The third in the “unholy trinity” of religion clause cases from the current SCOTUS term. Liz and Rebecca discuss the case that sought to create the nation’s first Catholic public charter school and the surprisingly early decision issued by a divided Court. They explain how this case came to be, what the oral arguments revealed, and the high stakes of the case for our public school system.
Background
Rebecca Markert: Welcome to We Dissent, the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with Americans United for Separation of Church and State, and I’m Liz Cavell with The Freedom From Religion Foundation. Today is the third episode in our three episode arc about the religion cases that are being argued and considered by the Supreme Court. This episode was supposed to be a preview of the case involving the approval of the nation’s first religious public charter school. And yes, I just said all of those words. They all go together to describe what this school is. Today, we were going to break down the case for you and discuss what happened at Oral Argument, but Twist lo and behold, no one could have guessed. The decision came down two weeks after it was argued two weeks. I think that’s the fastest that I’ve ever seen a case on any of our issues and maybe ever outside of the shadow docket getting decided. This case was four four, a pure Curium decision with Justice Barrett recusing herself. And we’ll talk all about what all of that means, but first we want to give you an overview of the case, what happened at Oral argument, and then move on to discussing the ultimate outcome.
Liz Cavell: So this is a little bit of a wrench in what we had planned for this episode, but it’s all good. We don’t have to leave you hanging. We can give you the unsettling but not too tragic ending right here now. So like Rebecca said, the reason we covered St. Isidore last in our three episode arc is because it was argued last and again, less than a month after it was argued on the last day of April. I think we get this sort of surprise announcement of a tie four four decision. So we’ll talk all about how that happened and what it means. But let’s just still give our dear listeners a little background on the case in case you missed it. With all the drama that happens in Supreme Court season, sometimes these cases don’t quite get as understood by the public as they should be because they’re really big cases. So Saint Isidore,
Rebecca Markert: I just wanted to say too, you’re totally right. I said two weeks, it was probably three, but it felt very fast.
Liz Cavell: It felt like a millisecond because we always expect, and usually we’re right, that some of these big religion cases, because they so very often are departing very widely from settled law and they often involve, I guess, culture war issues. Oftentimes they’ll be held till the very last minute by the court and handed down at the very end of June with some of the other more controversial decisions. And so I don’t think any of us were quite ready or expecting, especially in late May because the court, I think just in general, procrastinates handing down all of its decisions for basically to load up the month of June. So definitely left us all kind of scrambling to catch up, but it gives us the chance to cover the whole thing today, soup to nuts. So we’ll start with how this case got started and how we ended up facing a public Catholic charter school in Oklahoma.
Rebecca Markert: That’s right. So I’ll give you a little bit of background on this case and it can get a little complicated because there are actually two legal challenges that were winding their ways through the courts at the same time. And this case ended up before the Supreme Court first. On June 5th, 2023, Oklahoma’s statewide virtual school board voted three to two to approve the nation’s first religious public charter school. That’s right. This school, St. Isidore of Seville Catholic Virtual School is sponsored by the Archdiocese of Oklahoma City and the Diocese of Tulsa In its application to be a virtual charter school, it indicated that the school would be operated as a Catholic school and that the Catholic perspective would permeate all subjects the school planned to teach in addition to the theology classes that they hold. In addition, the school planned to discriminate in student admissions, student discipline and employment on the basis of religion, sexual orientation, gender identity, pregnancy outside of marriage and sexual activity outside of marriage. Cool. It would also discriminate against students based on disability.
Liz Cavell: Lovely. Just what we want for our public schools
Rebecca Markert: In July of 2023, our partners are two organizations, Americans United and the Freedom From Religion Foundation, along with the ACLU and the Education Law Center sued on behalf of the Oklahoma Parent Legislative Advocacy Coalition and nine parents, faith leaders and public school advocates. The lawsuit challenged the state’s approval of St. Isidore as a violation of the state constitution, the state law and state regulations. Our coalition asked the court to prohibit the charter school board from contracting with St. Isidore and from giving any state funds to the school. But despite our challenge, the statewide Virtual Charter School Board approved the contract in October, 2023. Again, by a margin of three to two, the contract omitted the standard provisions that would prohibit a charter school from having a religious curriculum. So our litigation continued and our coalition survived a motion to dismiss at the end of June in 2024. And that allowed our case to go forward. But then the Oklahoma Attorney General filed a similar challenge in the Oklahoma State Supreme Court, Gentner Drummond, who is the Republican State Attorney General, asked the state Supreme Court to invalidate the state’s contract with St. Isidore because it violated state law requiring charter schools to be non-religious. Specifically, the Attorney General’s lawsuit alleged that the contract violated the Oklahoma State Constitution, the Oklahoma Charter Schools Act and the Establishment Clause of the First Amendment to the United States Constitution.
