Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma

Nos. 24-394, 24-396

In the Supreme Court of the United States

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, ET AL.,

Petitioners,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

Respondent.

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

v.

GENTNER DRUMMOND, ATTORNEY GENERAL OF

OKLAHOMA, EX REL. OKLAHOMA,

Respondent.

On Writs of Certiorari to the Supreme Court of Oklahoma

BRIEF OF BAPTIST JOINT COMMITTEE FOR RELIGIOUS

LIBERTY; CENTRAL CONFERENCE OF AMERICAN

RABBIS; COOPERATING BAPTIST FELLOWSHIP OF

OKLAHOMA; COOPERATIVE BAPTIST FELLOWSHIP;

EVANGELICAL LUTHERAN CHURCH IN AMERICA;

GENERAL SYNOD OF THE UNITED CHURCH OF CHRIST;

INTERFAITH ALLIANCE; THE MOST REVEREND SEAN W.

ROWE, PRESIDING BISHOP OF THE EPISCOPAL CHURCH;

MUSLIM PUBLIC AFFAIRS COUNCIL; NATIONAL COUNCIL

OF JEWISH WOMEN; AND UNION FOR REFORM JUDAISM

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

THAILA K. SUNDARESAN

DAVID M. GOSSETT

Davis Wright Tremaine LLP

Counsel of Record

50 California St., Ste. 2300

CHAVA BRANDRISS

San Francisco, CA 94111

Davis Wright Tremaine LLP

1301 K St. NW, Ste. 500-E

BIANCA G. CHAMUSCO

Davis Wright Tremaine LLP Washington, DC 20005

(202) 973-4200

920 5th Ave., Ste. 3300

davidgossett@dwt.com

Seattle, WA 98104

Counsel for Amici Curiae

Additional counsel on inside cover

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

K. HOLLYN HOLLMAN

Baptist Joint Committee for

Religious Liberty

200 Maryland Ave NE

Washington, DC 20002

ROBERT W. TUTTLE

Evangelical Lutheran

Church in America

2000 H Street NW

Washington, DC 20051

HEATHER E. KIMMEL

United Church of Christ

1300 E. 9th Street

Suite 1100

Cleveland, OH 44114

THOMAS A. CUNNIFF

PAUL K. IRWIN

Evangelical Lutheran

Church in America

8765 W. Higgins Road

Chicago, IL 60631

Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTERESTS OF THE AMICI CURIAE .....................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................4

I.

Petitioners’ Effort To Require The State To

Establish And Fund A Religious School

Defies Essential Non-Establishment Norms

Rooted In History. ................................................4

A. To safeguard religious liberty, the

Framers opposed state alignment with

any particular faith. .......................................4

B. Nineteenth-century adoption of common

schooling generally reflected the

Framers’ opposition to state sponsorship

of religion. .......................................................7

C. This Court has consistently prohibited

direct government funding of religious

instruction. ................................................... 14

D. Petitioners misread Kennedy. ...................... 18

II. The Establishment Clause Categorically

Bars Direct Government Funding Of

Religious Charter Schools. ................................. 23

A. If St. Isidore is classified as a public

school, funding it through the charter

school program violates the

Establishment Clause. ................................. 23

ii

TABLE OF CONTENTS--continued

Page

B. If St. Isidore is classified as a private

institution, funding it nonetheless

contravenes the Constitution. ..................... 26

CONCLUSION .......................................................... 33

APPENDIX: DESCRIPTION OF AMICI ................. 1a

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Agostini v. Felton,

521 U.S. 203 (1997)............................................. 17

Am. Legion v. Am. Humanist Ass’n,

588 U.S. 29 (2019) .................................. 19, 20, 21

Bd. of Educ. of Kiryas Joel Vill.

Sch. Dist. v. Grumet,

512 U.S. 687 (1994)............................................. 31

Bowen v. Kendrick,

487 U.S. 589 (1988)............................................. 17

Bradfield v. Roberts,

175 U.S. 291 (1899)............................................. 14

Carson v. Makin,

596 U.S. 767 (2022)................................. 28, 29, 30

Edwards v. Aguillard,

482 U.S. 578 (1987)............................................. 16

Engel v. Vitale,

370 U.S. 421 (1962)....................................... 15, 23

Espinoza v. Montana Dep’t of Revenue,

591 U.S. 464 (2020)................................. 28, 29, 30

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) .................... 5, 13, 14, 15, 16, 20

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012)....................................... 22, 25

Kedroff v. St. Nicholas Cathedral,

344 U.S. 94 (1952) .............................................. 21

iv

TABLE OF AUTHORITIES--continued

Page(s)

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 50 (2022) .................................. 12, 18, 20

Larkin v. Grendel’s Den, Inc.,

459 U.S. 116 (1982)............................................. 31

Larson v. Valente,

456 U.S. 228 (1982)............................................. 30

Lee v. Weisman,

505 U.S. 577 (1992)................................. 19, 21, 24

Lemon v. Kurtzman,

403 U.S. 602 (1971)........................... 18, 19, 20, 21

Levitt v. Comm. for Pub. Educ.

& Religious Liberty,

413 U.S. 472 (1973)............................................. 23

Lynch v. Donnelly,

465 U.S. 668 (1984)............................................. 24

Marsh v. Chambers,

463 U.S. 783 (1983)............................................. 24

McCollum v. Bd. of Educ. of Sch.

Dist. No. 71,

333 U.S. 203 (1948)........................... 15, 16, 20, 23

NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979)............................................. 25

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

591 U.S. 732 (2020)....................................... 22, 25

Rosenberger v. Rector & Visitors of Univ. of Va.,

515 U.S. 819 (1995)....................................... 17, 18

v

TABLE OF AUTHORITIES--continued

Page(s)

Sch. Dist. of Abington Twp. v. Schempp,

374 U.S. 203 (1963)................................. 15, 16, 21

Serbian E. Orthodox Diocese v. Milivojevich,

426 U.S. 696 (1976)....................................... 21, 22

Stone v. Graham,

449 U.S. 39 (1980) .............................................. 16

Thomas v. Rev. Bd.,

450 U.S. 707 (1981)............................................. 31

Tilton v. Richardson,

403 U.S. 672 (1971)................................. 16, 17, 20

Town of Greece v. Galloway,

572 U.S. 565 (2014)....................................... 19, 20

Trinity Lutheran Church v. Comer,

582 U.S. 449 (2017)................................. 28, 29, 30

Van Orden v. Perry,

545 U.S. 677 (2005)............................................. 24

Walz v. Tax Comm'n of New York,

397 U.S. 664 (1970)............................................. 21

Watson v. Jones,

80 U.S. (13 Wall.) 679 (1871) ............................. 21

Witters v. Washington Dep't of

Servs. for the Blind,

474 U.S. 481 (1986)................................. 27, 28, 29

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)................................. 27, 28, 29

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ............... 2, 3, 6, 8, 12, 16, 21, 22

vi

TABLE OF AUTHORITIES--continued

Page(s)

OTHER AUTHORITIES

Joe Biden, Remarks by President Biden

(Oct. 25, 2024),

https://perma.cc/DER9-DNXT ............................ 10

Thomas J. Curry, The First Freedoms:

Church and State in America to the

Passage of the First Amendment (1986)............. 13

Eve L. Ewing, Original Sins:

The (Mis)education of Black and Native

Children and the Construction of American

Racism (2025) ................................................. 8, 11

Steven K. Green, Private School Vouchers

and the Confusion Over “Direct” Aid,

10 Geo. Mason U. Civ. Rts. L.J. 47 (2000) ... 13, 14

Steven K. Green, The Second Disestablishment:

Church and State in Nineteenth-Century

America (2010) ...................................................... 7

Steven K. Green, Separating Church

and State: A History (2022) .................... 6, 7, 8, 13

Patrick Henry, A Bill Establishing a Provision for

Teachers of the Christian Religion (1784),

reprinted in Everson v. Bd. of Educ.,

330 U.S. 1 (1947) .................................................. 5

Thomas Jefferson, The Virginia Statute for

Establishing Religious Freedom (1786), reprinted

in Founding the Republic: A Documentary

History (John J. Patrick ed., 1995) .................. 5, 6

vii

TABLE OF AUTHORITIES--continued

Page(s)

Carl F. Kaestle, Pillars of the Republic:

Common Schools and American

Society 1780-1860 (1983) ............................ 7, 8, 13

Douglas Laycock, “Nonpreferential” Aid

to Religion: A False Claim About Original

Intent, 27 Wm. & Mary L. Rev. 875 (1986).... 6, 12

James Madison, A Memorial and Remonstrance

Against Religious Assessments (1785),

reprinted in Selected Writings of James

Madison (Ralph Ketcham ed., 2006)................ 5, 6

Robert C. Morris, Reading, ’Riting, and

Reconstruction: The Education of Freedmen

in the South, 1861-1870 (2010)........................... 10

Bryan Newland, Bureau of Indian Affairs,

U.S. Dep’t of Interior, Federal Indian

Boarding School Initiative Investigative

Report (May 2022),

https://perma.cc/2ZLC-AZFL ................................ 9

Bryan Newland, Bureau of Indian Affairs,

U.S. Dep’t of Interior, Federal Indian

Boarding School Initiative Investigative

Report Vol. II (July 2024),

https://perma.cc/VYP4-D63J ................................ 9

Peter J. Smith & Robert W. Tuttle,

Establishment Clause Mythology, __ Case W.

Rsrv. L. Rev. __ (forthcoming 2025),

https://ssrn.com/abstract=4576120 .............. 12, 13

Henry Lee Swint, The Northern Teacher in the

South, 1862–1870 (1967) .................................... 10

viii

TABLE OF AUTHORITIES--continued

Page(s)

Rebecca Tsosie, Accountability for the Harms of

Indigenous Boarding Schools: The Challenge of

“Healing the Persisting Wounds” of “Historic

Injustice,” 52 Sw. L. Rev. 20 (2023) ..................... 9

1

INTERESTS OF THE AMICI CURIAE

Amici—the Baptist Joint Committee for Religious

Liberty; Central Conference of American Rabbis;

Cooperating Baptist Fellowship of Oklahoma;

Cooperative

Baptist

Fellowship;

Evangelical

Lutheran Church in America; General Synod of the

United Church of Christ; Interfaith Alliance; The

Most Reverend Sean W. Rowe, Presiding Bishop of

The Episcopal Church; Muslim Public Affairs Council;

National Council of Jewish Women; and Union for

Reform Judaism—are religious organizations and

other organizations grounded in religious experience

whose members believe that religious freedom

depends on non-establishment.1 A full description of

the amici is contained in the Appendix.

Though they represent different faith traditions,

amici all believe that government sponsorship of

religion endangers, rather than enhances, religious

liberty. In amici’s view, religion flourishes best when

it is supported voluntarily and privately—not

sponsored by the state with public funds.

Amici thus have a strong interest in preserving

the constitutional principle that religious and civil

institutions must remain distinct. That structural

boundary—rooted in the Founding and reaffirmed

across generations—safeguards both the integrity of

religious communities and the legitimacy of the state.

Amici are especially concerned about the risks

that accompany government selection and funding of

religious schools. History shows that government

1 No counsel for a party authored this brief in whole or part, and

no person or entity other than amici and their counsel made a

monetary contribution to the preparation or submission of this

brief.

2

sponsorship of religious education inevitably results

in promotion of particular religious doctrines—

placing minority faiths at a disadvantage and

betraying the constitutional promise of religious

equality. When funding decisions turn on theology or

religious affiliation and lack neutral, judicially

manageable standards, disfavored religions are likely

to be excluded or subordinated.

Amici are equally troubled by the fusion of

religious instruction with civil authority. When a

religious institution is tasked with performing a core

governmental function—such as operating a publicly

funded school—there is a serious risk that its religious

mission will be experienced as state-sponsored, or

that its theology will be presented as civic obligation.

That is precisely the sort of church-state

entanglement the Establishment Clause forbids.

Amici therefore oppose Petitioners’ effort to

require the government to fund religious education

through the charter school system. A ruling in

Petitioners’ favor would erode the constitutional

separation essential to preserving religious liberty for

people of all faiths.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court should affirm the Oklahoma Supreme

Court’s decision holding unconstitutional the

Oklahoma Statewide Charter School Board’s

establishment, operation, and financing of religious

charter schools.

Though Petitioners insist the Court must

determine whether the charter school at issue is a

“state actor,” that is, in the end, irrelevant to the

actual question presented here: Whether the First

3

Amendment requires the State of Oklahoma to

establish, fund and oversee religious public charter

schools because it establishes, funds, and oversees

nonreligious

public

charter

schools.

The

Constitution’s answer—rooted in text, history, and

precedent—is no. Not only does the Constitution not

require this; it does not permit it. And no matter what

label is applied to St. Isidore—public, private,

charter—the answer is the same.

Nor is this a Free Exercise case, despite

Petitioners’ styling. Oklahoma’s decision not to

establish the nation’s first religious public charter

school does not “prohibit the free exercise” of the

Catholic (or any other) faith. Oklahoma has not

“forced” any believer to choose between freely

practicing their religion and receiving the benefits of

state-provided free education. Oklahoma has not

discriminated against any religion. Rather, Oklahoma

rightly followed the Constitution’s mandate not to

“make [a] law respecting an establishment of

religion.” U.S. Const. amend. I.

Upholding Petitioners’ religious charter school

scheme would mark a radical break from the

Establishment Clause principles this Court has

embraced for more than 75 years. This Court has

always maintained a firm constitutional boundary:

Government must not adopt an “official” religious

voice or sponsor religious indoctrination. That

principle reflects the Founders’ conviction that

religious belief must be voluntary and that failing to

maintain a distinction between the roles of

government and religion threatens both religion and

the state.

Petitioners would require Oklahoma to fund a

school whose core mission is religious education—a

4

school that will teach Catholic doctrine, require

religious observance, and condition employment on

adherence to faith tenets. This is not, as Petitioners

argue, a neutral benefit program with indirect aid

flowing through private choice. It is direct state

sponsorship of a specific religion. This would set a

dangerous precedent and depart sharply from

foundational

constitutional

principles.

Those

principles—designed to ensure the state does not

favor any particular faith tradition—guarantee vital

religious liberty protections that benefit religious

institutions and adherents of all faiths (or none).

The state may fund roads and libraries, police and

parks. But it may not fund religious schools.

The Court should affirm.

ARGUMENT

I. Petitioners’ Effort To Require The State To

Establish And Fund A Religious School

Defies Essential Non-Establishment Norms

Rooted In History.

The Constitution draws a firm line: The State may

not intertwine its authority with religion. Petitioners

now ask the Court to erase that line—inviting, for the

first time in our Nation’s history, direct public funding

for religious instruction in a state-established school.

The Establishment Clause forbids it.

A. To safeguard religious liberty, the

Framers opposed state alignment with

any particular faith.

The principle that church and government should

occupy distinct spheres has its roots in the earliest

days of the Republic.

5

The Virginia story of disestablishment is better

known than most—and for good reason. It informed

this Court’s early Establishment Clause decision in

Everson v. Board of Education, 330 U.S. 1 (1947), and

it crystallized a core principle: Civil government may

not use its power to direct or enforce religious belief.

The story goes like this.

