By Ismail Royer

In what is likely to be a seminal case resolving apparent tensions between the Free Exercise and Establishment Clauses of the First Amendment, the Supreme Court heard oral argument last week in a case involving the Oklahoma Attorney General’s attempt to block the opening of a faith-based Catholic charter school. In ruling on the case, however, the Court is also likely to address whether the state attorney general’s constitutionally suspect motives affect the validity of his action against the school.

The case, Oklahoma Statewide Charter School Board v. Drummond, began when the Archdiocese of Oklahoma City sought to open a virtual charter school, St. Isidore of Seville, to serve rural areas and underserved communities and families. The Oklahoma charter school board approved St. Isidore’s charter, but Oklahoma Attorney General Gentner Drummond sued the school and the state charter school board to block it from opening. 

Drummond claims that as a publicly funded entity, the school would be a state actor and barred by the Establishment Clause of the U.S. Constitution, as well as a provision of the Oklahoma Constitution prohibiting state funding of any “sectarian institution.” Drummond has also repeatedly said, however, that he aims to prevent public funds from going to schools that teach Islam and other faiths. 

Oral argument focused primarily on two questions: whether a charter school’s receipt of public funds renders it a state actor subject to the the Establishment Clause’s prohibition on government establishment of religion, and whether the state violates the Free Exercise Clause by providing funds to secular schools but not to faith-based schools.

Justice Samuel Alito also questioned Drummond’s repeated vows to prevent state funding from going to minority religions. Justice Alito cited one of the attorney general’s official statements, where Drummond said:

While many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths, the precedent created by approval of the application will compel approval of similar applications by all faiths.

“Isn’t that a very serious Masterpiece Cakeshop problem?” Justice Alito asked, referring to a 2018 ruling that government hostility toward religion can invalidate an enforcementaction. “This whole position that you’re defending seems to be motivated by hostility toward particular religions.” At one point, Alito said to Drummond’s attorney, “we have statement after statement by the attorney general that reeks of hostility towards Islam.”

Justice Alito also pointed out that the provision of the Oklahoma Constitution invoked by the attorney general has roots in the Blaine Amendment movement, which saw states adopting prohibitions against public funding for “sectarian” school as a means of blocking Catholic participation in public education. This provision, Justice Alito said, has an “unsavory discriminatory history.” When Drummond’s attorney denied that this provision was a Blaine Amendment, Alito accused him of “rewriting history.”

Both the Oklahoma Statewide Charter School Board and St. Isidore raised the Masterpiece Cakeshop argument in their briefs. In the friend-of-the-court brief RFI submitted to the Court, we fleshed out the case that Drummond’s hostility toward minority faiths and the anti-Catholic bigotry behind the state constitutional provision in question rendered the enforcement action against the school invalid under the First Amendment.

In resolving this case, the Supreme Court is likely to focus primarily on whether charter schools are private actors and if so, whether it violates the Free Exercise Clause for states to fund secular charter schools but not faith-based charter schools. If Justice Alito’s line of questioning is any indicator, however, the Court may also clarify the extent to which a government official’s hostility toward particular religions renders his official actions unconstitutional.

In February, RFI interviewed Nicole Garnett, the John P. Murphy Foundation Professor of Law at Notre Dame Law School, about this case for its Faith in the Law video series. Prof. Garnett discussed the legal background of the case and its potential impact on First Amendment jurisprudence and the landscape of public education.

A ruling is expected in the case this summer.

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Ismail Royer is RFI’s Director of Islam and Religious Freedom.