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Proponents of expanding Catholic religious teachings to rural areas through St. Isidore of Seville Catholic Virtual School, and the state board that initially offered them sanctioning, are appealing after the Oklahoma Supreme Court found the scheme unconstitutional.

The case hinges on Oklahoma Catholic leaders’ insistence that charter schools, which are defined in state and federal law as public schools, are actually private schools — and that denying them equal access to government funding to operate one would violate their right to free exercise of religion.

One of the nation’s foremost experts on the separation of church and state — who was the principal drafter of three guides on religious freedom sent to every public school in the nation by the U.S. Department of Education in 2000 — believes a win for St. Isidore is possible and would represent “the most radical change to religious freedom under the First Amendment in American history.�

“Many people in this country have forgotten that their religious freedom depends on keeping government out of religion,� said Charles Haynes, senior fellow for religious liberty at the Freedom Forum. “The separation of church and state was seen as a core protection for religious freedom because that had been the history throughout humanity before — oppression and violence and government attempts to control religion. Many of our founders came from countries where there had been holy wars. And they said, ‘Here, we aren’t doing that. If we are going to have freedom of religion, we are going to have no entanglement between religion and government.’�

Motive and opportunity

While Oklahoma City Archbishop Paul Coakley and Tulsa Bishop David Konderla declined requests to answer questions, the chancellor for the Archdiocese of Oklahoma City told the Tulsa World that the idea for St. Isidore emerged naturally during the pandemic — not from any desire to serve as a legal test case between decades-old legal doctrine on church-state separation.

“The two dioceses have long had a strong desire to provide Catholic education throughout Oklahoma, including rural areas where brick and mortar Catholic schools are not financially feasible. The question was how,� said Chancellor Michael Scaperlanda, who is also an emeritus faculty member at the University of Oklahoma College of Law. “The ability of Catholic schools in Oklahoma to deliver excellent virtual education during the early days of COVID gave us the confidence that we could provide this sort of education statewide, resolving the ‘how’ question. The question then became how to fund it.�

A trio of Supreme Court rulings over a five-year period were viewed by Scaperlanda and other proponents of St. Isidore as opening up a new window of opportunity for funding.

They went like this:

• Trinity Lutheran Church of Columbia, Inc. v. Comer, director, Missouri Department of Natural Resources, June 2017 — SCOTUS held that the state of Missouri unconstitutionally excluded a religious preschool from a playground resurfacing program open to nonprofit organizations because of religion.
• Espinoza v. Montana Department of Revenue, June 2020 — SCOTUS found the Montana Supreme Court violated the free exercise clause of the First Amendment by invalidating a private school choice program because it included religious schools.

• Carson v. Makin, June 2022 — SCOTUS held that Maine violated the free exercise clause of the First Amendment by excluding religious schools from a program that allowed parents to direct state funds to private schools.

“With the U.S. Supreme Court’s rulings in Trinity Lutheran and Espinoza, it was becoming clear — became even clearer after Carson — that the free exercise clause of the First Amendment prohibited states from discriminating against religious entities in the funding of private educational initiatives, like the innovative educational programs that Oklahoma funds through privately run charter schools,� said Scaperlanda. “Given our desire to offer Catholic education throughout the state, the two dioceses decided it was worth the effort despite the possibility of this becoming a ‘test’ case.�

State sanctioning for St. Isidore of Seville Catholic Virtual School was secured in 2023, but State Attorney General Gentner Drummond successfully challenged the constitutionality of the St. Isidore proposal at the Oklahoma Supreme Court in 2024.

In response to the St. Isidore and Statewide Virtual Charter School Board appeals, Drummond’s attorneys filed a court brief recently that addressed those three Supreme Court rulings head-on.

“Sometimes you can push a good thing too far. The Trinity Lutheran-Espinoza-Carson Trilogy protects free exercise rights by ensuring that religious institutions are not barred from generally available benefits programs. Oklahoma strongly supports that principle,� the brief reads. “But that principle has limits, and, as this Court recognized in Carson, it does not require the creation of religious public schools. The Court should reject petitioners’ invitation to extend the Trinity Lutheran Trilogy to hold that States that offer charter schools must create and fund religious charter schools.

