An Attorney General’s Perspective on the Oklahoma Supreme Court’s First Amendment and the Founding of the Free Exercise of the Faith: A Critique of the Oklahoma Constitution, the Supreme Court, and the First Amendment
Conservative Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas asked similar questions, also contending that to leave a religious school out of the charter school program amounts to discrimination against religious adherents and their constitutional right to the free exercise of religion.
The 1994 federal law that created the charter school program requires the schools to not be sectarian, according to Justice Jackson. So, she asked, is the federal law unconstitutional? McGinley essentially said that it is.
The Oklahoma Supreme Court said it would put the school at odds with Supreme Court decisions that prevent religious prayer and instruction in public education.
The state asserts that the First Amendment bars any state establishment of religion, and there is no doubt that St. Isidore would embody the Catholic faith. The school would, in its own words, serve as a “genuine instrument of the church” and “participate in the evangelizing missions of the church,” including teaching the faith to students, requiring them to attend mass, and to “adhere to the belief” that “Christ is present in the holy Eucharist.”
Opposing St. Isidore is the Republican Attorney General of Oklahoma, Gentner Drummond, who argues: “Religious liberty is really the freedom to worship. It is not funded by the government.
The drafters of the federal and state constitutions knew how to prevent the state from sponsoring any religion, he says.
The Catholic Church might get millions of dollars in public funding for their religious mission if they wear the garb of charter schools. If the Catholic church is able to teach charter students in Catholic doctrine, he says, “substitute satanic beliefs, Wiccan, Muslim, Sharia, Jewish.”
Why aren’t Catholic Schools Open to Students? Justice Coney Barrett questioned Wednesday about a charter school system that includes religious schools — an example of a lawyer representing the Archdiocese of Oklahoma
Justice Amy Coney Barrett recused herself from participating in Wednesday’s case, presumably because when she was a law professor she was involved with a clinic at Notre Dame that advised St. Isidore. The court could be deadlocked, though odds of that happening seemed remote on Wednesday.
She is friends with the law professor and also her husband, both of whom are faculty at Notre Dame’s Religious Liberty Clinic.
There is a chance that the court will vote in a tie because justices have absence from the bench. That would ensure that the Oklahoma Supreme Court decision would be upheld, and the proponents of religious charter schools would have to look for another case.
At one point Justice said that all the religious schools are saying “Don’t exclude us on account of our religion.” It seems like rank discrimination against religion when a program is open only to comers.
What, he asked, would teachers be able to teach if religious schools were added to public charter schools? How would the nation’s disability rights laws apply to children? Would the curriculum be changed if the teaching of evolution wasn’t allowed? Can you have a gay teacher or not? He said the questions could tie up school districts in litigation for a long time.
Three liberals on the court were not sure if a catholic school dedicated to teaching the Word of Christ could be lumped together with a charter school program that is funded by the government.
The charter school system was created to allow the state to make schools focus more on the arts, science, or language, according to Elena Kagan, who was addressing lawyers representing the archdioceses.
She says that when states created their charter school systems they didn’t want to give money to every religion in the country. Now you’re saying to the state that you have to fund the Yeshiva. You have to create a school system that includes religious charter schools because you have established themadrasas.
Kagan also pointed to the contract that St. Isidore negotiated with the state in order to be a charter school, a contract that, as she put it “you modified to incorporate various church autonomy principles.” Lawyer Michael McGinley, representing St. Isidore, acknowledged that the school struck certain provisions in the standard charter school contract.
“What if you wanted to remove other provisions due to the fact that the religious education that you thought was consistent with the church’s mission wasn’t?” she asked. McGinley said that was part of the contracting process.
Changing that long-held constitutional norm could have profound and vastly different consequences in different states. Some states, for instance, might find that “our traditions are not to allow the teaching of religion in our public schools.”