Liz Cavell: So let me just pause to just clarify. So what Rebecca’s saying is after our coalition lawsuit challenging this action by Oklahoma’s Charter School Board, the State’s own Attorney General, so this is state on state action, the state’s own Attorney General sued the state’s Virtual Charter School Board to invalidate what they’re doing on a constitutional basis, but also under state law. There are a lot of laws that are at issue here, just like our coalition challenged the action under the state constitution and other state laws. So this was pretty remarkable when it happened after we had already filed our lawsuit. And so that’s just clarification because it’s confusing and it sort of speaks to how this kind of cruised up the pipeline so quickly after this.
Rebecca Markert: Thank you for that. For those of us who are not dealing with this every day, it can get confusing. So the Attorney General’s case is in the State Supreme Court and the State Supreme Court grants their request. They conclude that St. Isidore would be a public school under the state law, and as such is required under the school charter law to be non-religious. That mandate it added is in line with the Oklahoma Constitution and the Establishment Clause, which both prohibit the state from using public money for the establishment of a religious institution. The court found that the school would be a government entity and would be acting as a surrogate of the state in providing a free public education. St. Isidore and the virtual Charter school Board then petitioned the US Supreme Court for review of this state supreme decision that happened in October of last year. The US Supreme Court obviously agreed to take the case and heard oral arguments in April throughout the Oklahoma State Attorney General’s case, our coalition and our partners were active in submitting amicus briefs on behalf of our plaintiffs both in the state Supreme Court and in the United States Supreme Court. And while this was all happening, the school did not open during this past academic year and was not slated to open for the next academic year 2025 to 2026.
Liz Cavell: So this was just a kind of wild, I think, trajectory with the involvement of the State Attorney General and plus the pending coalition lawsuit alleging basically the same thing. And then of course, the Supreme Court agrees to hear this appeal from the Oklahoma State Supreme Court invalidating this action under state law. So as we probably have previewed on this podcast before, that was a bad sign because it was a great ruling, very much in keeping with the obvious state law and the obvious constitutional prohibitions, and the court agreed to review it. So we get to the oral arguments and we hear basically what amounts to this totally transformative argument from the petitioners in trying to sort of reshape what it means to be a charter school basically. And so we’ll kind of get into that, but should we talk first about the recusal? I was
Rebecca Markert: Just going to say we should talk about two things first for our listeners to explain why is the Supreme Court even reviewing the decision by the State Supreme Court? And then yes, I would love to talk about the recusal.
Liz Cavell: Yeah, so why the Supreme Court’s reviewing a decision from the state Supreme Court is a really good question that Rebecca and I will refuse to ever stop asking and bringing up. Because while it is not unusual or unlawful for the Supreme Court to review cases that come out of the Oklahoma Supreme Court or state Supreme Courts, it’s not typical and it’s especially not supposed to be as routine as this court does it, especially with questions of state law. So the court, in especially the religion clause area, is way to willing to pluck cases out of the state court system and bring them up to the court to say, no, the way you’ve interpreted your own state constitutional Establishment Clause violates the federal free exercise rights of these religious litigants. That is what we feared the Supreme Court was poised to do here because again, the Supreme Court could sort of say, okay, there is this federal implication because St.
Isidore is claiming this sort of federal free exercise. And I do think even unlike our case, Drummond’s case did raise federal Establishment Clause grounds for challenging the public Catholic Charter School. So it’s fine that the Supreme Court would say, okay, this lawsuit raises some federal questions, so we have jurisdiction to take it. But there were some findings of the Oklahoma Supreme Court that were purely questions of state law. So the definition of a charter school under state law is set by state law. The court found made findings that related or that informed its decision, in this case the Oklahoma Supreme Court that were purely questions of state law. And so we heard at oral arguments, some kind of back and forth on this, and I think righteous pushback from attorneys from the AG’s office saying, I’m not even sure this court has jurisdiction to review or overturn some of those state court findings.
