619 Project standpoint.

GARRE: No, because they'd have to meet the state's academic standards, and that would not be allowed…

Justice Alito kept at it:

ALITO: I don't want this to be one-sided. So suppose a school says we're going to teach American history like the way it was taught in 1955, so we're going to celebrate the founding fathers and we're not going to say anything about their shortcomings and -we're not going to say a whole lot about the --the dark episodes in American history. Could they do that?

GARRE: No. Traditional Oklahoma public schools could not do that and charter schools cannot do that because --

ALITO: Where does it say that?

EICHER: Meanwhile, the liberal justices had their own concerns. Justice Sonia Sotomayor to lawyer Campbell for the school board:

SOTOMAYOR: Really, what you're saying is the Free Exercise Clause trumps the essence of the Establishment Clause because the essence of the Establishment Clause was we're not going to pay religious leaders to teach their religion….And, here…You can only be a teacher in this school if you're willing to accept the teachings of the Catholic Church.

Justice Elena Kagan anticipated religious favoritism, intentional or not. Listen to this exchange with lawyer for the DOJ, John Sauer, in support of St. Isidore:

KAGAN: There's a big incentive to operating charter schools since everything is funded for you, I mean, so I think that there are going to be --there's a line out the door if you --you can do this consistent with your religious belief. All I'm suggesting to you is this notion that the state can do this while still maintaining all its various curricular requirements, I mean, either that's sort of fantasy land given the state of religious belief and religious practice in this world, or, if it's not, it's only because what's --what's going to result is treating, shall we call them, majoritarian religions very differently from minority religions.

SAUER: First, I’d say is that if there is in fact a line out the door so to speak that line out the door will increase the diversity of options for parents and students in states that have programs that are similar to Oklahoma.

REICHARD: Arguing for the school itself was Michael McGinley. He reiterated the core point for his side:

MCGINLEY: St. Isidore is a private religious nonprofit. It was created by private actors and it is create --and it is controlled by a private board that consists of entirely private actors. It thus lacks the essential elements of a government entity.

Chief Justice John Roberts authored all of those more recent major rulings that expanded religious access to public benefits. He was mostly quiet during this oral argument, though. Still, he seemed to be weighing whether St. Isidore crosses a line that the earlier cases did not:

ROBERTS: This does strike me as a much more comprehensive involvement.

EICHER: Justice Amy Coney Barrett recused herself from this case, possibly because of her friendship with an advisor to St. Isidore. That means the court could split 4 to 4. If it does, then the Oklahoma Supreme Court ruling stands, and St. Isidore is on its own.

REICHARD:In an op-ed for the newspaper The Oklahoman, Attorney General Drummond wrote that he backs religious schools— his kids attended one— he says tax dollars shouldn’t fund religious schools. Let families use tax credits instead.

A decision in this case could rewrite the rules for what counts as “public” in public education. We’ll find out by the end of June.

EICHER: One more note- On Thursday, retired U.S. Supreme Court Associate Justice David Souter died at the age of 85. Appointed by President George H.W. Bush in 1990, Justice Souter was on the bench less than 20 years before retiring in 2009. He’d been expected to be a conservative. Instead, he became known for siding with liberals and strengthening abortion rights.

REICHARD: Justice Souter co-authored the case often cited in tandem with Roe v Wade to find a right to abortion in the US Constitution.

Here’s Justice Souter announcing his part of the opinion in Planned Parenthood v Casey, just two years into his term, June 29th, 1992:

SOUTER: So to overrule in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question…. The promise of constancy once given binds the Court for as long as the power to standby the decision survives and the understanding of the issue has not changed so fundamentally as to render that commitment obsolete….A willing breach of it would be nothing less than a breach of faith and no Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that.

EICHER: That 5-4 opinion led with the famous line of “liberty finds no refuge in a jurisprudence of doubt.”

Yet doubt remained in the years following until Roe and Casey were both overturned with the Dobbs decision in 2022.

REICHARD: And that’s this week’s Legal Docket.

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