[[link removed]]

SCOTUS THINKS CHURCH-STATE SEPARATION IS ANTI-RELIGIOUS BIGOTRY  
[[link removed]]


 

Mark Joseph Stern
April 30, 2025
Slate
[[link removed]]


*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

_ The Supreme Court is poised to open the floodgates to mandatory
taxpayer support for religious education across the country, striking
down restrictions on religious charter schools. The right-wing
justices seem unconcerned about the consequences. _

Supreme Court Justice Brett Kavanaugh during his confirmation
hearing, photo: screen grab

 

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
[[link removed]] seeking
to expand state funding of religious education. They worked with the
diocese to create St. Isidore
[[link removed]]—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
[[link removed]];
the state’s constitution, he pointed out, forbids the expenditure
[[link removed]] 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
[[link removed]] 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
[[link removed]] with
an attorney advising St. Isidore. The court took up the case
nonetheless, reflecting a clear desire
[[link removed]] 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
[[link removed]] 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
[[link removed]] to
extend
[[link removed]] 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
[[link removed]],
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
[[link removed]],
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
[[link removed]],
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
[[link removed]] 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
[[link removed]] 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
[[link removed]] 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
[[link removed]] at
all.

There is a reason
[[link removed]] why
the nation’s major charter school organizations have lined up
[[link removed]] to
oppose
[[link removed]] St.
Isidore’s demands
[[link removed]].
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
[[link removed]] over
the rights of everyone else, the vision of the Founders be damned.

_MARK JOSEPH STERN [[link removed]] is a
Slate senior writer._

_Slate [[link removed]] is an online magazine of news, politics,
technology, and culture. It combines humor and insight in thoughtful
analyses of current events and political news. Choose the newsletters
you want [[link removed]] to get the Slatest._

* The First Amendment
[[link removed]]
* Separation of Church and State
[[link removed]]
* Public Education
[[link removed]]
* Religion and Politics
[[link removed]]

*
[[link removed]]
*
[[link removed]]
*
*
[[link removed]]

 

 

 

INTERPRET THE WORLD AND CHANGE IT

 

 

Submit via web
[[link removed]]

Submit via email
Frequently asked questions
[[link removed]]
Manage subscription
[[link removed]]
Visit xxxxxx.org
[[link removed]]

Twitter [[link removed]]

Facebook [[link removed]]

 




[link removed]

To unsubscribe, click the following link:
[link removed]