Stop asking me about that. And so I appreciate that because it’s important to pause on the fact that with so many of these cases like Carson v Macon, I think Trinity Lutheran Masterpiece Cake Shop, this case, this is the court taking cases out of the state Supreme Court that were being decided under mostly questions of state law and just pulling it up and saying, Nope, nope, nope, nope. We don’t care how you want to run your state constitutional religion clauses. We have religious supremacy in our federal First Amendment. And so you have to be bound by that. And so this was kind of no exception to that in terms of the court’s willingness to review it.
Rebecca Markert: And it just goes back to the themes that we’ve talked about relentlessly on this podcast where this Supreme Court is anxious to take these types of cases. They really want to redefine and reinterpret the law to privilege a certain class of people, namely Christians in our public life.
Liz Cavell: And then the second point before we launch into our oral arguments theater criticism, so we already gave you the spoiler that the decision actually came down in a tie four to four. So for those of you math geniuses like me, that does not equal nine, which means all nine justices did not participate in the hearing and of the case, Justice Barrett recused herself, justices can do this on their own initiative and they don’t have to give an explanation for why. And she did not. The speculation and the scuttlebutt is she obviously worked at Notre Dame Law School for more than 15 years before she became a justice or even a federal judge. And so she also worked at Notre Dame’s Law School Religious Liberty Clinic, which does real world legal work, including as part of the St. Isidore legal team. And it’s public knowledge that Justice Barrett is very close friends with Nicole Stell Garnett, who is a Notre Dame law professor who was an early advisor for St. Isidore in probably cooking up this whole lawsuit in the first place. So Barrett recused herself, which means only ate justices heard oral arguments, only eight justices read the briefing, reviewed the case, and only eight justices participated in the decision.
Rebecca Markert: And when a case is tied like that, the lower court’s ruling stands. So this ended up being a victory because the Oklahoma State Supreme Court said that the religious public charter school is unconstitutional. But I want to go back to just, I’ve been dying to talk about Barrett’s recusal with you, Liz, because I mean, it’s obvious that she had close ties with Notre Dame and the people who are part of the legal team. But the thing that has been taking up a lot of brain space for me is did she do it out of principles or did she do it because she thought that the school was going to be moving forward anyway? Did she think that even without her they had had five votes?
Liz Cavell: Yeah, that’s a great question. I do think in the world where we actually had justices who were bound by ethical rules of professional conduct and judicial ethics, it would be right to recuse herself in this case for purely ethical conflict based reasons. But we don’t live in that world. The justices constantly sit and review cases in which they have massive conflicts of interests, and they don’t recuse themselves. They don’t err on the side of avoiding the appearance of impropriety. They almost never recuse themselves from decisions. And so the fact that she did, so you’re right, it does suggest, well, that plus why maybe she’s just more ethical than the average justice, and maybe it’s just avoiding the appearance of a conflict. A lot of history there. This whole thing I think was cooked up in the Notre Dame law school’s, Religious Liberty Clinic lab to basically challenge completely and remake what a public charter school is. So it is the case that she was very close to this, even if she didn’t work directly on this or in the clinic. So it could have just been that the conflict was actually that bad and she wanted to avoid sullying the decision that maybe she did think would be safe without her anyway.
Rebecca Markert: Oh, yeah. And as Liz mentioned, we’re never going to know because she doesn’t have to give us an explanation. But this four four, Ty and her recusal also needs to highlight the fact that we have four justices who were likely going to vote in favor of the nation’s first religious public charter school, and we can only assume that Justice Barrett was probably also going to vote in favor. So we definitely think that in another case where she doesn’t necessarily have this ethical conflict, we could have had a very, very different outcome and probably will because as we know these Christian nationalists, the opponents that we face every day in our work, they’re not going to stop. So that is to be continued. But I’m jumping ahead. So let’s go back to the oral arguments and talk about what happened there.
Liz Cavell: So oral arguments, and I remember this clear as day because it wasn’t that long ago. It was April 30th. So if you’ve been following along with all three cases we’ve covered this summer, we’ve covered the Mahmoud case about LBGT books being banned from the elementary school, ELA curriculum in Maryland, and then the Catholic Charities case, which involves the Catholic charities trying to get away with not paying unemployment compensation taxes in Wisconsin and then St. Isidore. And so we had those oral arguments kind of all in a row. We covered them in the order that they were argued. So Mahmoud was argued at the end of March. We covered that first Catholic Charities was argued a week before mid-April, and then St. Isidore argued the very last day of April. So not that long ago, we all listened to these oral arguments and sort of poured over the tea leaves, and as usual, it was infuriating and in my opinion, seemed a lot of support to me.
