7 hours ago
8
Updated
The Supreme Court appeared open on Wednesday to allowing Oklahoma to use government money to run the nation’s first religious charter school, which would teach a curriculum infused by Catholic doctrine.
Excluding the school from the state’s charter-school system would amount to “rank discrimination against religion,” Justice Brett M. Kavanaugh said.
The justices appeared to be divided along the usual ideological lines, with the court’s Republican appointees largely sympathetic to the school and its Democratic ones quite wary. But Justice Amy Coney Barrett was recused, raising the possibility of a tie vote if a single Republican appointee joined the three Democratic ones. That would leave a state court decision rejecting the school intact.
Chief Justice John G. Roberts Jr., who asked questions supportive of both sides, seemed to be the most likely member of such a potential alliance.
The school: The school, St. Isidore of Seville Catholic Virtual School, aims to incorporate Catholic teachings into its activities. A powerful conservative Christian legal group, the Alliance Defending Freedom, is representing it.
Oklahoma fight: After the state’s charter school board approved the proposal to open St. Isidore, the state’s attorney general, Gentner Drummond, a Republican, sued to stop it. He said a religious public school would violate the First Amendment and the State Constitution’s ban on spending public money to support religious institutions.
Image
What happens next? The court will probably not issue a decision until late June or early July.
Now that the argument is complete, the justices will cast tentative votes at a private conference in the coming days. The senior justice in the majority will then assign the majority opinion to a colleague or, just as likely, keep it. Draft opinions, almost certainly including concurrences and dissents, will be prepared and exchanged.
On average, it takes the Supreme Court about three months after an argument to issue a decision. But rulings in a term’s biggest cases — and this one certainly qualifies — tend not to arrive until early summer, no matter how early in the term they were argued.
This case was heard on what had originally been the last scheduled day for arguments in the current term, giving the justices only about two months to prepare opinions on the major constitutional question it presents. (The court recently added another argument day, on May 15, to consider the scope of court orders blocking President Trump’s executive order seeking to eliminate birthright citizenship.)
Scholars have given varied explanations for why the biggest cases tend to land in early summer, regardless of when they were argued. One is that justices keep polishing the opinions that will define their legacies until the last possible moment.
A 2015 study in The Duke Law Journal suggested a more personal reason: “The justices, most of whom have busy social schedules in Washington, may want to avoid tensions at their social functions by clustering the most controversial cases in the last week or two of the term — that is, just before they leave Washington for their summer recess.”
Image
The case was heard by eight justices rather than the usual nine, leaving open the prospect that it could end in a tie vote.
That would give rise to a judicial anticlimax in which the court would most likely issue an unsigned opinion containing a single sentence: “The judgment is affirmed by an equally divided court.”
That would leave the Oklahoma Supreme Court’s opinion blocking the charter school in place and set no national precedent, meaning that a legal issue important enough to have warranted a scarce spot on the court’s docket would remain unresolved.
The eight-member court that heard the case is the result of Justice Amy Coney Barrett’s recusal, which was unexplained but probably based on her friendship with a lawyer involved in the case.
During the argument, the justices appeared to be divided along the usual ideological lines, with the court’s Republican appointees largely sympathetic to the school and its Democratic ones quite wary. Chief Justice John G. Roberts Jr., a Republican appointee who asked questions supportive of both sides, seemed to be the most likely member of a potential alliance with the three liberal members.
The Supreme Court was short-handed for about a year after Justice Antonin Scalia’s death in February 2016. The justices worked hard then to avoid tie votes, achieving a level of agreement unseen at the court in more than 70 years, sometimes by issuing exceedingly narrow decisions to avoid deadlocks.
“Having eight was unusual and awkward,” Justice Samuel A. Alito Jr. told a judicial conference a few days after Justice Neil M. Gorsuch joined the court in April 2017, restoring the court to full strength. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions than we would have issued otherwise.”
Soon after Justice Scalia’s death, Chief Justice John G. Roberts Jr. sent a memorandum to the other justices.
“Depending on the outcome of the election of both the president and the Senate, it may be some time after Inauguration Day before we even have a nominee, let alone a new colleague,” he wrote. “I think it quite possible that we will be operating as an eight-member court for over a year.”
It was possible, he wrote, to have cases ending in tie votes reargued once a new justice arrived. But he said that was undesirable.
