The Supreme Court is taking a wrecking ball to the wall between church and state

By | August 13, 2023

Ian Millhiser writes:

Last June, a previously obscure Oklahoma state board voted to allow two Roman Catholic dioceses to operate a charter school in that state. Lawyers from several civil rights organizations, including the ACLU, responded just over a month later with a lawsuit alleging that this state-funded religious school violates the state constitution.

This challenge to the religious charter school, known as St. Isidore of Seville Catholic Virtual School, should be a slam-dunk — at least assuming that the allegations in the lawsuit are correct.

Charter schools are public entities funded by state tax revenue. Among other things, the complaint points to a provision of the Oklahoma Constitution which provides that public education funds may not be “used for any other purpose than the support and maintenance of common schools for the equal benefit of all the people of the State.” And several school policies described in the complaint indicate that St. Isidore does not intend to operate for the equal benefit of all students.

According to the lawsuit, the Archdiocese of Oklahoma City, one of the two dioceses that plans to operate this school, has a policy of expelling students who “intentionally or knowingly” express “disagreement with Catholic faith and morals.” This includes a rule that “‘advocating for, or expressing same-sex attractions … is not permitted’ for students,” and also a rule providing that a student who “reject[s] his or her own body” by beginning a gender transition “will be ‘choosing not to remain enrolled.’”

Yet the most striking thing about this legal complaint is what it does not say. The lawsuit states explicitly that “the plaintiffs’ claims for relief are brought solely under the state constitution, state statutes, and state regulations.” It does not even mention the federal Constitution’s First Amendment, with its prohibition on laws “respecting an establishment of religion.” Before a series of recent Supreme Court decisions carved up this establishment clause, a lawyer challenging government funding of religion almost certainly would have raised some claim under this clause. [Continue reading…]

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