It wasn’t an obvious like, oh, Roberts or whoever is really leaning towards the ags position. So I thought it easily could have broken down five to three based on oral arguments. But in general, I think it’s important to sort of highlight what the flavor of how, because what you hear from moral arguments, a lot of the time you hear the spin you, the narrative that the other party is trying to sell, and sometimes that the conservative justices are trying to sell. You hear their narrative and their spin on the case, not necessarily just like pure Socratic trying to get at the truth of the legal question. So you definitely got the flavor from the lawyers arguing on behalf of St. Isidore that actually a charter school, despite what the clear explicit language of the Oklahoma statute that creates charter schools.
Rebecca Markert: We’re not textualists right
Liz Cavell: Now. No, no. We’re going to hang up our textualist hats for a moment. Charter schools actually are not government entities. They’re not public schools because they’re not state controlled. Totally. And they’re not state created, right. It’s an outside entity that creates charter schools often, and then they apply for a governmental charter. And because the charter school is actually not a government creation or a government actor, the state charter school board doesn’t second guess subject matter details of the individual charter school. So a big part of the narrative spin and Kavanaugh was like riding this train all the way. So this is me pretending to be the petitioner attorney. Now think of it just like other charter schools, like a STEM school or a Mandarin school where the school has a focus, but it has a public charter. So they’re also doing full comprehensive public school education, but they have a special unique focus like Native American culture studies or stem.
This is just like that, but our focus is Catholicism. It’s just like that. And actually how discriminatory, oh, the Mandarin school is fine and the STEM school is fine, but not the Catholic school. It’s just like this willful blindness to the fact that religion is a different beast. That’s the whole point of the charter school system is to do this experimental education and to allow for more flexibility in what these schools can be and what their focus can be and how kids learn in them. And being a Catholic school that discriminates against all the disabled kids and polices people for purity culture, that’s just more experimental education that we should want in our public school system. And also, these aren’t public schools. You don’t go telling the Mandarin school how to do their Mandarin. So this is just like that don’t come tell us how to infuse the entire school program with our Catholicism and factor discriminating against us by not letting us act just like a STEM charter school.
Rebecca Markert: And that has always been another huge theme that we’ve heard throughout these religious liberty cases that have been at the Supreme Court is we cannot in any way discriminate against religion. And that was something that kept coming up from the petitioner and by the justices too, that excluding St. Isidore from the public charter school program would be discriminatory on the basis of religion. And that itself is unconstitutional.
Liz Cavell: This is just like the go-to dance move in this court and of this Christian nationalist movement. It’s like, oh, not only was the Oklahoma Supreme Court wrong, and not only does the public Catholic Charter School not violate anybody’s Establishment Clause nor any provision of state law, but not having a Catholic charter school actually violates our constitutional rights. So it’s the opposite of what you think it is. Every other court and every other case in the history of interpreting the religion clauses and Justice Kavanaugh, like I said, showed mad love for this whole hostility and discrimination line of argument. It’s interesting to me, Rebecca, because that whole line of argument made me wonder. It was almost like having a public school system violates the constitutional rights of religious schools, was the not too far leap from the argument being made and advanced not only by petitioners, but by some justices.
Rebecca Markert: Right, right. I mean, this just goes back to what Sotomayor has said in previous cases that to violate the Establishment Clause is also a violation of the constitutional rights of the religious people in this country.
Liz Cavell: And Justice Sotomayor said it again in oral arguments in this case, which is she basically is questioning the petitioner and then paraphrasing what his argument is. And I’m paraphrasing her here. I don’t have the quote in front of me, but it was something like, so basically there is no Establishment Clause under your argument that you’re advancing because you are saying, and she said this way back in Carson, you’re saying that the Establishment Clause violates the free exercise clause whenever it’s applied to exclude your client from something. And that’s pretty much what was being advanced here.
Rebecca Markert: I just couldn’t get over how obvious it was that we do not live in the same reality. The constant, totally how they went into the Supreme Court and with a straight face argued the religious school that was devised by the Catholic church is not a public school. I agree with that, except that you’re asking them
Liz Cavell: For a public charter. For
Rebecca Markert: A public charter.
Liz Cavell: Keep in mind, this is Oklahoma, and this came up at oral arguments too. So there is no shortage of public dollars to flow to your Catholic school should you want to receive them. And I’m sure every Catholic school in the state receives or is eligible to receive money from the state’s voucher scheme. I’m sure there are other neutral funding programs that can’t exclude religious schools, just like vouchers and scholarship schemes. So it is not like this is the first case broaching to breach that wall of separation. This is literally, we want a public charter. We want a public charter, but we also want to remake the entire charter system so that we don’t have to comply with any of the contractual obligations of a charter school.