Nearly 250 years ago, Patrick Henry introduced

in the Virginia legislature an assessment bill that

would have taxed citizens to pay a salary to “teachers

of the Christian religion.” Patrick Henry, A Bill

Establishing a Provision for Teachers of the Christian

Religion (1784), reprinted in Everson, 330 U.S. at 7274. James Madison opposed it. In his Memorial and

Remonstrance, Madison advanced a vision of religious

liberty defined by separation—between church and

state, belief and power, private conviction and public

obligation. In his view, the “Religion * * * of every

man must be left to the conviction and conscience of

every man.” James Madison, A Memorial and

Remonstrance Against Religious Assessments ¶ 1

(1785), reprinted in Selected Writings of James

Madison 21-27 (Ralph Ketcham ed., 2006).

Thomas Jefferson’s alternative to Henry’s bill—

which Madison supported—took the same view. It

condemned as “sinful and tyrannical” compelling

anyone “to furnish contributions of money for the

propagation of opinions which he disbelieves.”

Thomas Jefferson, The Virginia Statute for

Establishing Religious Freedom 95 (1786), reprinted

in Founding the Republic: A Documentary History

(John J. Patrick ed., 1995). To require a taxpayer “to

support this or that teacher,” even “of his own

religious persuasion,” was, in Jefferson’s view, to

deprive him of the “comfortable liberty” of choosing

6

the teacher his own faith would have him support.

Ibid.

Madison also warned that Henry’s bill

endangered religion itself. Permitting “the Civil

Magistrate” to “employ Religion as an engine of Civil

policy,” he wrote, threatened a dangerous arrogation

of authority over the divine. Madison, Memorial ¶ 5.

The state, he cautioned, is not “a competent Judge of

Religious Truth.” Ibid.

That vision—of a government restrained not just

to protect conscience, but to preserve faith from state

distortion—prevailed. Henry’s bill was rejected;

Jefferson’s Virginia Statute enacted. And the latter’s

promise—“no man shall be compelled to frequent or

support any religious worship, place, or ministry

whatsoever”—would echo in the constitutional

tradition that followed. See Douglas Laycock,

“Nonpreferential” Aid to Religion: A False Claim

About Original Intent, 27 Wm. & Mary L. Rev. 875,

899 (1986).

And that vision was not Virginia’s alone.

Pennsylvania’s

1776

Constitution

prohibited

compulsory support for any religious ministry and

declared that “no man can of right be compelled to

attend, erect, or support any place of worship.” Steven

K. Green, Separating Church and State: A History 4950 (2022). Steeped in Quaker ideals of liberty of

conscience, Pennsylvania’s framers understood that

government sponsorship of religion threatened both

liberty of conscience and integrity of faith. Ibid.

At the time of the First Amendment’s ratification

in 1791, the states reflected a range of views about the

church-state relationship. Id. at 50-64. But by

century’s end, many had followed the path charted by

7

Virginia and Pennsylvania—prohibiting public

support for religious ministries and schools. Id. at 7677. To be sure, disestablishment unfolded more

gradually in some areas. Yet even in New England,

where religious assessments lingered, dissenting

Protestant groups were often permitted to redirect

their contributions to churches of their choosing—a

tacit recognition that government may not exercise

authority in matters of faith. Id. at 92-94. By 1833,

when Massachusetts became the final state to end

public religious funding, a national consensus had

taken hold. Id. at 95-97. The arc was clear: The

trajectory bent toward separation. And the line

between church and state—first sketched at the

Founding—had, at last, been drawn.

B. Nineteenth-century adoption of common

schooling generally reflected the Framers’

opposition to state sponsorship of

religion.

1. Common schools did not exist in the early days

of the Nation; publicly funded common schools existed

in only a few urban centers and a handful of rural

communities. See Carl F. Kaestle, Pillars of the

Republic: Common Schools and American Society

1780-1860 62-81, 104-135 (1983). By the time they

became widespread in the latter half of the 19th

century, however, a core principle had taken root:

publicly funded education should not include religious

indoctrination.

Between 1830 and 1868, the common school

movement

dramatically

reshaped

American

education. Ibid. These new public schools were styled

“nonsectarian”—a term that, in practice, meant they

did not endorse any single Protestant denomination,

but often included Bible reading without commentary.

8

Steven K. Green, The Second Disestablishment:

Church and State in Nineteenth-Century America 256

(2010). The idea, their advocates claimed, was to

provide a baseline civic education while leaving

specific religious instruction to families and faith

communities after hours. Green, Separating at 125127; Kaestle, Pillars at 13-29, 98. The principle had

begun to take hold by then that the classroom should

serve civic education, not religious formation, and the

state should fund not institutions that teach the creed

of a particular faith, but those that advance the civicfocused nonsectarianism of the common schools.

Green, Separating at 125.

2. Petitioners ignore this history even as they

claim fidelity to historical practice. They cite scattered

episodes of government support for religious schools—

most notably the Indian missionary boarding schools

and the Freedmen’s Bureau schools for formerly

enslaved children—as exemplifying a benign tradition

of “early federal funding for religious schools” that

purportedly supports their position. Board. Br. 4-6.

But those episodes are no constitutional model. Quite

the opposite: Petitioners ask this Court to reorient

First Amendment doctrine around practices rooted in

what sociologist Eve L. Ewing has called our country’s

twin “original sins.” See Eve L. Ewing, Original Sins:

The (Mis)education of Black and Native Children and

the Construction of American Racism 4 (2025). In any

event, those episodes were exceptions to, not

exemplars of, the constitutional norms that would

come to define Establishment Clause jurisprudence—

norms grounded in voluntarism, religious liberty, and

the structural separation of church and state.

Few episodes in our history cut more sharply

against this Nation’s values—including the values the

9

Establishment Clause protects—than the Indian

boarding school system. In reality, these schools were

central to a broader federal project of territorial

dispossession and forced assimilation, including of

religious belief. Bryan Newland, Bureau of Indian

Affairs, U.S. Dep’t of Interior, Federal Indian

Boarding School Initiative Investigative Report 7

(May 2022), https://perma.cc/2ZLC-AZFL.

In this system, religious organizations secured

“civilization” contracts from the federal government to

“educate” Native American children in residential

schools. Rebecca Tsosie, Accountability for the Harms

of Indigenous Boarding Schools: The Challenge of

“Healing the Persisting Wounds” of “Historic

Injustice,” 52 Sw. L. Rev. 20, 20-21 (2023). Native

children were forcibly removed from their families

and sent to the schools, where they were

systematically isolated from their languages,

cultures, and communities. Many suffered severe

abuse at the hands of those charged with their

“education.” Id. at 21, 24-25. Some died of disease,

abuse, or neglect, and were buried in unmarked

graves far from home. Id. at 25; see also Newland,

Investigative Report at 86.

Religious instruction was a key instrument of this

coercive project. The Department of the Interior has

confirmed that the “Federal Indian boarding school

system deployed systematic militarized and identityalteration methodologies” to forcibly assimilate

Native children, including by stripping them of their

Native “languages, religions, and cultural practices.”

Newland, Investigative Report at 7. Children were

required to attend Christian services and were

punished for practicing their own spiritual traditions.

Bryan Newland, Bureau of Indian Affairs, U.S. Dep’t

10

of Interior, Federal Indian Boarding School Initiative

Investigative Report Vol. II 46-49, 59, 87-89 (July

2024),

https://perma.cc/VYP4-D63J

(recounting

religious abuses at mission-run schools). In 2024, the

President formally apologized for the federal

government’s role in the Indian boarding school

system, calling it “a significant mark of shame, a blot

on American history.”2

Nor do the Freedmen’s Bureau schools offer a

model worthy of emulation. Established in 1865 to

assist formerly enslaved people in the aftermath of

the Civil War, the Bureau supported a range of

educational efforts in the South—most staffed by

Northern missionaries. In many cases, these schools

did not merely include religious content—they

imposed it. As Henry Lee Swint documents, Bible

reading and Protestant moral instruction were daily

features of the classroom, embedded in a curriculum

that treated religious conformity as a precondition for

literacy and advancement—and as a tool of social and

political control. Henry Lee Swint, The Northern

Teacher in the South, 1862–1870 35-44, 56-62, 87, 13839 (1967).