“Adopting that position would upend the charter school system to the detriment of children and families whose hopes are tied to such schools and radically change the relationship between Church and State. At the very least, States remain free under the Constitution to opt against going down that path.�

Who’s fighting for St. Isidore?

St. Isidore’s proponents have said publicly that the application for state sanctioning and funding was developed in concert with a religious liberty clinic at the University of Notre Dame Law School, where Supreme Court Justice Amy Coney Barrett, a conservative bloc member, once taught.

She has recused herself from the case.

Justice Barrett also has past ties to the conservative Christian legal advocacy group Alliance Defending Freedom, whose lawyers are handling the Statewide Virtual Charter School Board’s half of the appeal to the Supreme Court.

From 2011 to 2017, Barrett was paid to teach at a summer program for Christian law students that was facilitated by ADF.

In its latest online pledge drive, which was posted in mid-April, ADF posted a video explainer on St. Isidore, summing up its argument in these simple terms: “Religious organizations should be afforded the same access to public benefit programs as other private organizations — equally and without discrimination.�

“This case is not just about St. Isidore — it’s about standing against discrimination against people of faith. It would be a significant win for both religious freedom and school choice. It’s only through the help of our Ministry Friends’ generosity that this and more cases like it are fueled to protect your religious freedom. Please give a gift to help defend freedom today,� reads the appeal.

Represented by Notre Dame Law School’s Lindsay and Matt Moroun Religious Liberty Clinic and law firms Dechert LLP, and Perri Dunn PLLC, St. Isidore’s proponents — the Archdiocese of Oklahoma City and the Diocese of Tulsa — say they’ve been denied their right to participate in Oklahoma’s charter school program based solely on their religion.

First Amendment fight

The first 16 words of the First Amendment of the Constitution are at the heart of the legal controversy over the St. Isidore charter school proposal: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.�

Haynes, senior fellow for religious liberty at the Freedom Forum, has worked for decades to promote liberty of conscience — the freedom to hold beliefs and convictions without interference from the government or others — and religious literacy and civil discourse.

He says the establishment and free exercise clauses coexist in the First Amendment because they were intended to function together to protect religious liberty.

“This case is another opportunity for many of these (Supreme Court) justices to expand their emphasis on the free exercise clause — and many would say to the expense of the establishment clause,� Haynes said in an interview with the Tulsa World. “They are, I think, of a mind that the 70 years the establishment clause has been applied to the states — and therefore public schools — that the establishment clause has been applied in a way that has come at the expense of free exercise.

“Some scholars and observers of the court have called this ‘even handed neutrality,’ and whether one likes it or not, I think that is what this court is trying to enforce under the establishment clause — that secular and religious groups must be treated the same. That’s a sea change.�

Haynes attributes this shift in part to some modern separationists taking extreme steps to demand public education completely devoid of the subject of religion or free practice of individual religious rights.

“Some said, ‘You can’t have religious clubs, you can’t bring your Bible to school.’ They did that in such an extreme way on that side that it gave separation a bad name,� Haynes said. “The traditional separationists in this country were Southern Baptists.

“Many people in this country have forgotten that their religious freedom depends on keeping government out of religion. Baptists were put in prison in Colonial Virginia for preaching in open air because that was against the law. Baptists were oppressed and kept in the hatches, and the Founders fought for disestablishment of the Anglican church, and they fought hard for the First Amendment because they wanted the Baptists to be free.�

The establishment clause prohibits the government from establishing or creating an official religion or actions that unduly favor one religion over another or religion over non-religion, while the free exercise clause protects both the right to believe in and practice any religion or no religion at all.

“They go hand in hand — these two principles are not at war. They are inseparable for one freedom. That’s the American definition of religious freedom,� said Haynes. “It has created the boldest and most successful experiment in religious freedom in the history of the world. We have countless religions in this country and many, many people who have no religion. Why is that?

“Because the arrangement, the framework in this country has worked so well. Gradually, we came to live up to this framework of protecting everyone’s religion. If this court decides that model doesn’t work anymore and it is harmful to religious freedom in their view to have these safeguards against government intrusion, good luck to them.