Rebecca Markert: Right. Totally. I mean, it was just like, here are all of the facts that show that this is not a government entity, that it is private, but we again want all of the benefits of being a public school, getting all of the money, but then also we don’t want to abide by any of those rules. So we’re going to discriminate. We’re going to do all of the crazy. We don’t want pregnancy outside of marriage, those types of things. It’s just like this is the most frustrating argument that we keep
Liz Cavell: Having and it’s happening. So in Carson v Macon where this was kind of similar in that it’s not vouchers and it’s not traditional generally available funding schemes. It was one where, if you remember in Carson, the state of Maine gives tuition reimbursements to schools that take on kids that live in a region of the state that’s too rural to operate its own secondary school. So you have the choice of either being bused to somewhere way far away to go to the nearest public school, or if you have a private school, even if it’s religious, so long as it’s not purely sectarian. So the schools that sued in Carson versus Macon, they wanted to be eligible to participate in that tuition reimbursement so that students could choose to go to their schools if they lived in a rural setting with no public school, but it wasn’t at issue in that case.
But they’re suing for it now, which is what they want is not just to be treated on equal terms. They want to participate in the tuition reimbursement system, but they don’t want to abide by any of the obligations that all schools participating in that program have to abide by. In other words, non-discrimination in admissions, all the same things that St. Isidore wants to do that they struck out of the charter granting contract. And I really appreciated, and Rebecca, I’m curious, your take on this in the oral argument, this was really hammered by Justice Jackson, KBJ, which was she was kind of responding to both the, is this a state actor and is this discrimination because the religious schools are being excluded from this thing that everyone else is allowed to do? And she was like, first of all, charter schools are a total creature of the state. They don’t come into existence without receiving a state charter. You could set up St Isidore’s Virtual School,
But you can’t get a public charter until you contract with the state to act as a state actor to act as a state creation. And literally, state law explicitly says this, it says something. Maybe it’s not quite this explicit, or maybe it really is something like charter schools are public schools. No, that’s the exact, it literally says that. Yes. And this is not an anomaly. This is not challenging some outlier state law. There are, I think 46 state charter school laws that use the exact same language, charter schools or public schools, including federal law. And interestingly, the solicitor general argued on behalf of St. Isidore, but somehow still defending parts of federal law that conflict with their position very stupidly. But another thing that Justice Jackson was hammering that was really making the point is that the thing that the religious school wants here that they’re saying we’re being denied and discriminated against is something that no one else in the system gets. It’s like you don’t want to participate neutrally in this system. You want to take the contract that every other charter school gets and strike out all these terms. We don’t discriminate. We don’t do this, we don’t do that. We abide by these curricular standards. You don’t want the same thing everyone else gets. It’s not discrimination to be like, you’re discriminating against me. You’re not giving me this totally different thing that nobody else gets.
And I’m sorry, that’s not discrimination or denial of a benefit to a similarly situated school. So you’re just wrong on both of these arguments or just warped.
Rebecca Markert: They were definitely seeking a special status, aside from striking out the provisions that you talked about too. They also don’t want to abide by the fact that charter schools in the state of Oklahoma have to be non-sectarian. They’re not supposed to be religious.
Liz Cavell: Right
Rebecca Markert: They’re like, oh, but we get to be religious.
Liz Cavell: Right? No, obviously, because that’s just like being stem. It’s this idea that secular things are also religion. You know what I mean? At the heart of it, is this good versus evil framing run amok where it’s like, oh, so we have to participate in the religion of LGBTQ acceptance. It’s like, no, bro, that’s not a religion just because calling it a religion, but your thing is actually a religion. And I don’t know what to tell you. There is a separation of religion and government and there’s not a separation of the performing arts and state.
Rebecca Markert: Right. And Justice Jackson in the oral argument had a really good quote, which sums up everything she said, that St. Isidore is being denied a benefit that no one else gets, which is the ability to establish a religious public school.
Liz Cavell: Yes, thank you. A religious public school, not a thing.
Rebecca Markert: Nobody’s
Liz Cavell: Being offered that benefit. It’s like other people are getting to establish a performing arts public school. It’s like, yeah, not the same thing. Just because other charter schools have some sort of secular focus, doesn’t mean the Establishment Clause gets to go away.