Not all educators in these schools were equally

doctrinaire, and many believed sincerely in both the

redemptive power of education and the humanitarian

mission of uplifting formerly enslaved people. But

their project was shaped by a prevailing view of

formerly enslaved people as uncivilized “barbarians”

and the belief that Christianity offered the primary

means of their moral uplift. In these schools, religion

was not merely present in the classroom—it was

Joe Biden, Remarks by President Biden (Oct. 25, 2024),

https://perma.cc/DER9-DNXT.

2

11

deployed in service of a white Protestant ideal that

sought to erase the identity and experience of the

formerly enslaved. See Robert C. Morris, Reading,

’Riting, and Reconstruction: The Education of

Freedmen in the South, 1861-1870 151 (2010).

Drawing on archival records and historical

accounts, Professor Eve Ewing illustrates how white

reformers used the classroom to enforce a vision of

citizenship defined by Christian piety, obedience, and

social deference. Ewing, Original Sins at 58-73. These

schools were built not to liberate, she writes, but to

“reform”—extracting

obedience

and

so-called

Christian respectability as the price of civic belonging.

Id. at 61.

That legacy is not a blueprint. It is a warning.

When the state involves itself in religious

instruction, it transfers public authority to private

religious actors. That delegation alters the role of

education itself: Instruction no longer purports to

cultivate knowledge and respect religious differences,

but to mold conscience according to the dictates of a

particular sect whose teachings conform to

government goals. In the Indian schools, that meant

using religious education to extinguish Native

identity and force assimilation, spiritual and

otherwise. In the Freedmen’s Bureau schools, it

meant conditioning access to literacy, employment,

and civic belonging on conformity to white Protestant

religious tenets. The Establishment Clause bars the

fusion of state power with sectarian authority not

because all religious education is coercive, but because

once the state adopts it as its own, coercion too easily

follows—by structure, if not by design.

12

3. Nor does Petitioners’ appeal to other early

funding practices withstand scrutiny. The argument

rests on a distorted originalism.

Petitioners point out that, before the rise of

common schools, some state and local governments

“sometimes helped shoulder the costs” of education

provided in religious institutions. Board. Br. 4. But

such funding, almost exclusively benefitted

Protestant denominations. Life in pre-Revolutionary

and

18th-century

America

was

religiously

intertwined, yes—but intertwined almost exclusively

with the Protestant faith. Laycock, “Nonpreferential”

Aid, 27 Wm. & Mary L. Rev. at 878; see also Peter J.

Smith & Robert W. Tuttle, Establishment Clause

Mythology, __ Case W. Rsrv. L. Rev. __ (forthcoming

2025), at 63-64.3

These examples do not support Petitioners’ claim

to government funding for their religious school.

Rather, it is Petitioners who urge an “ahistorical

approach,” see Kennedy v. Bremerton School District,

597 U.S. 507, 534 (2022), by suggesting that the

Founders would have embraced a state-funded

Catholic charter school. The Founders’ “historical

practices and understandings,” see id. at 535, simply

would not have contemplated Establishment or Free

Exercise Clauses suited to today’s religiously

pluralistic society because that was not the society in

which they lived. See Laycock, “Nonpreferential” Aid,

27 Wm. & Mary L. Rev. at 878.

4. In any event, these historical anomalies cannot

obscure the broader constitutional trajectory—a

deliberate and consistent move toward separation.

3 https://ssrn.com/abstract=4576120.

13

The movement toward disestablishment began in

the states even prior to ratification of the First

Amendment in 1791, gained broad traction by 1800—

as reflected in the election of Thomas Jefferson—and

was nearly complete by 1820. Green, Separating at

75-77, 90-94. This shift coincided with early efforts to

establish publicly funded “nonsectarian” schools—

meaning, at the time, generically Protestant ones. Id.

at 125-128; Kaestle, Pillars at 13-29.

As Professor Steven Green explains, the 1830s

brought a new generation of educational reformers

who aimed to strip education of its sectarian traces.

Green, Separating at 125-28. Newly adopted

constitutional provisions banning public funding for

religious schools reflected the growing consensus that

education should serve civic, not religious, ends. Id. at

126-28. By the time of widespread common

schooling—and certainly by the ratification of the

Fourteenth Amendment in 1868—state-sponsored

religious education was broadly considered

unconstitutional. See, e.g., Everson, 330 U.S. at 11-13

(discussing the development of nonsectarian public

education and the rejection of taxpayer support for

religion); see also Green, Separating at 130; Smith &

Tuttle, Mythology at 64. Petitioners can point to no

history or tradition of state-operated or state-financed

religious schools after the rise of the common schools,

and certainly none after 1868.

As Professor Thomas Curry notes, “[t]he belief

that government assistance to religion, especially in

the form of taxes, violated religious liberty had a long

history” by the time of constitutional formation.

Thomas J. Curry, The First Freedoms: Church and

State in America to the Passage of the First

Amendment 105-133 (1986). And by the mid-19th

14

century, state courts “uniformly” recognized that

“spending tax dollars on parochial school education

would violate principles of church-state separation.”

Steven K. Green, Private School Vouchers and the

Confusion Over “Direct” Aid, 10 Geo. Mason U. Civ.

Rts. L.J. 47, 51 (2000) (collecting cases). That

consensus, rooted in both history and principle,

remains the law today.

C. This Court has consistently prohibited

direct government funding of religious

instruction.

As this Court’s Religion Clause jurisprudence

developed, it too recognized this core constitutional

prohibition on direct aid to religious activity.

1. This Court has consistently drawn a bright line:

Government may not use public funds to directly

sponsor religious instruction or institutions. In

Bradfield v. Roberts, 175 U.S. 291 (1899), this Court’s

first decision under the Establishment Clause, the

Court upheld a federal grant to construct a hospital

wing operated by a Catholic order—but only because

the hospital was legally incorporated as a

“nonsectarian and secular corporation” with a strictly

medical mission. Id. at 298. The religious affiliation of

its individual staff members, the Court made clear,

did not convert a secular hospital into a religious

institution. Id. at 298-300. The Court distinguished

between government aid to a secular body offering

secular services that happen to be provided by

adherents of a particular faith—which is generally

permissible—and government aid to a religious body

offering religious indoctrination—which is not. Id. at

299.

15

Though the Court addressed few Establishment

Clause cases in the following decades, by mid-century

it had reaffirmed the prohibition against government

funding of religious education. In Everson, the Court

considered whether reimbursing parents for bus

transportation to religious schools in addition to

public schools violated the Establishment Clause. A

divided Court upheld this aid on the ground that it

reflected a public benefit available to all students, but

every Justice agreed on a bedrock principle: “No tax

in any amount, large or small, can be levied to support

any religious activities or institutions, whatever they

may be called, or whatever form they may adopt to

teach or practice religion.” Everson, 330 U.S. at 16.

The very next year, McCollum gave this principle

sharper teeth, striking down a program that allowed

religious instructors to teach in public school

classrooms during “released time” within the school

day. McCollum v. Bd. of Educ. of Sch. Dist. No. 71, 333

U.S. 203 (1948). Drawing directly on Everson’s

prohibition against taxpayer funding of religious

instruction, the Court held that the program

constituted “a utilization of the tax-established and

tax-supported public school system to aid religious

groups to spread their faith”—a clear establishment

problem. Id. at 210.

2. Building on these core principles, the School

Prayer cases reinforced the rule that the government

may neither directly fund nor facilitate religious

teaching, no matter how benign the motive or minimal

the intrusion. In Engel v. Vitale, 370 U.S. 421 (1962),

the Court held that a state-composed prayer, though

brief and non-denominational, was unconstitutional

because the Establishment Clause “must at least

mean” that government may not “compose official

16

prayers” for schoolchildren. Id. at 425. The following

year, in School District of Abington Township v.