“The court will unfortunately be the focus of heated partisan debate over the summer and into the fall,” he wrote, “which would be exacerbated if specific 4-4 cases were set to be reargued when a new justice joins the court.”
If the Oklahoma case ends in a tie vote, that will almost certainly be the end of the matter.
The argument has ended.
Chief Justice John G. Roberts, who is seen as the key vote in this case, has been less pointed than some of his conservative colleagues but has also expressed skepticism that charter schools are any different than other instances in which the court has barred discrimination against religious groups.
Justice Samuel A. Alito Jr., who had been quiet during the first portion of the argument, jumped in to ask the lawyer for the Oklahoma attorney general’s office a series of hot-button hypotheticals and to question whether the attorney general’s opposition to the charter school’s argument was motivated by concerns that non-Christian religions would also want to open charter schools. The lawyer for the attorney general’s office pushed back sharply on that notion.
In Case You Missed It
So far, it appears there may be a split among the justices along ideological lines. The court’s three liberals have voiced concerns about the arguments by the religious Oklahoma charter school and the Trump administration. The court’s conservatives appear to be receptive to the charter school’s position. Justice Brett M. Kavanaugh has been particularly active in expressing skepticism of the Oklahoma attorney general’s office position that a religious public school would violate the First Amendment’s prohibition of government establishment of religion.
Image
Justice Kavanaugh says there’s a “concern” that religious food banks and adoption agencies might run afoul of the First Amendment under the argument by the Oklahoma attorney general’s office. Both Justice Gorsuch and Chief Justice Roberts noted that they shared that concern. The lawyer for the Oklahoma attorney general’s office tried to assuage the concern, saying that the charter school situation is distinct because charter schools are created by the state.
Video
transcript
transcript
“I think the concern here is that religiously operated senior homes or food banks or foster care agencies or adoption agencies or homeless shelters, many of which get substantial funding from the government, would potentially, under your theory, this is the concern, become state actors and thus not be able to exercise their religion. So can you explain why the principle that you’re articulating would not have that result?” “So in none of those cases, do you have contractees that actually become a part of the state as charter schools —” “When you say —” “Established —” “Sorry, I just want you to come back — when you say a part of the state, I want to drill down on that.” “Well, that they’re established by the state, the legislature, that they become components of the state system, which is what the Oklahoma Supreme Court held here.”
Justice Neil M. Gorsuch provided a brief moment of levity after the lawyer for the Oklahoma attorney general described the intensive state oversight of public school curriculum, including requiring students to learn about President Ronald Reagan’s famous 1987 speech calling on Soviet leader Mikhail Gorbachev to tear down the Berlin Wall and the rules of grammar. Justice Gorsuch broke in to say: “I’m delighted to hear you’re still teaching the problems of dangling modifiers” in Oklahoma public schools.
Video
transcript
transcript
So in Fulton, you had Catholic Charities, which had to be incorporated. It was incorporated separately, incorporated under state law, and can only provide adoption services with incredible oversight from the city. They can’t take foster children in. They can’t place them without comprehensive governmental involvement. What’s the — again, what’s the difference? How do we draw that line so that we capture public schools on your account, but we don’t capture — and you seem to say we shouldn’t capture entities like Fulton. And by the way, I’m delighted to hear they’re still teaching the problems of dangling modifiers in Oklahoma schools.
The court’s conservative justices are questioning why a religious charter school would be different from other religious groups that are allowed to receive government money, like a Catholic foster agency. Garre, the lawyer for Oklahoma’s attorney general, argues that the key distinction is that charter schools are created by the state.
So far, the court’s three liberal justices have dominated in questioning during the oral argument. All three have expressed deep skepticism of the position by lawyers for the Trump administration, the Oklahoma charter school board and the school, all of whom argued that public money can be used to fund a religious charter school in Oklahoma.
Gregory G. Garre, who represents the Oklahoma attorney general, has started his argument.
The court’s conservative justices have still been rather quiet. I’m wondering if we will hear more from them now that the lawyer for the Oklahoma attorney general, who opposes the school, makes his argument
Justice Brett M. Kavanaugh appeared to try to help Solicitor General D. John Sauer explain his argument. Justice Kavanaugh said that he wanted to clarify that under the Trump administration’s position, “the state can’t favor one religion over another.” Sauer answered that, yes, that was correct.
