2025 has shaped up to be a banner year for cases regarding religion before the Supreme Court. In addition to Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission and Mahmoud v. Taylor, which I have written about in previous blog posts, the Court also recently heard oral arguments in St. Isidore of Seville Catholic Virtual School v. Drummond.
In St. Isidore,the Court evaluated the question of whether a Catholic diocese could operate a charter school in Oklahoma.[1] This question triggered both religion clauses in the First Amendment. The free exercise clause was implicated because of the Oklahoma Supreme Court’s denial of the charter based on religion, and the establishment clause was relevant because this was the basis for the lower court’s decision to revoke the Catholic school’s charter.
The case began after the Archdiocese of Oklahoma City and the Diocese of Tulsa applied to Oklahoma’s Charter School Board to create a charter school, St. Isidore. The Charter School Board voted to approve a charter for St. Isidore on June 5, 2023, and a contract between the state and the school was subsequently executed. The Oklahoma Attorney General then sought a “writ of mandamus” from the Oklahoma Court requiring that the Oklahoma School Board to rescind the contract.
The Oklahoma Supreme Court held that the contract between the state and the school violated establishment clause of both the federal and state constitutions, in addition to the Oklahoma Act authorizing the creation of charter schools.[2] In so holding, the Oklahoma Court reasoned that
“Under Oklahoma law, a charter school is a public school. As such, a charter school must be nonsectarian. However, St. Isidore will evangelize the Catholic faith as part of its school curriculum while sponsored by the State . . . St. Isidore cannot justify its creation by invoking Free Exercise rights as a religious entity. St. Isidore came into existence through its charter with the State and will function as a component of the State’s public school system.”[3]
Because of the nature of the school’s creation, in other words—coming into existence because of a contract with the state—the charter school fell under the establishment clause’s constraints on state action; the religious quality of the education planned by St. Isidore meant that the charter school violated the establishment clause.
St. Isidore appealed the Oklahoma court’s decision, and the U.S. Supreme Court granted certiorari. In oral argument, the Justices line of questioning was directed at how to classify the case.[4] Was it primarily about the exclusion from generally available state funds based on religion, which is prohibited by the free exercise clause,[5] or rather was it about the prohibited entanglement of the state with religion? A decision on by the court on St. Isidore is expected sometime this summer.
The Court’s treatment of the First Amendment’s religion clauses has developed considerably over the past several years, and St. Isidore will certainly continue this trend. At Dalton & Tomich, we are following these changes with closely and with special attention as to how they may affect our clients.
[2] Drummond ex rel. State v. Oklahoma Statewide Virtual Charter Sch. Bd., 2024 OK 53, ¶ 8, 558 P.3d 1, 7, cert. granted sub nom. Oklahoma Statewide Charter Sch. Bd. v. Drummond, 145 S. Ct. 1134, 220 L. Ed. 2d 428 (2025), and cert. granted sub nom. St. Isidore of Seville Cath. Virtual Sch. v. Drummond ex rel. Oklahoma, 145 S. Ct. 1134, 220 L. Ed. 2d 428 (2025).
[3] Id. at ¶ 45, 558.
[5] See, e.g., Carson v. Makin, 596 U.S. 767, 142 S. Ct. 1987, 213 L. Ed. 2d 286 (2022).