Schempp, 374 U.S. 203 (1963), the Court struck down

Bible readings and recitation of the Lord’s Prayer in

public schools. Rejecting assurances that the religious

exercises served a secular educational purpose, the

Court held that—regardless of the state’s asserted

secular intent—the primary and inevitable effect of

these practices was the religious formation of

students. Id. at 210.

The Court again rejected a purportedly secular

justification for state-sponsored religious expression

in Stone v. Graham, 449 U.S. 39 (1980). There, the

Court held unconstitutional a Kentucky statute

requiring the posting of the Ten Commandments in

public school classrooms. The Court looked beyond the

state’s purported secular justification to the “preeminent purpose for posting,” which was “plainly

religious in nature.” Id. at 41. “The Ten

Commandments are undeniably a sacred text in the

Jewish and Christian faiths,” the Court reasoned, and

“no legislative recitation of a supposed secular

purpose can blind us to that fact.” Ibid.

Similarly, in Edwards v. Aguillard, 482 U.S. 578

(1987), the Court invalidated a Louisiana law

requiring that creation science be taught alongside

evolution, reaffirming that “the First Amendment

does not permit the State to require that teaching and

learning must be tailored to the principles or

prohibitions of any religious sect or dogma.” Id. at 591

(citation omitted). Though the state invoked academic

freedom, the Court determined the law’s true aim was

religious: to advance a sectarian doctrine through the

public school system. Ibid.

17

3. This Court’s funding cases also reinforce the

bedrock principles set out in Everson and McCollum.

In Tilton v. Richardson, 403 U.S. 672 (1971), for

example, the Court invalidated a provision in a

federal higher education grant program for the

construction of non-religious school facilities by

religious higher education institutions. The

invalidated provision would have allowed religious

institutions to use the government-funded buildings

for religious instruction after 20 years. The Court

reasoned that the program amounted to government

subsidies for religious education and activity because

the buildings were expected to last far longer than

that. Id. at 683.

Similarly, while the Court in Bowen v. Kendrick,

487 U.S. 589 (1988), upheld a statute that authorized

grants to both religious and non-religious

organizations for abstinence-based teenage sexual

education, the Court stressed that such funding

demands vigilant oversight to ensure funds are spent

in the non-religious manner Congress intended. As

the Court explained, “[t]here is no doubt that the

monitoring of [the] grants is necessary” to ensure

public money is not diverted to religious use. Id. at

615; see also Agostini v. Felton, 521 U.S. 203, 234

(1997) (discussing monitoring requirement).

*****

These cases together mark a constitutional

boundary the Court has never crossed. As Justice

Souter once explained, the irreducible core of the

Establishment Clause is this: “Using public funds for

the direct subsidization of preaching the word is

categorically forbidden.” Rosenberger v. Rector &

Visitors of Univ. of Va., 515 U.S. 819, 868 (1995)

(Souter, J., dissenting). “[I]f the Clause was meant to

18

accomplish nothing else, it was meant to bar this use

of public money.” Id.; see also id. at 840 (Kennedy, J.)

(majority) (affirming that “direct support of a church”

would “of course * * * run contrary to Establishment

Clause concerns dating from the earliest days of the

Republic”); id. at 852 (O’Connor, J., concurring)

(confirming that nothing in Rosenberger “signals the

demise of the funding prohibition in Establishment

Clause jurisprudence”).

That prohibition resolves the core issue in this

case.

D. Petitioners misread Kennedy.

Petitioners rely heavily on Kennedy’s statement

that the Lemon test has been “abandoned.” Kennedy,

597 U.S. at 534; see Lemon v. Kurtzman, 403 U.S. 602

(1971). According to them, Kennedy swept aside the

traditional Establishment Clause framework and

replaced it with an exclusive focus on historical

practice. But that reading overstates Kennedy and

misconstrues the foundations of Establishment

Clause doctrine. Kennedy neither upheld government

funding of religious instruction nor disturbed the

longstanding prohibition against it. The bar on direct

state funding of religious education remains both

doctrinally intact and constitutionally essential.

In fact, Kennedy had nothing to do with

government funding of religion. The issue there was

whether a public school football coach could offer what

the Court characterized as a “personal” prayer after a

game. See 597 U.S. at 515. The Court held that the

coach’s prayer was private religious expression

protected by the Free Exercise and Free Speech

Clauses. Id. at 539-40. The Establishment Clause

arose only indirectly—raised not by the plaintiffs, but

19

by the school district as a defense—and the only

portion of the traditional Lemon test implicated was

the “endorsement test” gloss on the second prong,

which the Court rejected as atextual and ahistorical.

Id. at 535-37.

Justice Gorsuch, writing for the majority, stated

that the Court had “long ago abandoned Lemon and

its endorsement test offshoot.” Id. at 534. But while

the Lemon test as such may be no more, the two

decisions Justice Gorsuch cited as proof of Lemon’s

abandonment—Town of Greece v. Galloway, 572 U.S.

565 (2014), and American Legion v. American

Humanist Association, 588 U.S. 29 (2019)—

nonetheless affirmed traditional Establishment

Clause principles embodied in the Lemon factors.

Although the Court concluded those principles were

not offended in those particular cases, neither case

suggested in any way that the Court has “abandoned”

the core principles that constrain government

sponsorship of religion.

Town of Greece upheld the longstanding practice

of legislative prayer in the context of town board

meetings. See 572 U.S. at 578. Justice Kennedy’s

controlling opinion emphasized that the prayers in

question were addressed to legislators, not children;

were observed by adults, not students; and did not

proselytize or disparage other faiths. Id. at 582-83,

585-86. These features placed the practice within, not

outside, the Court’s traditional Establishment Clause

framework. Nothing in that case licensed the

government to underwrite religious education with

public funds. Instead, Town of Greece reiterated that

government may not “prescribe a religious orthodoxy,”

id. at 581, citing Lee v. Weisman, 505 U.S. 577 (1992),

20

where the Court held unconstitutional clergy-led

prayers recited at public school graduations.

American Legion followed a similar course. There,

the Court held constitutional a century-old Latin cross

memorial commemorating World War I veterans,

reasoning that the monument had come to embody a

predominantly civic meaning over time. 588 U.S. at

52. While a plurality of the Court criticized the Lemon

test, id. at 48-57, the Court confined its reasoning to

the specific context of “religious references or imagery

in public monuments, symbols, mottos, displays, and

ceremonies,” and acknowledged that different

Establishment Clause rules apply in other contexts—

including, critically, “religious expression in public

schools.” Id. at 51 n.16. The Court did not suggest that

government may fund religious instruction or operate

religious schools. To the contrary, it reaffirmed that

longstanding constitutional principles remain in

force, even as it concluded that this particular display

did not represent government embrace of a particular

religious symbol.

These decisions do not mark departures from

Establishment Clause doctrine; they apply longsettled principles to distinct factual settings. Those

principles control, whether referred to as part of a

test, or simply the enduring mandates of the

Establishment Clause. In actual substance, Town of

Greece, American Legion, and Kennedy object only to

the “endorsement test”—Justice O’Connor’s oftmaligned gloss on Lemon—not to the basic

Establishment Clause inquiry articulated in Lemon.

Indeed, the “main evils” the Establishment Clause

sought to prevent—“sponsorship, financial support,

and active involvement of the sovereign in religious

activity”—remain as valid today as when they were

21

articulated in Lemon. See Lemon, 403 U.S. at 612.

Although Kennedy abandoned Lemon as such, the

Court did not disavow the long line of cases

prohibiting direct government funding of religious

activity. Nor did it cast doubt on the continuing force

of Everson, McCollum, Tilton, and their progeny—all

of which reinforce the bar on direct financing of

religious instruction. See Am. Legion, 588 U.S. at 51

n.16 (approving Schempp and Lee). That core

Establishment Clause principle remains untouched.