Video
Image
Gentner Drummond, Oklahoma’s attorney general, has been involved in two Supreme Court cases this term. In both, Mr. Drummond, a Republican, took positions at odds with those of other members of his party.
Wednesday’s case started when Mr. Drummond sued to block a religious charter school that a state board had authorized, saying the school would violate Oklahoma law and the First Amendment’s protections of religious freedom.
“Unfortunately,” Mr. Drummond wrote in a formal legal assessment, “the approval of a charter school by one faith will compel the approval of charter schools by all faiths, even those most Oklahomans would consider reprehensible and unworthy of public funding.”
Other Republican politicians, including Gov. Kevin Stitt of Oklahoma, supported the school, which would be run by the Archdiocese of Oklahoma City and the Diocese of Tulsa and would incorporate Catholic teachings into every aspect of its activities.
In a Supreme Court brief, Mr. Stitt accused Mr. Drummond of having “open hostility against religion.”
Mr. Drummond fired back. “If a taxpayer-funded religious charter school is allowed to open in Oklahoma,” he said in a March news release, “it will only be a matter of time before taxpayers are funding schools dedicated to Shariah law, Wicca indoctrination, Scientology instruction — even the Church of Satan.”
Mr. Stitt said in his brief that the attorney general had engaged in “alarmism over the creation of charter schools of other religions.”
In a second Supreme Court case, the justices ruled for Mr. Drummond’s position in February, granting a new trial to Richard Glossip, a death row inmate. The ruling was based in part on an extraordinary concession from Mr. Drummond, who said that Mr. Glossip had been convicted based on questionable evidence.
“Our justice system is greatly diminished when an individual is convicted without a fair trial,” Mr. Drummond said in a statement after the ruling, “but today we can celebrate that a great injustice has been swept away.”
Mr. Drummond said his stance had come with a political cost.
“I’ve been criticized by prosecutors, attorneys general and politicians,” he said in an interview in October, “and that really has absolutely no bearing on my commitment to the rule of law. And if at the end of my term the citizens of Oklahoma would prefer to have a politician, as opposed to one who’s going to follow the law, then they have every right to elect that person and remove me from office.”
St. Isidore and its allies are applying reasoning from a trio of recent Supreme Court cases: 1) Carson v. Makin, which involved the state of Maine paying tuition for private schools when a public school was not available, 2) Espinoza v. Montana, which involved a tax credit program for private school scholarships and 3) Trinity Lutheran Church v. Comer, which involved a state program to pay for playground improvements. In each case, the Supreme Court ruled that states could not bar religious groups from the benefits. Chief Justice John G. Roberts summed up the court’s position in the Montana case: “A state need not subsidize private education,” he wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
The solicitor general, Sauer, is arguing that the charter school is open to all students and therefore is in line with court precedent on the First Amendment. The questioning is still dominated by the court’s three liberal members, who continue to express skepticism of the arguments by the Trump administration, which is supporting the religious charter school board and the school.
The justices appear to be weighing the potential consequences on 45 other states that also allow public charter schools. Michael H. McGinley, a lawyer for St. Isidore, said that states would have a choice on how they set up charter schools, suggesting that some states could increase oversight and put them more directly under government control. But that would in some ways defy the original purpose of charter schools, which were created to be alternatives offering families other options beyond traditional public school.
Video
Solicitor General D. John Sauer has just started speaking. This is his first oral argument as the Trump administration’s chief representative before the Supreme Court.
Image
When President Trump’s new solicitor general faces the justices from behind the mahogany lectern during Wednesday’s argument, they will see a familiar face.
Last April, as a private lawyer, D. John Sauer stood before them, boldly claiming that Mr. Trump was immune from criminal prosecution and free to commit lawless acts while president, subject to prosecution only after impeachment by the House and conviction in the Senate.
In a landmark ruling, the conservative supermajority agreed with him.
After his election, Mr. Trump selected Mr. Sauer, a 50-year-old former Supreme Court clerk and Rhodes scholar from Missouri, to serve as the administration’s top advocate before the court to push forward the president’s agenda.