Rebecca Markert: And so this brings me to another really great quote from the oral argument from probably my favorite Justice Sotomayor who says, the hallmark of public education is that taxpayers are paying for it, not private donations. The government is doing this, and this is just the entirety of the Establishment Clause and the main principles behind separation of religion and government is because we do not as taxpayers want to support religions. We don’t necessarily agree with this is the hallmark.
Liz Cavell: It’s the whole thing
Rebecca Markert: Of right. This is the hallmark of not only public education, but of our principle of separation between religion and government. And the
Liz Cavell: Thing that also gets at is these schools, again, are public charter schools, which means not only do they not come into existence without a government charter, they are not sustained in any way without taxpayer funding. Unlike a voucher situation. This is different. They’re publicly created and sustained, period. They do not. They cannot exist, survive, or thrive, or come into existence or be operated or funded without the government till or government action. It’s a public school in every way, shape and form, which is why explicitly under state and federal law, they are acknowledged as public schools.
Rebecca Markert: So let’s talk a little bit about Justice Kavanaugh, because his line of questioning was very annoying. Obviously he was pro St. Isidore, and while we do not know, because the opinion was per curiam, which means that it was unsigned. So we have no idea how the votes shook out. We can guess. Again, this is just like a theme of this case. We can guess why Barrett recused herself, and we can guess who fell on which side of the vote here, but it seemed like Justice Kavanaugh is probably on the pro Saint Isidore side, and he of course didn’t see the Pro St. Isidore ruling as favoritism. Of course, he saw it as excluding them and discrimination, but his line of questioning was just so frustrating because he’s stating the obvious, and it just didn’t seem like it was necessary, and it wasn’t even throwing a bone to the attorneys for St. Isidore. Sometimes justices will do that if they’re getting grilled and they’re having a hard time. Justices will sort of chime in to kind of give them an easy question that they can answer. But the questions that he was asking were like, if you have charter schools, you can’t favor religion. Right? Okay. Yeah. But you also can’t disfavor religion. Right?
Liz Cavell: Wrong.
Rebecca Markert: And it was
Liz Cavell: Just stupid, stupid questions. I remember typing to my group chat, we live chat hate, listen to all the Supreme Court oral arguments and my all caps chat message here, was they stupid or are they pretending to be stupid? And then I got 10 gif of why can’t it be both in return? It’s like I’m pretending to be, or am actually so brainwashed by this position that I’m actually willfully making myself stupid in the way that I analyze and think about the legal question here.
Rebecca Markert: And it’s something that he does in every single argument, and it’s so frustrating. It’s always, I’m trying to be the good guy.
Liz Cavell: Totally.
Rebecca Markert: I’m not saying that what you are doing is wrong or what you are doing is wrong.
Liz Cavell: Yeah, no, there are good points on both sides. That’s his vibe.
Rebecca Markert: Yes,
Liz Cavell: Yes. But here it was like, no, that’s not a good point. It’s like saying, well, public schools can’t favor religion, but they can’t disfavor religion. It’s like kind of, but they must be religiously neutral, and that’s what you mean by disfavor religion. So I’m going to say, no, your point is stupid. So stupid and trying to run cover for the idea that somehow by calling a charter school what it is and saying that St. Isidore actually can’t be a public charter school because it’s a government entity that somehow all of the things that have any public support, and he raised Catholic social services and Catholic charities and all these good things that everybody loves. Now all of a sudden they’re going to be government entities too, and then they can’t exercise their religion. It’s like, no, dude, we’re talking about charter schools. We’re not even talking about parochial schools that receive voucher money.
We’re not talking about a private entity receiving some sort of government assistance. We are talking about a public school. It’s like saying, well, next you’re going to tell me that Catholic Charities can’t become our department of HHS. It’s like, yeah, no kidding. You can’t transform a private entity into a government actor. That’s different than saying, oh, because you get government assistance, you are a government entity under the law. It’s like, that’s not what’s happening here, and I feel like you know it, so stop. Right. I’ll just say as a final pin in oral arguments, looking back now, knowing how it turned out, I thought at the time Chief Justice Roberts wasn’t super vocal, but did weigh in a few times in a way that to me, and maybe I’m cynically biased, but to me indicated some sympathy with St. Isidore’s position.
