The Catholic school at the heart of what may become the most consequential court decision regarding American public education in decades is named for the patron saint of the internet, and takes that mission seriously. St. Isidore of Seville Catholic Virtual School does not have a building, or classrooms, or a cafeteria, or any of the expected physical trappings of a school.
It’s all online. It’s unabashedly religious. And it wants to be treated like any other charter school in Oklahoma—that is, funded by taxpayers, even though it will be operated by the local archdiocese.
St. Isidore’s quest for public recognition and financial support made its way to oral arguments before the U.S. Supreme Court on April 30, in a case, St. Isidore Catholic Virtual School v. Drummond, that could have far-reaching implications for public education—for the very definition of a public school and who gets to have one. Along with a companion case, this dispute also will have a great deal to say about the extent of public support of religion permitted under the First Amendment.
There’s another, broader constitutional matter underlying this case and others like it that are winding their way through the high court in the Chief Justice John Roberts era. Under some of his most recent, more liberal predecessors, the Court envisioned itself as a protector of minority rights, religious and otherwise. Now it is increasingly positioning itself as the protector of majority rights, religious and otherwise.
“The central fact of the Roberts court is its overwhelming concern for the rights of the powerful,” Garrett Epps, a legal scholar and writer, said in a phone interview. “The court identifies with power in any context—economic, religious, etc.”
This project has been years in the making—indeed, Epps himself wrote about the trend more than a decade ago—but it has gained particular saliency with the ascendence of a majority of justices who identify as conservative Christians, including five of the six Catholics and one of the two Protestants. (The only non-Christian on the court now is Elena Kagan, who is Jewish.)
In a fascinating and convincing study, law professors Lee Epstein and Eric A. Posner used a detailed statistical analysis to show how the Roberts court represents, in their words, “a sharp break” from earlier courts when it comes to rulings on religion. The court, they wrote, “has ruled in favor of religious organizations far more frequently than its predecessors—over 83% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations.”
Examining every decision regarding religion and the First Amendment from 1953 to 2020, they found that the pro–mainstream Christian side won 44 percent of the cases in the Warren Court, 52 percent in the Burger Court, 57 percent in the Rehnquist Court, and 80 percent in the Roberts Court. Notably, one case in which the Roberts Court sided against protecting religion was one in which Muslims were harmed.
The Court envisioned itself as a protector of minority rights, religious and otherwise. Now it is increasingly positioning itself as the protector of majority rights, religious and otherwise.
This shift in jurisprudence captures the dual nature of the First Amendment when it comes to religion. The amendment does two things: the Establishment Clause prohibits the government from making laws establishing a religion, while the Free Exercise Clause prevents the government from prohibiting the free exercise of religion.
In other words, Americans are supposed to enjoy freedom of religion, and freedom from religion. But these two commands can be in conflict with each other.
For decades, the Supreme Court relied on the Establishment Clause to prevent the encroachment of religion on public life. The 1971 Lemon case, for example, stipulated that to comply with the Establishment Clause, a law must have a secular legislative purpose, can neither advance nor inhibit religion, and mustn’t foster excessive government entanglement with religion.
Over time, the balance has shifted, and the Roberts Court has weakened the Establishment Clause; in so doing, it is reframing the definition of religious liberty to elevate freedom of at the expense of freedom from. Consider the 2022 decision in Kennedy v. Bremerton School District, in which the court said that a high school football coach could lead public prayers after his team’s games. Here, the coach’s right to express his devoutly Christian faith at the 50-yard line was more worthy of protection than, say, the right of a (theoretical) Jewish football player who might have felt coerced into praying.
This reliance on the primacy of the Free Exercise Clause “has come surging back in the Roberts Court,” wrote Christopher C. Lund, professor of law at Wayne State University Law School. “But it has come surging back only for some.”
That’s because the clause contains its own tensions, open to interpretation. Is “free exercise” a right only for individuals or groups marginalized from the mainstream, powerless and thus worthy of protection? Or does it also include organized religious groups, even if those groups represent the mainstream, demographic majority?
This dynamic is on full display in the case regarding the St. Isidore of Seville school. Oklahoma’s state attorney general, Republican Gentner Drummond, said that sanctioning and funding a religious public charter school would violate the Establishment Clause and his state constitution’s ban on spending public money to support religious instruction.
But the school, and the justices who, to judge from oral arguments, seem to support it, rely on the Free Exercise Clause to insist that to exclude it from the public system amounts to “rank discrimination against religion,” in the words of Justice Brett M. Kavanaugh during the oral argument.
“All the religious school is saying is, ‘Don’t exclude us on account of our religion,’” he said, adding: “You can’t treat religious people and religious institutions and religious speech as second class in the United States.”
Here the justice was reflecting the neutrality theory, prominent on the right, that the government should not favor one religion over others, or treat religious institutions differently from secular ones. But he’s saying something more. Kavanaugh and his compatriots see religious believers—especially if they are conservative Catholics and Protestants—as a religious minority, regardless of demographics. Their views on issues such as sexual identity and morality appear to them to be out of step with mainstream culture. Justice Samuel Alito, in particular, has loudly decried what he sees as the disdain for religion and the persecution of devout Christians.
This posture is not necessarily born out by the survey data. The United States population remains predominantly Christian, by a huge margin. The latest Religious Landscape Study by the Pew Research Center shows that 62 percent of Americans identify as Christian; only 7 percent identify with other religions.
And even if some of those Christians believed they were in the cultural, if not religious, minority, without power or protection, ignored and even reviled, that argument is belied, some might argue, by the current political structure in Washington, with the majority of Supreme Court justices, the Speaker of the House, the vice president, and, he claims, the president all religious conservatives.
The Office of Faith-Based and Community Initiatives created in the George W. Bush administration is now, in Donald Trump’s reign, simply called the White House Faith Office, and is led by a controversial Christian fundamentalist preacher. Trump’s just-announced appointments to his Religious Liberty Commission are mostly Christian fundamentalists, joined by one conservative Orthodox rabbi.
Nonetheless, although Christians in America today have widespread political power along with their overwhelming demographic numbers, many of the justices seem to still consider them a religious minority deserving of legal protection. This doctrinal shift can come at the expense of smaller, much less powerful religious groups who lack the wherewithal to bring their own claims to the high court.
Indeed, in a dissent on a related case in 2022, then-justice Stephen G. Breyer voiced this concern, writing: “Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education.”
And, he warned, taxpayers “may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree.”
Elana Kagan echoed that point during last month’s oral argument in the St. Isidore case, warning that, by favoring a Catholic charter school with public monies, the state of Oklahoma could appear to be doing so at the expense of “religions that seem peculiar to many eyes, but are deeply felt.”
It is just those “peculiar” religions that prior Supreme Courts sought to protect, just as they used the law to protect other minorities, however defined, from the will and power of the majority. That is why the St. Isidore case is so important. It is why the future of just this one online school could determine whether a central guarantor of pluralism in educational and religious institutions across the land has a prayer of continuing to stand.