WASHINGTON — In a sign that the barrier between church and state could be further weakened, the Supreme Court on Friday agreed to hear a bid by Oklahoma officials to approve the nation’s first publicly funded religious charter school.
The court, which has a 6-3 conservative majority that consistently backs religious claims, will hear a dispute over the proposed St. Isidore of Seville Catholic Virtual School, which would serve students online throughout the state while maintaining its remit to promote the Catholic faith.
The justices will review an Oklahoma Supreme Court ruling that said the proposal violated both the state and federal constitutions.
The brief court order noted that conservative Justice Amy Coney Barrett, who would normally be a potential key vote in such a case, will not participate. The court did not say why.
Barrett was previously a professor at Notre Dame Law School. and still has ties there. Its religious liberty law clinic is representing the school.
The U.S. Constitution’s First Amendment prohibits the government establishment of religion. But what over time became widely known as the separation of church and state irks some, especially conservative Christians, who believe there should be greater expressions of faith in public life.
The school was first proposed in early 2023 by the Archdiocese of Oklahoma City and the Diocese of Tulsa. The plan is backed by Gov. Kevin Stitt, but opposed by the state’s attorney general, Gentner Drummond, who has argued it is unconstitutional. Both are Republicans.
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The Oklahoma Statewide Charter School Board approved the application in June 2023 despite concerns about the school’s religious nature.
Drummond immediately took legal action, asking the Oklahoma Supreme Court to intervene and declare the plan unlawful.
He has pointed out in court filings that the state constitution explicitly requires public schools to be “free from sectarian control” and that no public money should ever be used to support religious institutions.
The state board and the school argue that in preventing the school from participating in a state program, Oklahoma is inhibiting the free exercise of religion under a separate provision of the First Amendment.
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The board is represented by Alliance Defending Freedom, a conservative Christian legal group.
Among the questions raised by the case is whether a privately run school that contracts with the state is a “state actor,” meaning it is effectively an arm of the government.
In June, the Oklahoma Supreme Court ruled that the plan was unconstitutional, embracing Drummond’s arguments.
“Under both state and federal, the state is not authorized to establish or fund St. Isidore,” the court held.
It also found that by participating in the state program, the school “will be acting as a surrogate of a state” and is therefore a state actor.
The U.S. Supreme Court has in several recent cases chipped away at the separation of church and state.
In one series of three related cases, the court opened the door to taxpayer money being funneled to religious entities, including schools, in certain circumstances.
The conservative justices have also signaled that government officials have sometimes gone too far in seeking to avoid the appearance of endorsing religion under the First Amendment’s establishment clause. In doing so, officials have threatened free exercise rights, the court has found.
In one 2022 case, the court ruled in favor of a public high school football coach who was suspended for leading Christian prayers with players on the field after games. The same year, the court faulted the city of Boston for barring a Christian group from flying a flag at City Hall under a program open to groups of all types across the city.
