Oklahoma’s supreme court will hear arguments this week for a case that is paving a new frontier in a longstanding debate about the First Amendment’s free exercise and establishment clauses. 

Oral arguments are set for Tuesday morning after the state’s attorney general, Gentner Drummond, filed a lawsuit in October against the Oklahoma Statewide Virtual Charter School Board for approving a first-of-its-kind Catholic public charter school. 

St. Isidore of Seville Catholic Virtual School — which declined to comment, citing pending litigation — is set to open later this year and is accepting student applications despite the legal dispute.

While the school is open to K-12 students of any faith background in the state, its website notes educational offerings will be “steeped in the richness of the Catholic Intellectual Tradition.” Its namesake, St. Isidore, is recognized by the Catholic Church as the patron saint of the internet and is hailed as the “schoolmaster of the Middle Ages.” 

The state’s virtual charter school board is represented by the Alliance Defending Freedom, which says the board has a right to allow religious groups to receive public funding and that it is part of its constitutional duty to treat groups equally. 

The group is hoping that the state supreme court will “protect educational choices” for families, the Alliance Defending Freedom’s senior counsel, Phil Sechler, tells the Sun.

“Oklahoma parents and children are better off with more choices, not fewer,” he says. “Both the U.S. Constitution and Oklahoma law protect St. Isidore’s freedom to operate according to its faith.” 

In a legal brief in support of the board, attorneys argue that “protecting religious liberty requires placing religious organizations on equal footing with their secular counterparts and not treating religious organizations with hostility.”

The brief urges the court to ensure that Oklahoma remains “neutral” in its relations with religious and nonreligious groups.

“The Board here has acted with neutrality toward religion, as demanded by the U.S. Constitution,” the filing reads. “Petitioner’s request that this Court cancel the contract because of St. Isidore’s religious character signals religious hostility.” 

The school does not violate the establishment clause, the brief adds, because “St. Isidore will receive funds from the State only if parents choose to enroll their children in the school.” It notes that the school is “merely one school choice among many for parents in the State to consider.” 

Several U.S. Supreme Court cases in recent years have opened the door to a debate about religious charter schools and their constitutionality. In Espinoza v. Montana Department of Revenue in 2020, the court ruled that while states do not have to fund private school scholarships, if they do, they cannot discriminate against religious schools. That case expanded on a 2017 decision in Trinity Lutheran Church of Columbia v. Comer, which declared that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion.” 

More recently, in June 2022, the Supreme Court in Carson v. Makin ruled that excluding religious schools from a private school choice program is a violation of the First Amendment’s religious protections.

Mr. Drummond’s office declined to comment, but he has previously promised to take the case all the way to the U.S. Supreme Court if it comes to it. 

Calling Oklahoma a “testing ground in a deeply troubling effort to reshape public education in America,” Mr. Drummond wrote a letter to the Wall Street Journal last year defending his position. 

“That the school is Catholic isn’t the issue,” he wrote, adding that if it is allowed to open it could open the door to a host of other types of schools. “The Satanic Temple has already indicated it may apply to sponsor a school,” he said, adding that if the courts allow the Catholic charter school to open, “the damage to the ideal of religious liberty will be irreversible.”