Comment: Expect battles as Oklahoma lowers church-state wall

By Noah Feldman / Bloomberg Opinion

Oklahoma has approved a public Catholic charter school, which would be the first overtly religious school in the U.S. to be fully funded by government. The arrangement violates the establishment clause of the Constitution as it has been interpreted from its adoption in 1791 until today. Nevertheless, it is possible that the Supreme Court could allow it as part of its ongoing revolutionary transformation of the law of church and state.

That would put us in a brave new world where states come under legal pressure to fund all religious education equally; an outcome that seems sure to increase strife over government-funded religious beliefs, not to mention public education.

The school in question is to be an online institution called St. Isidore of Seville Catholic Virtual School. The name alone is astonishing. I first encountered Archbishop Isidore (560-636) in a history class at my private Jewish high school, where we learned how he proposed the law that took Jewish children away from their parents to ensure they got a Catholic upbringing. He also successfully proposed the law that banned Jews (including those who had converted to Catholicism) from holding public office and wrote an anti-Semitic classic, “De fide catholica contra Iudaeos” (“Of the Catholic faith against the Jews”).

You would think anyone seeking a test case for state funding of religious teaching would have preferred to name the school after a more ecumenical saint. But who knows? Maybe the school’s founders wanted to suggest that the state should fund even the most divisive religious education.

Be that as it may, the Oklahoma Statewide Virtual Charter School Board approved the school. In so doing, it deviated from the long American history of state governments refusing to fund Catholic education directly because doing so would violate separation of church and state.

What makes it conceivable that the Supreme Court might change constitutional law to allow the school is that the conservative majority is in the midst of revolutionizing the field.

Back in the mid-2000s, the court started to allow indirect funding of religious schools via voucher programs. Then last year, things really heated up. In 2022’s Carson v. Makin, the justices held that Maine was not only permitted but actually obliged to fund religious schooling under a program in which it funded private school education for kids from districts without public high schools. Roughly a week later, in Kennedy v. Bremerton, the court ripped up existing establishment clause jurisprudence. It replaced the old tests of secular purpose and endorsement of religion with a vague new “historical practice” test that can mean whatever a majority wants it to mean.

To be sure, if the justices really applied a genuine historical test, they would have to conclude that to be consistent with the First Amendment’s establishment clause, the government cannot directly fund religious schools. The whole point of that clause was that the state wouldn’t pay for ministers to teach the Gospel. An established church, to the framers, was one where the government paid the priest’s salary.

A mountain of historical evidence going back to the 19th century shows American Catholics seeking state funding for schools and being denied it. But the justices could, if they chose, ignore that evidence. They could say that it reflected anti-Catholic discrimination (which it often did) and therefore shouldn’t matter.

Or they could say that funding a charter school is more like providing vouchers to students at private religious schools than it is like funding public religious schools. And if the justices apply the Carson v. Makin framework, they could take the still more extreme position that the state must fund St. Isidore’s because it funds secular charter schools.

Regardless, if the court allows the Catholic charter school to be funded, it will unleash a fight over the funding of charter schools teaching religious ideas. The proponents of St. Isidore’s may not like the result. Consider what will happen when a state is asked to fund an Islamic charter school that preaches that God does not father children nor is God born, thus denying the divinity of Christ. It would be blatantly unconstitutional religious discrimination to fund St. Isidore’s but not the Islamic school.

The upshot is that, unless the justices hold the line somewhere, we are headed for an era of intense public debate about what religious beliefs may or must be funded in schools. Isidore of Seville would recognize that scenario, in which the government pays for religious teaching and implements religious policies. And he would also recognize the legislation of religion that will inevitably follow. Maybe he would even approve.

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”