Mr. Sauer, who declined an interview request, will argue his first case on behalf of the federal government as a friend of the court in support of an Oklahoma public charter school that seeks to use government money. The school, St. Isidore of Seville Catholic Virtual School, is to be operated by the Archdiocese of Oklahoma City and the Diocese of Tulsa and dedicated to infusing its curriculum with Catholic teaching.
In a filing to the justices requesting to take part in the oral argument, Mr. Sauer described the federal government’s position as arguing that “Oklahoma cannot exclude a school from the charter-school program based solely on religious character.”
Mr. Sauer’s career, both in government and in private practice, has been characterized by his legal battles on culture wars issues, including fights against same-sex marriage, transgender girls in women’s sports and abortion.
A native of St. Louis, Mr. Sauer grew up in a politically connected, wealthy Catholic family. Phyllis Schlafly, the conservative anti-abortion activist, was a friend of the family. She praised the younger Mr. Sauer as “a brilliant young lawyer” for his legal writings opposing same-sex marriage.
His academic credentials are similar to other recent solicitors general, including an elite private school education, followed by studies at Oxford University and Harvard Law. He clerked for Justice Antonin Scalia.
But, unlike other lawyers who have held the job of solicitor general in recent years, Mr. Sauer spent much of his career in his home state of Missouri, rather than at a top Washington firm or in academia.
He served as Missouri solicitor general under Josh Hawley, who was the state’s attorney general before becoming a U.S. senator. During Mr. Sauer’s confirmation hearings, Mr. Hawley recounted how he offered Mr. Sauer the job over chicken fried steaks at a Cracker Barrel.
During his time in the state attorney general office, according to information Mr. Sauer provided in the confirmation process, he participated in several trainings for the Alliance Defending Freedom, the conservative legal organization that represents the Oklahoma charter school.
Justice Sonia Sotomayer says that in past cases, where the Supreme Court has allowed government money to go to religious schools, the programs “had an intermediary,” such as a parent, who would use state money to pay for tuition at a private school. A charter school, by contrast, is directly funded by the government.
In Case You Missed It
During the first section of the argument, the lawyer for Oklahoma’s charter school board argued that the Constitution allows states to sponsor and finance religious charter schools. Much of the questioning came from the court’s three liberal justices – Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson – who each appeared to express skepticism of the board’s argument.
Chief Justice John G. Roberts Jr. also probed whether a ruling in favor of the charter school would be a significant expansion of the court’s previous rulings that had distinguished between government money provided to parents to spend on private schools, including religious ones, as opposed to government support provided directly to religious schools.
So far, during questioning, the court’s three liberal justices have expressed skepticism of arguments by the Alliance Defending Freedom that using government money to teach a curriculum infused by Catholic doctrine would be in keeping with court precedent.
The justices are now hearing from Michael H. McGinley, the lawyer for St. Isidore of Seville Catholic Virtual School.
Image
In a back and forth with Justice Brett M. Kavanaugh, the lawyer for the charter school board argues that Oklahoma allows all sorts of charter school education with an exception: religion. “There’s one type of education that’s off limits, and that’s religion,” Mr. Campbell said.
Video
The court is weighing to what extent this case is similar to its prior ruling in Carson v. Makin, in 2022, which said that Maine must pay for tuition at religious private schools, if it paid for tuition at nonreligious private schools. The ruling was the latest in a series of recent cases in which the Supreme Court has said that states cannot discriminate against religious schools if they are sending state money to other private groups.
James A. Campbell, the lawyer for the Oklahoma Statewide Charter School Board, which approved St. Isidore, opened by presenting the core argument of religious charter school supporters: St. Isidore is a private organization created by the Catholic Church, he said, but it is barred from participating in a charter school program like other private groups, because Oklahoma state law deems “religion to be the wrong kind of diversity.”
Video
Image
A legal challenge to the decades-old federal approval of a widely available abortion pill. A lawsuit by a baker who refused to make a wedding cake for a same-sex couple. A court fight over a state law that bans conversion therapy for minors.
Each of these major Supreme Court cases has a common thread: the lawyers.
The Alliance Defending Freedom, a conservative Christian legal advocacy organization founded in 1994, has become a mainstay on the court’s docket. Lawyers from the group are taking center stage at the Supreme Court again on Wednesday to represent the Oklahoma Statewide Charter School Board, claiming that the state must provide government money to pay for the religious charter school.
