Last week, the U.S. Supreme Court returned an unexpectedly good decision for those of us who care about religious freedom in Oklahoma Statewide Charter School Board v. Drummond. At question was a case out of Oklahoma, where the Catholic dioceses of Oklahoma City and Tulsa sought to create a taxpayer-funded religious charter school, which would have been the first of its kind in the nation. The Wild Hunt covered the oral arguments last month.
The court deadlocked on a 4-4 ruling thanks to Justice Amy Coney Barrett recusing herself from the case, which meant the ruling reverted to the Oklahoma Supreme Court’s decision. The state supreme court ruled 6-2 last year that the proposed charter school, St. Isidore, would have violated the U.S. Constitution’s first amendment establishment clause, arguing that it would “require students to spend time in religious instruction and activities, as well as permit state spending in direct support of the religious curriculum and activities within St. Isidore – all in violation of the establishment clause.”
To be clear, this is not a case about a private Catholic school, which is funded by the church and tuition payments, but a publicly-funded charter school. Charter schools sit in a gray area of the law. They are considered public schools in terms of the funding they receive from taxpayers, but private organizations in terms of accountability and management; our taxes pay for them, but usually we don’t get a say as voters in how they are managed. (Disclosure: outside of The Wild Hunt, I work for a labor union that represents school employees, including some charter schools.)
It seems straightforwardly true that creating a publicly-funded school that is affiliated with a religious institution and includes that institution’s doctrine in its curriculum would be a violation of the first amendment’s establishment clause, which reads “Congress shall make no law respecting an establishment of religion.” But under Chief Justice John Roberts, the Supreme Court has made a number of decisions that have chipped away at this basic separation of church and state by relying on the other first amendment clause regarding religion, the “free exercise clause”: “…or prohibiting the free exercise thereof.”

U.S. Supreme Court [Wikimedia Commons]
The Roberts court has issued several decisions that have compelled the government to fund religious organizations under the logic that denying them such funding would go against the ability to freely exercise the religion. These cases include Trinity Lutheran v. Comer, Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022). These cases started off innocuously – Trinity Lutheran was about whether or not a Lutheran school could get a state grant to resurface its playground – but it’s exactly from such small stakes that the Supreme Court builds precedents to justify massive rearrangements of our social order.
And St. Isidore would have represented just such an upheaval, make no mistake. Allowing religious institutions to open tax-funded charter schools would signal an enormous transfer of resources from public schools that are required to serve all students and provide them a secular education developed according to standards set by representatives of the people to religious institutions who have none of that accountability. Should those kinds of schools become common, it’s almost certain we would see similar attempts at having religious institutions divert tax funding from other public entities as well.
Whenever these cases come up, we have a few readers pop up to note that this could be an opening for Pagan organizations, too – indeed, that has been the position of some TWH writers, too. But from my perspective, the idea that these decisions could meaningfully benefit Pagans is unlikely. For one, the kinds of programs the Supreme Court has signaled its interest in expanding to religious institutions heavily favor groups that look like Christian churches. In most cases I suspect we would run into brick walls, if not of outright anti-Pagan discrimination then of bureaucratic insistence that our religious practice be organized in a way that is antithetical to many of our community’s instincts. And even were some few Pagan organizations able to benefit, it would be far outweighed by the damage done by putting more and more public dollars in the hands of Christian nationalist groups that seek to impede on our rights.
What’s best for Pagans is a secular society based on freedom of religion – a proposition that seems more tenuous every day.
The good news here is that for once the Supreme Court has not given any further prizes to those seeking to use public coffers for religious ends, but the bad news is that it’s likely only because Coney Barrett recused herself. (While she has not said specifically why she did this, she had a prior affiliation with Notre Dame Law School’s Religious Liberty Clinic, which represents St. Isidore.) The 4-4 decision does not actually settle the question in any meaningful way, and it’s certain that there will be another attempt to create publicly-funded religious charter schools in the years to come – and this time they’ll make sure not to include such obvious conflicts of interest.
The situation, unfortunately, reminds me of the 2016 case Friedrichs vs. California Teachers Association, which was set to impose so-called “right-to-work” conditions on public employee unions across the country. Justice Antonin Scalia died between the oral argument of Friedrichs and the decision, which left the court to split along 4-4 lines again. Unions cheered at the time – the split was a reprieve against a major assault on labor rights. But shortly thereafter, the court added Neil Gorsuch to the bench, and within a matter of months effectively imposed right-to-work rules on public sector unions by overturning precedent in Janus v. AFSCME.
It’s good news that for now there will be no publicly-funded religious doctrine taught in Oklahoma through St. Isidore. But we need to remain vigilant – there’s always next term, and those who would impose their religion on the rest of us are surely already looking for another horse to back.
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