Barrett-Lite: The Supreme Court Takes Up Major New Religion Clause Case with One Notable Exception
By: Jonathan Turley | January 27, 2025
On Friday, the Supreme Court agreed to review a potentially blockbuster religion clause case in Oklahoma Charter School Board v. Drummond. However, there is a catch. While the lawyers representing St. Isidore of Seville Catholic Virtual School may need every vote they can get in this heavily contested area; they may have to prevail without Justice Amy Coney Barrett who recused herself for an unstated reason.
The case could bring clarity to an area long mired in 5-4 decisions. The question presented is “whether a state violates the First Amendment’s free exercise clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious.”
The basis for the recusal is a mystery. Barrett was on the faculty at Notre Dame University and has close ties to the institution. Notre Dame Law Professor Nicole Garnett has been involved in the case and the Notre Dame Religious Liberty Clinic is on the brief for St. Isidore.
St. Isidore of Seville Catholic Virtual School is a Roman Catholic institution focused on digital learning.
The lower court ruled that such funding of a religious school is unconstitutional. Before the Oklahoma Supreme Court, Oklahoma Attorney General, Gentner Drummond, prevailed in arguing that the charter school board violated state law, the Oklahoma Constitution, and the U.S. Constitution. He insisted that the board should not have chartered the school because “St. Isidore’s educational philosophy is to establish and operate the school as a Catholic school.” He also opposed review by the Supreme Court, warning that the school intends to “serve the evangelizing mission of the church.”
The case could produce one of the most consequential decisions on the separation of Church and State in decades. Given her past interest and writing in the area, it would be ironic for Barrett to miss this ruling.
It is reminiscent of Justice Ketanji Brown Jackson’s recusal in the Harvard affirmative action case due to her close ties to that institution. However, for Jackson, it was immaterial since she was allowed to vote in the sister case involving the University of North Carolina.
The case will be argued in April.
Here is the lower court decision: St. Isidore Opinion
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