The core Establishment Clause concern with

excessive entanglement between church and state

likewise remains intact. That principle traces its most

explicit formulation not to Lemon but to Walz v. Tax

Commission of New York, 397 U.S. 664, 670 (1970)—

though its roots reach back a full century before that

to Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871).

In Watson, the Court emphasized that civil courts

must not intervene in disputes over “questions of

discipline, or of faith, or ecclesiastical rule, custom, or

law,” id. at 727, warning that government attempts to

resolve such controversies would necessarily entangle

the state in “strictly and purely ecclesiastical” matters

that the government is incompetent to resolve. Id. at

733. Watson was decided as a matter of federal

common law. In Kedroff v. St. Nicholas Cathedral, 344

U.S. 94, 111-16 (1952), the Supreme Court adopted

Watson as the rule of First Amendment law. There,

the Court held that civil authorities lack the power to

substitute their judgment for that of religious

authorities exercising the powers granted in their

church doctrines or membership agreements. Id. at

115 n.20.

The Court further developed this principle of

“ecclesiastical abstention” in Serbian Eastern

22

Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

Although the Illinois Supreme Court claimed that it

had undertaken only a “‘minimal’ review under the

umbrella of ‘arbitrariness,’” this Court disagreed,

holding that the Illinois court had “unconstitutionally

undertaken the resolution of quintessentially

religious controversies whose resolution the First

Amendment commits exclusively to the highest

ecclesiastical tribunals of this hierarchical church.”

Id. at 720.

And that same entanglement concern pervades

this Court’s more recent Religion Clause decisions.

Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, 565 U.S. 171 (2012), highlighted the

entanglement risks inherent in state interference

with religious institutions’ selection and retention of

ministers. Id. at 184-89. And in Our Lady of

Guadalupe School v. Morrissey-Berru, 591 U.S. 732

(2020), Justice Alito’s opinion for the Court remarked

that deciding who qualifies as a co-religionist in a

religious school “would risk judicial entanglement in

religious issues.” Id. at 761. In a separate

concurrence, Justice Thomas, joined by Justice

Gorsuch, argued that the same concern should extend

to the determination of which positions are

ministerial. And Justice Thomas in fact cited Lemon

on the hazards of state entanglement with religion. Id.

at 764.

This doctrinal throughline shows the danger of

embroiling the state in questions of religious identity

and doctrine. Authorizing religious charter schools

would plunge government into precisely that terrain.

23

II. The Establishment Clause

Bars Direct Government

Religious Charter Schools.

Categorically

Funding Of

Petitioners focus their argument on whether St.

Isidore is engaged in “state action,” since the court

below held that it was. Board. Br. 23-44. They spend

twenty pages arguing that St. Isidore should be

labeled a “private” entity, and that it is not engaged

in “state action” in the same manner as a “public”

school. But the Establishment Clause’s bar on direct

funding for religious activity applies regardless of

whether St. Isidore is labeled a “public school.” Id. at

26; Pet.App.15a. Direct government financing of

religious education is constitutionally impermissible,

period. While amici agree with the Oklahoma

Supreme Court and Respondent that charter schools,

at bottom, are state-run public schools under

Oklahoma law, the constitutional prohibition applies

with equal force even if St. Isidore is deemed a

completely “private” school.

A. If St. Isidore is classified as a public

school, funding it through the charter

school

program

violates

the

Establishment Clause.

If St. Isidore is functionally a public school, as the

Oklahoma Supreme Court held, then it is flatly

unconstitutional for the state to fund its religious

mission. That result follows inevitably from the

McCollum line of cases, where the Court made clear

that the use of the “tax-established and tax-supported

public school system to aid religious groups to spread

their faith” is a paradigmatic Establishment Clause

violation. McCollum, 333 U.S. at 210; see also Levitt

v. Comm. for Pub. Educ. & Religious Liberty, 413 U.S.

472, 482 (1973) (declaring unconstitutional a state

24

law offering lump-sum reimbursements directly to

schools).

As this Court explained in Engel v. Vitale, even a

short nondenominational prayer composed by the

state for schoolchildren to recite violates the

Constitution—not because it is coercive, but because

it enlists the machinery of the state to promote

religion. 370 U.S. at 425. That prohibition applies

with even more force when the state charters a school

whose purpose is to deliver a religious education. If

the Establishment Clause bars public schools from

composing a prayer, it surely forbids public schools

from promulgating religious doctrine as curriculum.

In limited contexts, to be sure, the Court has held

that government may constitutionally speak with a

religious voice. See, e.g., Lynch v. Donnelly, 465 U.S.

668, 684-85 (1984) (upholding a nativity scene in a

broader civic holiday display); Van Orden v. Perry, 545

U.S. 677, 686 (2005) (plurality opinion) (upholding

Ten Commandments monument based on its

historical and moral significance); Marsh v.

Chambers, 463 U.S. 783, 792 (1983) (sustaining the

tradition of opening legislative sessions with prayer).

But those cases arose in civic spaces, not classrooms.

As the Court recognized in Lee v. Weisman, the

classroom is not a public park or legislative hall; it is

a setting where the state speaks to a captive audience

of children. 505 U.S. at 592. In that environment, Lee

explained, the state’s use of religion carries a unique

risk of coercion—not by explicit threat, but by the

subtle force of government endorsement. Id.

Unresolvable entanglements necessarily arise

when a public school is also a vector for indoctrinating

the faithful. The state oversees—or directly dictates—

public schools’ curriculum and testing standards,

25

personnel policies, decisions about hiring and

termination, and more. If St. Isidore were chartered

by Oklahoma, at least some doctrinal decisions would

necessarily be subject to state control.

Similarly, if St. Isidore is classified as a public

school while maintaining its religious character under

the auspices of the Diocese of Tulsa and the

Archdiocese of Oklahoma City, an impossible conflict

emerges between the Establishment Clause and the

ministerial exception to anti-discrimination laws.

This Court has recognized that religious

institutions, including schools, must have autonomy

to select those who perform religious (“ministerial”)

functions, without government interference—

including through application of anti-discrimination

in employment laws. Hosanna-Tabor, 565 U.S. at 18889. The ministerial exception is grounded in both

Religion Clauses. Hosanna-Tabor, 565 U.S. at 188-89.

As a public entity, St. Isidore would be bound by

anti-discrimination laws and the constitutional

protections that apply to government employers. But

as a religious institution, it would simultaneously

claim the right to make employment decisions based

on religious criteria—to hire only Catholic teachers,

for instance, or to dismiss employees who do not

adhere to Catholic teachings. No court could resolve

this contradiction without either depriving the school

of its claim to religious autonomy, or exempting a

public entity from constitutional constraints that bind

all government actors. Indeed, this Court has

recognized that even limited governmental oversight

of religious school operations “presents a significant

risk” of impermissible entanglement with religious

questions. NLRB v. Catholic Bishop of Chicago, 440

U.S. 490, 502 (1979); see also Our Lady, 591 U.S. at

26

746 (explaining that under the ministerial exception

“courts are bound to stay out of employment disputes

involving those holding certain important positions

with churches and other religious institutions”).

The law would be hard-pressed to sustain such a

contradiction, simultaneously requiring that a public

school be subject to anti-discrimination rules while

permitting it to fire “ministerial” teachers on

otherwise prohibited bases. The Constitution offers up

a simpler solution—one that avoids an unworkable

government entanglement in what should be religious

decisions: Public schools may not teach religion, and

government may not directly fund religious schools.

B. If St. Isidore is classified as a private

institution,

funding

it

nonetheless

contravenes the Constitution.