“We exist to defend religious freedom and freedom of speech,” said Jim Campbell, the group’s chief legal counsel, who is scheduled to argue the Oklahoma charter school case on behalf of the school board.
The organization is based in Arizona and started more than three decades ago as a legal-defense fund for the conservative Christian movement. In its most recent annual report, the A.D.F. said it had won 66 lawsuits cases in 2024 and had “total support and revenue” of more than $111 million.
In the report, the group’s chief executive, Kristen Waggoner, pointed to President Trump’s election as a “rebuke to progressive ideology.”
“We must now reclaim the truths and freedoms that made the West truly great,” Ms. Waggoner wrote, adding that the advocacy group was “made for this moment” after years of leading “a global resistance to protect free speech, safeguard parental rights and defeat gender ideology.”
In the court’s last term, the organization represented a group of anti-abortion doctors and medical organizations who sued the federal Food and Drug Administration, seeking to sharply curtail access to mifepristone, a widely available abortion pill. Erin Hawley, an A.D.F. lawyer and the wife of Senator Josh Hawley of Missouri, argued the case. The justices rejected the lawsuit and upheld access to the pill, finding that the anti-abortion groups lacked a direct stake in the dispute.
That loss came after a series of high-profile victories in the court. In 2014, the organization represented Hobby Lobby, a Christian-owned craft store, in a landmark case exempting corporations controlled by religious families from a requirement imposed by the Affordable Care Act that they pay for insurance coverage for contraception.
In 2018, the justices ruled in favor of Jack Phillips, a Colorado baker and A.D.F. client who had refused to make a wedding cake for a gay couple. In a narrow ruling, the court held that the Colorado Civil Rights Commission, which had evaluated the baker’s reasons for declining to make the cake, had violated the free exercise clause of the First Amendment. In 2023, the justices sided with the A.D.F. in another challenge from Colorado, this time involving a web designer who said she had a First Amendment right to refuse to design wedding websites for same-sex couples despite a state law that forbade discrimination against gay people.
Lawyers for the group are already scheduled to appear before the justices next term in another Colorado case, a First Amendment challenge to a state law that prohibits licensed therapists in Colorado from performing conversion therapy intended to change a minor’s gender identity or sexual orientation.
Image
The very identity of the nation’s 8,100 charter schools is on the line on Wednesday, as the Supreme Court considers whether they are fundamentally public or private institutions.
If they are public, there is little room for religious instruction, as proposed by the school at the center of the case, St. Isidore of Seville Catholic Virtual School, which seeks to open in Oklahoma as the nation’s first religious charter school.
But if they are private, as St. Isidore’s lawyers will argue, banning a religious group from operating a charter school when other nonprofits are free to do so would be religious discrimination.
If the Supreme Court decides charter schools are private, it would most likely allow St. Isidore to open, and potentially pave the way for religious charter schools in other states.
Charter schools, which were created in the 1990s to give families more options, have long occupied a hybrid space in education.
They are like traditional public schools in many ways because they are paid for by taxpayers and free to attend.
But charter schools are also run by private entities, often nonprofits, and are not zoned, allowing students to attend regardless of their ZIP codes. And unlike at many public schools, their teachers typically are not unionized.
Today, about 3.7 million students attend charter schools, in 44 states and Washington, D.C., representing about 7 percent of the public school sector. But in some cities, like Detroit and Philadelphia, enrollment is far greater, representing a third to half of all students.
Whether they should be classified as public or private may hinge on the specifics of Oklahoma state law.
Justices will most likely consider technical issues, like how charter schools are created. In Oklahoma, a state board must approve new charter schools, a fact that many in the mainstream charter school movement argue places them firmly in the public realm.
“A charter school doesn’t exist unless the government gives it reason to open,” said Starlee Coleman, president of the National Alliance for Public Charter Schools, which opposes allowing religious institutions to operate charter schools.
Lawyers for St. Isidore say that it was created by the Archdiocese of Oklahoma City and the Diocese of Tulsa and that it is operated by a board of private citizens. They will argue that St. Isidore is a private school with a government contract.
Any ruling in favor of St. Isidore could have broad implications.
Twelve Republican-leaning states filed an amicus brief in support of St. Isidore’s petition, while 18 states, mostly Democratic-leaning, opposed.
English (US) ·