Rebecca Markert: 100%. That was the same. And that’s why I go back to Barrett’s recusal. Did she do it just because she thought that Roberts was going to vote on the side of St. Isidore? I left that argument thinking the exact
Liz Cavell: Same thing. The few times he did weigh in were very sympathetic to St. Isidore, and then maybe once or maybe twice, questioned St. Isidore’s attorney in a way that was slightly challenging, but in no way hard hitting. So I came away from oral arguments thinking there’s a five three majority here for Catholic public schools. But so all the more shocking as we move now to the result, which we obviously already spoiled, which was a four, four tie Thai making this entire thing a giant waste of time because it means that the decision has no effect on the lower court’s decision. So in other words, the Oklahoma Supreme Court’s decision stays in effect. Public schools as we know them, live to die another day in Oklahoma. And like Rebecca said, per curiam, which basically just means it’s a secret. There’s no opinion and there’s no breakdown of who voted which way. So there’s just been people trying to sort of read the tea leaves of who was the defecting conservative justice, and I think it couldn’t have been anyone other than Roberts, but we’ll never know for sure.
Rebecca Markert: We will never know. And if you get anything from this episode, it’s how surprised Rebecca me how surprised I was at how quickly this opinion came down. Because as I was telling Liz before we started recording the show, the day that the opinion came down, I was actually getting my hair done, and I had a bunch of foil in my head when I got the call saying, Isidore is down. And I was like, what are you talking
Liz Cavell: About? It’s May 22nd. We’re supposed to chill until June 1st. You just don’t even have your Supreme Court brain turned on until June 1st.
Rebecca Markert: I totally thought it was a Thursday morning that I could confidently go and do something else, but then I was pulled in and to find out that it was four four felt like a waste of time. We spent a lot of time listening to the oral argument. The oral argument was also very long. It was, yes, because it was a tie. That means that the Oklahoma State Supreme Court ruling is affirmed, meaning the state Supreme Court was correct in interpreting its own state laws.
Liz Cavell: Totally. It was a huge sigh of relief. But also, like Rebecca said earlier, not thrilled that four justices on the Supreme Court endorse the idea that actually a Catholic school has to be given a public school charter, that public schools can be religious. They see no problems with that actually.
Rebecca Markert: And we are a hop skip and a jump away from that becoming reality. That I think is a huge impact that we need to emphasize today. Four justices, we don’t know how Barrett would have voted, but we kind of do. I mean, if she recused herself, because she was, as Liz mentioned, part of this lab orchestrating this case to go forth in Oklahoma. We just have to wait for the next litigation, the next charter school that is applying to be a religious charter school, not necessarily in Oklahoma, but as we mentioned, there’s almost definitely over 45 states in the country that have charter school laws. Not quite 50, but a vast majority of the states have these types of systems. And it really is just a matter of those cases getting filed. They went their way up to the Supreme Court. We know the Supreme Court wants to take it, and this time Barrett doesn’t have to recuse herself. And even if Roberts sides with the liberal justices, it’s still fighting.
Liz Cavell: And that literally was the comment from Oklahoma’s governor Arch conservative, Kevin Stitt was like, don’t worry. This is a non-decision, and there’ll be another case just like this one. And Justice Barrett will break the tie in favor of religious public schools. And so yes, it was like live to die another day, but how close the court is to totally reshaping and undermining the very character of our public schools is really, really scary. And Rebecca, you kind of alluded to this way back when we covered the Mahmoud case, but this case, it’s not that it’s a companion case, but it is just like another case in one broader project, which is to totally destroy public schools. Because the reality is, let’s say this went the way of St. Isidore’s, all of a sudden, every state with a charter school program has to be opened up to religious schools to give charters.
Every religious school in the country could say, oh, well, screw this. We’re not going to operate our own tuition schools. We want a public charter and oh, and you can’t mess with us. We changed all the terms of the contract because we have religious rights. So all that money is just funneled into and just diluted from the public school system. It would just totally eviscerate what are already extremely strapped public school budgets and states. And so that’s the whole point, is to completely undermine public education to the point where it’s, and it’s essentially privatized in this way. And Mahmoud is part of that because it’s coming at it from the curricular side. Like, oh, we can undermine every single curricular choice by doing this grafting, this insane free exercise right onto the most conservative parents to undermine curriculum. And then we’ll come at it from the funding side too, because we will just totally orchestrate this absurd constitutional reality.