It makes no constitutional difference whether the

state directly funds an entity called a “religious public

school” or a “religious private school,” as St. Isidore

argues it is. If anything, impermissible entanglements

are exacerbated when the school is considered

“private” yet receives direct public funding not

mediated by individual choice. In either case, the

Establishment Clause forbids it.

1. The Establishment Clause proscribes direct

government funding for religious instruction. That is

true regardless of the recipient’s public or private

character; St. Isidore’s classification is beside the

point. The key issue is that Petitioners seek to require

Oklahoma to fund religious instruction with public

money, bypassing the private-choice mechanisms

essential to constitutional neutrality and religious

liberty.

27

This Court has never blessed such an

arrangement. To be sure, the Court has upheld

certain programs in which public funds do ultimately

reach religious schools. But in each of those cases, the

constitutionality of the arrangement turned on the

presence or absence of genuine private choice

mediating the flow of government funds to religious

institutions. Petitioners elide the difference between

indirect aid programs, in which government funds

reach religious institutions solely through the private

choices of individuals, and direct funding schemes, in

which the state itself selects and subsidizes religious

entities. But that distinction is critical.

In Witters v. Washington Department of Services

for the Blind, 474 U.S. 481 (1986), for example, the

Court upheld a blind student’s use of vocational

rehabilitation aid at a Christian college because the

funds reached the school “only as a result of the

genuinely independent and private choices of aid

recipients.” Id. at 488. The rehabilitation aid program

offered no financial incentives for sectarian education

and distributed aid neutrally, without regard to

religious content. Ibid.

Similarly, in Zelman v. Simmons-Harris, 536 U.S.

639 (2002), the Court upheld Cleveland’s school

voucher program because it provided aid to religious

schools only through “genuine and independent

private choice.” Id. at 652. The Court emphasized that

the funds flowed to the school only after the parents

chose that school. See ibid. Such programs do not

offend the Establishment Clause, the Court held,

because the power of individuals to control where the

funds are directed breaks the “circuit between

government and religion.” Id. at 652-53.

28

Here, by contrast, the decision to create and fund

the charter school is governmental, not parental.

While parents may choose the school for their child,

the choice does not come bundled with parental

control of funding allocation. Rather, the government

itself decides whether to fund particular charter

schools based on its own assessment of their value,

without the intervening private-choice architecture

that justified aid to religious schools in Witters and

Zelman.

Petitioners conflate enrollment-based public

funding with private choice. But a funding formula

based in part on enrollment numbers is not private

direction. It is how the State funds all public schools—

based on averaged and anticipated enrollment in a

government-selected institution. There is no per-pupil

formula based on exact enrollment each school year,

tied to specific students who have specifically chosen

a specific school and then individually directed the

State to send funds to that school. See generally Resp.

Br. 47-49. Nor is that the lesson of Zelman. Rather,

the distinction between the private-choice programs

upheld in Zelman and Witters, on the one hand, and

the direct funding scheme Petitioners seek here, on

the other, is not who ends up receiving the money; it

is who makes the call.

That distinction is rooted in fundamental

Establishment Clause principles. When individuals

choose where their education benefits go, the

government remains neutral among religious and

nonreligious options. But when the state itself decides

which religious schools to license and authorize to

participate in the charter school program, it crosses

the line from neutrality to preference. It necessarily

decides which faiths deserve public support—which

29

fit best within the state’s political agenda or its

leaders’ faith commitments. That act of selection—of

favoring one faith over another—violates the

structural separation the Constitution demands.

2. Petitioners lean heavily on a trio of recent Free

Exercise decisions—Trinity Lutheran, Espinoza, and

Carson—that address whether religious institutions

may be excluded from generally available public

benefit programs. But those cases addressed whether

a state that funds private schools may exclude

religious ones because they are religious. That is a

very different question from the one presented here.

There, parents chose the school. Here, the state

chooses which schools exist.

In each of those cases, the Court held that when a

state opens a funding program to private schools

generally, it cannot single out religious schools for

disqualification based on religious status. That

principle rests on the Free Exercise Clause’s

prohibition against religious discrimination in neutral

programs of private choice. See, e.g., Trinity Lutheran

Church v. Comer, 582 U.S. 449, 465 & n.3 (2017);

Espinoza v. Montana Dep’t of Revenue, 591 U.S. 464,

484 (2020).

The most recent of the trilogy, Carson v. Makin,

596 U.S. 767 (2022), reaffirmed that rule. There,

Maine funded tuition at private schools of the parents’

choosing—so long as those schools were not religious.

The Court struck down that exclusion as

discriminatory. Id. at 781. But Carson, like Witters

and Zelman, involved private individuals directing

state aid to schools of their choosing. Ibid. The Court

emphasized that what made the program

constitutional was the intervening private choice. See

ibid. (“[A] neutral benefit program in which public

30

funds flow to religious organizations through the

independent choices of private benefit recipients does

not offend the Establishment Clause.”) (emphasis

added). Nothing in Carson remotely suggests that the

state may itself select and fund religious schools. On

the contrary, the decision assumes private direction

as a constitutional prerequisite.

This case is fundamentally different. Carson

turned on private choice; this case turns on public

power. The question is not whether religious schools

may access public funding on equal terms—it is

whether the state may directly sponsor a religious

school. That question is not answered by Trinity

Lutheran, Espinoza, or Carson. Petitioners seek to

convert those Free Exercise holdings into a

constitutional entitlement to public funding for

religious education. But that is not what the

Constitution permits—and it is certainly not what it

requires.

Petitioners also attempt to recast Oklahoma’s

constitutional fidelity as religious discrimination.

They invoke the supposedly pervasive anti-Catholic

sentiment that led to Oklahoma’s (and other states’)

19th-century Blaine Amendments, Board. Br. 45-46,

and point to the unvarnished animosity toward Islam

reflected in the Oklahoma Attorney General’s

opposition to chartering any faith-based school. Id. at

46. Yet from that troubling history, Petitioners draw

a remarkable conclusion—that Oklahoma has shown

“special hostility” to Catholics by refusing to divert

taxpayer funds to finance a first-of-its-kind public

Catholic charter school. Id. at 48-49.

The Court need not tangle with such strained

logic. The far greater risk of faith-based

discrimination arises from Petitioners’ own proposed

31

regime. If the state is permitted to authorize religious

charter schools, it will be forced to choose among

competing faith-based applicants—embroiling the

government in exactly the kind of sectarian favoritism

the Establishment Clause forbids. See Larson v.

Valente, 456 U.S. 228, 244 (1982) (“The clearest

command of the Establishment Clause is that one

religious denomination cannot be officially preferred

over another.”). The state cannot fund every religious

school that seeks a charter. Every future decision—

who gets funded, who gets denied—will drag

government deeper into questions it is unfit to

answer: What counts as doctrine? What qualifies as a

church? Who speaks for a tradition? That is not

neutrality. That is religious preference repackaged as

educational choice.

The risk is not hypothetical: As Petitioners note,

Oklahoma has already signaled its hostility to the

idea of a Muslim charter school. Pet.App.174a (24396). But the Establishment Clause does not permit

government to play favorites. In Board of Education

of Kiryas Joel Village School District v. Grumet, 512

U.S. 687 (1994), the Court struck down the creation of

a public school district tailored to a single religious

community. Id. at 703. That arrangement, the Court

held, violated the Establishment Clause’s core

prohibition

on

denominational

preference—

particularly because, as here, there was “no assurance

that the next similarly situated group seeking a school

district of its own will receive one.” Ibid.

The same concern animated Larkin v. Grendel’s

Den, Inc., 459 U.S. 116 (1982), where the Court

invalidated a law delegating zoning authority to

churches. That delegation, the Court held,

impermissibly allowed religious groups to wield civic

32

power, inviting favoritism and state endorsement. Id.

at 125. And in Thomas v. Review Board, 450 U.S. 707

(1981), the Court made clear that civil authorities

cannot adjudicate religious questions: “Courts are not

arbiters of scriptural interpretation,” and it is not

within their competence to “inquire whether the

petitioner or his fellow worker more correctly

perceived the commands of their common faith.” Id. at

716.

