WASHINGTON (BP) — Whether taxpayers should be forced to fund religious charter schools came before the U.S. Supreme Court today (April 30) in the first case of its kind.

The court is considering whether to overturn a June 2024 Oklahoma Supreme Court ruling that a St. Isidore of Seville Catholic Virtual School (SISCVS) of Oklahoma City would be unconstitutional, and would violate state and federal law. The school would be the first publicly funded religious charter school in the nation.

“Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian,” the Oklahoma court said last year. “However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State. St. Isidore cannot justify its creation by invoking Free Exercise rights as a religious entity.”

In a combined appeal by St. Isidore, the Oklahoma Statewide Charter School Board and others, the petitioners said they were denied the benefit of opening a charter school “for no reason other than that they are religious,” according to documents filed with the court.

In oral arguments on April 30, Associate Justice Sonia Sotomayor, considered liberal, suggested that approval of the school’s petition could lead to such hypotheticals as New York, for instance, facing the approval of a charter school application from a Hasidic community for a yeshiva to almost exclusively study the Talmud and other religious texts, none of them in English.

“I don’t have to imagine very hard to come up with a hundred hypotheticals like this, because religious communities are really different in this country and are often extremely different from secular communities in terms of the education that they think is important for their young people and is critically important to their faith,” Sotomayor mused. “I mean, nobody would say that the kind of instruction that exists in the kind of school that I laid out, which are … there are many of, is not critically important to the faith and to the training of young people in the faith according to that community.

“Does New York have to say yes, even though that curriculum is super different from the curriculum that we provide in our regular public schools? Yes, come join our completely taxpayer-funded charter school program?”

Among the conservatives, questions centered on why the Catholic Charter school would necessarily become a public school through its charter with the state, although the state defines charter schools as public schools by definition.

“Mr. Garre, would you elaborate on your statement that public charter schools must by force be public?” Associate Justice Clarence Thomas asked Gregory Garre, the respondent’s attorney. Thomas also stressed that the school board disagreed with Garre’s opinion.

Oklahoma charter schools “bear all the hallmarks,” Garre responded. “This court has recognized they’re free, open to all, funded by taxpayers, controlled by the state with respect to their curriculum. And I hope we can talk about that during this argument. They’re required to meet non-discrimination laws, and they’re nonsectarian. All the features that this court recognized in Carson and had little difficulty applying. So in … the way you look at this case, there is no way that St. Isidore can participate in the charter program and remain private.”

But whether St. Isidore of Seville Catholic Virtual School would be a public school was the main point disputed by lone Oklahoma State Supreme Court dissenting justice Dana Kuehn in June 2024, when the Archdiocese of Oklahoma City lost its case at the state level.

“The Oklahoma Constitution requires the State to create a system of public schools, ‘free from sectarian control’ and available to all children in the State,” Kuehn wrote in June 2024, citing Article 1, section 5 of the constitution. “It does not bar the State from contracting for education services with sectarian organizations, so long as a state-funded, secular education remains available statewide. St. Isidore would not be replacing any secular school, only adding to the options available, which is the heart of the Charter Schools Act.”

Associate Justice Samuel Alito gave Garre an opportunity to respond to an argument made by the petitioners, which framed one of the respondent’s arguments as anti-religious at its core. Simply, Attorney General Gentner Drummond’s argument that approval of the school would necessitate the approval of applications from religious groups that many taxpayers would oppose, attorneys for the charter school claimed, was nothing more than evidence of bias toward all religions.

“Isn’t that a very serious Masterpiece Cakeshop problem?” Alito asked, referencing the case in which the High Court ruled in favor of Jack Phillips. “This whole position that you’re defending seems to be motivated by hostility toward particular religions.”

Garre disagreed.

“That’s entirely incorrect,” Garre said. “And I think the right way to understand those comments is the Attorney General is simply making a point that members of this Court have made, which is that once you open up government programs and bring people into becoming part of the government and approve one religion, not another religion or this religion, there’s going to be strife that comes from that.”

The High Court is expected to rule in the case by this summer.

With Associate Justice Amy Coney Barrett recusing herself from the opinion, a split decision is possible, but not certain. In such a case, the lower court’s decision against the charter school would stand.

(EDITOR’S NOTE — Diana Chandler is Baptist Press’ senior writer.)