My air quotes are going where states can’t constitutionally refuse to privatize their public schools by granting charters to any religious school that comes a colon. So other justices, I think Jackson alluded to this, or Kagan, there’s just going to be a line out the door for public school charters from private sectarian schools that don’t provide the Yeshiva Hebrew school and oh no, the Madrassa, the Muslim school. And in fact, Drummond actually tweeted after the fact, and this is the ag who fought this case at the Supreme Court on the side of Establishment Clause principles. His whole public narrative is I saved us from Muslim Sharia law schools being able to run amuck in our good Christian country. So he’s no friend of true religious liberty, but the reality is he’s not wrong. I mean, in the sense of it will just be absolute chaos to the point where the whole system is essentially privatized because governments are not allowed to exclude any private actors, religious, private actors. And I
Rebecca Markert: Just pulled his tweet, tweet of, it’s horrible. It’s horrible. I pulled it up because it is terrible. And like Liz mentioned, he was on the right side of this. He was making the arguments that we would agree with. So seeing his tweet after the decision came down, upholding our constitution, was just so disheartening. And quite frankly, disgusting, gross. He wrote the day of the decision, the Supreme Court has ruled in favor of my position that we should not allow taxpayer funding of radical Islamic schools here in Oklahoma. I’m proud to have fought against this potential cancer in our state, and I will continue upholding the law, protecting our Christian values and defending religious liberty.
Liz Cavell: That was the best ally. Oklahoma had to stand up for state church separation in the state. So cool.
Rebecca Markert: I mean, we do have a lot of parents and public school advocates in Oklahoma coming out of the woodwork to help defend true religious liberty. But this was just disgusting. I got rid of Islamic schools. That was not even before the court at all. So that was really frustrating. But I mean, I don’t want to completely end our episode on a sour note like that. Obviously, the work is not done. We do anticipate that another case on this issue will be forthcoming, but for now, this is a solid victory for religious liberty. I mean,
Liz Cavell: It’s true, because the reality is the decision below from the Oklahoma Supreme Court was an extremely solid reading and reflection of a strong Establishment Clause under state law in Oklahoma. It was absolutely a great decision for religious liberty and secularism, and it stands, so that’s not nothing.
Rebecca Markert: And in the end, this school is not going to be opening in the state of Oklahoma. That’s important. That’s very important. And so for Oklahomans, your public funds are safe. They’re not going to be used for religious education and indoctrination,
Liz Cavell: At least not in the charter school system.
Rebecca Markert: You’ve got vouchers, and I don’t know what to tell you about that.
Liz Cavell: True, true.
But for the public school charter system, they’re safe. And the reality is, most taxpayers, we’ve covered this in our election coverage, and at other times, most Americans do not want even voucher systems taking money away from their public schools. They damn sure don’t want public charters going to religious and sectarian schools that discriminate, that are not open to all comers, that discriminate against disabled kids. Nobody wants this except for the small special interest of uber conservative Christian nationalists that are trying to totally undermine and privatize public education. So it’s a victory for the rest of us for now.
Rebecca Markert: So I said this is the third episode in our three episode arc covering the religious liberty cases at the Supreme Court. It’s a slight misspeak because we are obviously going to have an episode that covers the decisions from the other two cases, Mahmoud v. Taylor, and the Catholic Charities case. And that will be in our next episode, probably assuming that those decisions also come out. The Catholic Charities case actually also already surprisingly,
Liz Cavell: Came down early. It’s worthy of its own full discussion, and we didn’t want to take away from covering St. Isidore. So watch this space for our next episode, and we’ll cover the rest of the Supreme Court decisions that have come out by then.
Rebecca Markert: So as of the date of this taping Catholic Charities has come out, we are going to discuss that in the next episode. And we hope and think that Mahmoud versus Taylor will also be out, and then maybe us versus Clemetti too, which we previewed what feels like eons
Liz Cavell: Ago. Yeah, back in the end of 2024. That case was argued, and we’re still waiting on that decision. So that involves gender affirming care. Bans can’t wait to hear what the Supreme Court thinks about that.
Rebecca Markert: Yeah, I mean I can.
Liz Cavell: So that is it for today’s episode. I’m Rebecca Markert. And I’m Liz Cavell. If you haven’t already, please follow us on our socials. We’re on Facebook, we’re on Instagram, blue sky, and X. Please also, if you like the show, remember to leave us a review. You can find us at we-dissent.org. Thanks for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion, Foundation, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio Engineering provided by Audio for the Arts, based in Madison, Wisconsin. Special thanks to FFRF Summer intern Zoe Gunderson for her assistance in producing this episode. Thanks for listening.