Authorizing religious charter schools would

resurrect all of these hazards. The state would be

forced to decide which faith-based schools merit

official recognition, and thus which religious doctrines

are compatible with public funding. The Constitution

avoids these intractable dilemmas by drawing a

bright line: The state may not directly fund religious

instruction. That line has long preserved both faith

and freedom. It should be respected here.

*****

The State may not deliver catechism as

curriculum. That prohibition safeguards both religion

and the integrity of civil government. As the Founders

understood, religious liberty thrives when faith is

sustained by the voluntary support of its adherents—

not compelled by the state, and not buoyed by public

funds.

The Establishment Clause bars the government

from engaging in or directly funding religious

education. It does so not merely to protect the

conscience rights of dissenters, but to preserve the

institutional integrity of both church and state. Once

the government selects, funds, or endorses a

particular religious school, it forfeits neutrality. It

risks becoming the patron of favored sects and the

arbiter of faith’s civic worth. That path would forsake

33

a foundational constitutional commitment for fleeting

preference—and unleash the very favoritism and

division the Establishment Clause exists to prevent.

CONCLUSION

The judgment of the Oklahoma Supreme Court

should be affirmed.

34

Respectfully submitted,

THAILA K. SUNDARESAN

Davis Wright Tremaine

LLP

50 California Street

Suite 2300

San Francisco, CA 94111

BIANCA G. CHAMUSCO

Davis Wright Tremaine

LLP

920 5th Avenue

Suite 3300

Seattle, WA 98104

K. HOLLYN HOLLMAN

Baptist Joint Committee

for Religious Liberty

200 Maryland Ave NE

Washington, DC 20002

DAVID M. GOSSETT

Counsel of Record

CHAVA BRANDRISS

Davis Wright Tremaine

LLP

1301 K Street NW

Suite 500 East

Washington, DC 20005

(202) 973-4200

davidgossett@dwt.com

ROBERT W. TUTTLE

Evangelical Lutheran

Church in America

2000 H Street NW

Washington, DC 20051

THOMAS A. CUNNIFF

PAUL K. IRWIN

Evangelical Lutheran

Church in America

8765 W. Higgins Road

Chicago, IL 60631

HEATHER E. KIMMEL

United Church of Christ

1300 E. 9th Street

Suite 1100

Cleveland, OH 44114

Counsel for Amici Curiae

APRIL 7, 2025

APPENDIX TABLE OF CONTENTS

Page

DESCRIPTION OF AMICI ....................................... 1a

1a

APPENDIX: DESCRIPTION OF AMICI

The Baptist Joint Committee for Religious

Liberty (BJC) serves more than a dozen supporting

organizations, including national and state Baptist

conventions and conferences. It is the only

denomination-based organization dedicated to

religious liberty and church-state separation issues. It

believes that strong enforcement of the First

Amendment is essential to religious liberty for all

Americans.

The Central Conference of American Rabbis

and Union for Reform Judaism have, throughout

their history, steadfastly maintained the principle of

separation of church and state, believing that the

First Amendment to the Constitution is the bulwark

of religious freedom and interfaith amity.

The Cooperating Baptist Fellowship of

Oklahoma (CBF Oklahoma) is a community of

churches and individuals building partnerships on

mission with Christ and sustaining conversations of

faith, well-being, and Baptist identity. Founded in

1992, CBF Oklahoma cooperates in the areas of

evangelism, anti-poverty initiatives, disaster relief,

support of theological institutions, religious

journalism, new church starts, peer learning groups,

missions, pastoral support, search committee

consultation, Christian coaching, and fellowship.

The Cooperative Baptist Fellowship (CBF) is

a global community that bears witness to the Gospel

in partnership with Christians across the nation and

around the world. CBF is a network of churches,

individuals and partners inviting each other into

deeper community, equipping each other for ministry

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and seeking the transformation of God’s world. Our

understanding of Baptist faith and practice is

expressed by our emphasis on freedom in biblical

interpretation and congregational governance, the

participation of women and men in all aspects of

church leadership and Christian ministry, and

religious liberty for all people. Since our founding in

1991, CBF has been a supporting denomination of

BJC.

The Evangelical Lutheran Church in America (ELCA) is the largest Lutheran denomination in

North America and is the fourth-largest Protestant

body in the United States. Formed in 1988 by the

merger of the Lutheran Church in America, The

American Lutheran Church, and the Association of

Evangelical Lutheran Churches, the ELCA has over

8,000 member congregations which, in turn, have

approximately three million individual members.

These congregations are grouped into and affiliated

with 65 synods that serve as the regional

organizations of this church body. In 2017, the Church

Council of the ELCA adopted a social message on

Human Rights, in which it states that the ELCA will

“advocate for the U.S. government to protect and

promote the equal rights of all people, as enshrined in

the U.S. Constitution and Bill of Rights,” which

include the First Amendment rights of freedom of

religion and to be free from government establishment

of religion.

The General Synod of the United Church of

Christ (UCC) is the representative body of the

National Setting of the United Church of Christ. The

UCC was formed in 1957, by the union of the

Evangelical and Reformed Church and The General

Council of the Congregational Christian Churches of

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the United States in order to express more fully the

oneness in Christ of the churches composing it, to

make more effective their common witness in Christ,

and to serve God’s people in the world. The UCC has

over 4,800 churches in the United States, with a

membership of approximately 825,000. The General

Synod of the UCC, various settings of the UCC, and

its predecessor denominations, have a rich heritage of

promoting religious freedom and tolerance. Believing

that churches are strengthened, not weakened, by the

principle of the separation of church and state, the

UCC has long acknowledged its responsibility to

protect the right of all to believe and worship

voluntarily as conscience dictates, and to oppose

efforts to have government at any level support or

promote the views of one faith community more than

another.

Interfaith Alliance is a national interfaith

organization dedicated to protecting the integrity of

both religion and democracy in America. Interfaith

Alliance was founded in 1994 by a broad coalition of

mainstream religious leaders who wanted to

challenge the outsized impact of religious extremists

in our country. For more than 30 years, Interfaith

Alliance has advocated at all levels of government for

an equitable and just America where the freedoms of

belief and religious practice are protected, and where

all persons are treated with dignity and have the

opportunity to thrive.

The Most Reverend Sean W. Rowe is the 28th

Presiding Bishop of the Episcopal Church, a

hierarchical religious denomination in the United

States and 17 other countries. Under the Church’s

polity, the Presiding Bishop is charged with

“speak[ing] God’s words to the Church and to the

4a

world, as the representative of [the] Church.” The

Episcopal Church has consistently supported

religious freedom for all in a variety of contexts. In

1994, the Church urged State Legislatures

considering “moment of silence” statutes for public

schools to “assure Constitutional balance” in their

treatment of the issue by “carefully considering the

First Amendment’s Free Exercise clause as well as its

Establishment clause.”

The Muslim Public Affairs Council (MPAC),

a nonprofit, has worked since its 1988 founding to

enhance American pluralism, improve understanding

of American Muslims, and speak out on policies that

affect American Muslims and other marginalized

groups. MPAC collaborates with other faith-based

organizations to encourage civic engagement and

preserve democratic ideals enshrined in the

Constitution.

National Council of Jewish Women (NCJW)

is a grassroots organization composed of volunteers

and advocates dedicated to the pursuit of equity and

justice through a powerful combination of community

organizing, education, direct service, and advocacy.

NCJW carries the tradition of safeguarding the

individual rights of freedoms for women, children, and

families. United by our Jewish values, we mobilize our

network of 50 local sections and over 225,000

advocates to make this vision a reality at all levels of

government and in communities across the United

States.