Close Call on Religious Charter School Decision

Let's take the wins where we can!

There’s relief today, combined with outrage that it came this close. In a 4-4 tie, the Supreme Court allowed the Oklahoma Supreme Court decision barring the establishment of a taxpayer-funded religious charter school, a joint effort by the Catholic Archdiocese of Oklahoma City and Diocese of Tulsa. The case, St. Isidore of Seville Catholic Virtual School v. Drummond, had been bouncing around the Oklahoma courts for several years, with the Oklahoma Statewide Virtual Charter School Board voting to approve an application for the school over the objections of the state’s attorney general. Oklahoma state law specifically prohibits sectarian charter schools. Even Oklahoma’s top court understood that using taxpayer money to fund a religious public school is a flat-out violation of the Establishment Clause and amounts to terrible policy and precedent. Had this proposal been for a state-funded kuttab or Dhamma School, it simply never would have come to court at all. And yet, four unnamed Supreme Court justices were willing to distort the First Amendment to satisfy their Christian nationalist supporters.

Amy Coney Barrett deserves some credit for recusing herself, quite possibly because she is a close friend and former work colleague of a lawyer who played a role in advising the school and has also worked with Notre Dame Law School’s Religious Liberty Clinic, which is part of St. Isidore’s legal team. Had Coney Barrett not recused herself, we might well be looking at the further establishment of religion in Oklahoma and, soon, around the country. That the case got this far is evidence of the perversity of the “religious liberty” doctrine that now holds sway among the extremists on the Supreme Court.

When I wrote about this case for MSNBC in 2023, I noted that a win for St. Isodore would have cleared the way “for a future in which large amounts of money flow from local, state and federal treasuries into religious networks with clear political agendas and significant influence over public education.“

https://www.msnbc.com/opinion/msnbc-opinion/oklahoma-catholic-charter-school-supreme-court-rcna87843

Members of the right-wing legal movement have convinced themselves that not sending your taxpayer money to conservative Christian groups would amount to a violation of their free speech rights. By that logic we may as well all bow down and submit to the national church.

But taxpayer funding for religious schools is a longstanding aim of the Christian nationalist movement. In 1979 Jerry Falwell made the agenda clear when he said he hoped to see the day when there wouldn’t be “any public schools—the churches will have taken them over and Christians will be running them.”

The strategy as it relates to public education was laid out decades ago by some of the movement’s leading legal masterminds.

It includes a number of parts and involves multiple key cases. There isn’t space here to review them all, but one important part of the argument centers on the reversal of discrimination, the anti-gay cake bakers et cetera. The logic there is that not allowing conservative Christian employers and service providers to discriminate against gay people and others they don’t like amounts to discrimination against them for their religious viewpoint.

Another key part of the argument is more legalistic, but important to grasp for its far-reaching consequences.

Starting in the 1980s, Jay Sekulow, a lawyer and founder of the right-wing legal organization the American Center for Law & Justice, along with others on the extreme wing of the religious right began to take a curious line of argument in Establishment Clause cases. In most such cases, there is a distinction between the First Amendment right to the free exercise of religion—such as a public school teacher’s right to pray—and the First Amendment prohibition on the establishment of religion—such as an attempt, by that public school teacher, to lead students in prayer during class. Rather than invoke the Free Exercise Clause of the First Amendment, however, Sekulow and his allies suddenly began to appeal to the Free Speech Clause of the First Amendment. In an argument that formed the tip of the legal spear aiming at the Establishment Clause, they asserted that religion is just speech from a certain, religious point of view. And to prohibit speech of any type on the basis of viewpoint is, by definition, to violate the Free Speech Clause.

One could spill a lot of ink explaining why it is absurd to suppose that religion is not religion after all, but just speech from a religious point of view. But fine arguments are not necessary in this case because the Constitution itself supposes that religion is a category of activity distinct from speech. Why else would the First Amendment take the trouble to guarantee the freedom of religion and then turn around and add a separate and distinct guarantee of the freedom of speech? Indeed, the obvious fact that religion is a distinct activity is essential to make sense of the Establishment Clause, the very first clause of our First Amendment. Congress is proscribed from the “establishment of religion”—a concept easily grasped—but it isn’t proscribed from the “establishment of speech,” because the latter is nonsensical. What, after all, is the justification for religions’ substantial and unique tax benefits if religion is nothing more than a form of speech like any other?

Supreme Court justice Byron White spotted the incoherent nature of this argument in the 1981 case Widmar v. Vincent, in which the Court decided that excluding a religious group from meeting on state university campus facilities amounted to a violation of its free speech rights. The opinion of the majority, White argued in his dissent, “is founded on the proposition that because religious worship uses speech, it is protected by the Free Speech Clause of the First Amendment.” White concluded, “I believe this proposition is plainly wrong . . . Were it right, the Religion Clauses would be emptied of any independent meaning in circumstances in which religious practice took the form of speech.”

Yet subsequent legal advocates of the religious right seized on the opening created by the Widmar decision and generated other cases that followed a similar tack. “Our purpose must be to spread the gospel on the new mission field that the Lord has opened—public high schools,” Sekulow told the supporters of the newly formed American Center for Law and Justice in 1990. “Yes, the so-called ‘wall of separation’ between church and state has begun to crumble.”

Rendering the Establishment Clause unintelligible is a feature of this line of argument, not a bug. The Christian nationalist activists in the courts knew then that if they could recharacterize efforts to invest religion with the authority of government merely as the exercise of free speech rights, then the Establishment Clause would largely go away. Frankly, in many respects we are already heading down that path—but let’s take the wins where we find them.

Thank you for reading! Please be sure to follow me on Bluesky https://bsky.app/profile/katherinestewart.bsky.social

or check out my latest book

https://www.amazon.com/Money-Lies-God-Movement-Democracy/dp/B0DV5R1CWK.

And feel free to share your thoughts, reactions et cetera.