Editor’s note: This blog post by AU President and CEO Rachel Laser originally appeared in the June 2025 issue of AU’s Church & State magazine.
I had the honor of attending the oral argument in St. Isidore of Seville Catholic Virtual School v. Drummond, Oklahoma Republican Attorney General Gentner Drummond’s lawsuit against the nation’s first religious public charter school. It was my double honor to bring with me the Rev. Lori Walke, who flew in from Oklahoma City to be there. Lori is one of our clergy plaintiffs in AU’s separate lawsuit also challenging St. Isidore.
On the way to the Supreme Court, when our Uber was just a few blocks from the courthouse, Lori and I saw a group of students wearing blue hats who were also on their way. Soon, they were swaying to loud Christian music in front of the court in support of St. Isidore with signs that said “Free to Learn” and “All Students, All Options, All Dollars.”
Once we were inside the courthouse and seated, I saw Drummond making his rounds as politicians do to greet various folks before heading up to the front. Somewhat daringly, since the scene was quite formal, I popped up out of my seat and walked across the room to introduce myself as the president and CEO of AU and to thank him for bringing the case. He seemed energized and even optimistic.
As you may know, Justice Amy Coney Barrett recused herself (we assume on the basis of her close relationship with Notre Dame’s Religious Liberty Clinic, which represented St. Isidore), so we needed just four of the eight sitting justices to rule against St. Isidore for the Oklahoma Supreme Court’s favorable ruling to stand. Pretty quickly it was clear that Chief Justice John Roberts seemed like the only hope for victory. In his first line of questioning, Roberts correctly noted that “this does strike me as a – a much more comprehensive [state] involvement” than the three cases our opponents relied on involving “fairly discrete state involvement.” Those three cases involved government funding of a church’s playground flooring, tuition tax credits and tuition assistance programs for private religious schools – not direct and full taxpayer funding of a religious public school. By the end of the argument, despite three justices firmly supporting church-state separation, our odds didn’t appear promising.
Even so, the justices, in a surprisingly quick decision, on May 22 issued their ruling – “an equally divided Court,” ending in a deadlock, allowed to stand an Oklahoma court’s ruling that this religious public charter school would violate state law and the Constitution.
Despite this significant victory for church-state separation, there is so much to say about the oral argument; but what stands out the most is the reality that a considerable number of the highest sitting judges in our land do not seem to accept the basic purpose and principle of church-state separation.
Here is just one illustration: In response to Drummond’s attorney pointing out that religious, government-funded schools will inevitably lead to divisions between religions, Justice Brett Kavanaugh responded by stating that “it seems like strife could also come when people who are religious feel like they’re being excluded because they’re religious.” It’s incredibly frustrating for a Supreme Court justice to turn the founders’ very motivation for church-state separation – preventing religious divides and even wars – on its head.
The majority of the conservative justices seemed to buy into some version of St. Isidore’s argument that prohibiting St. Isidore from becoming a public charter school – respecting the separation of church and state – would be a constitutional violation of St. Isidore’s religious freedom. As I took that in, my mind returned to Justice Sonia Sotomayor’s lament in her dissent in the 2022 Carson v. Makin case: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
After the argument, Lori and I walked outside and over to where the press was gathered so that we could share our impressions. Someone there turned to us and asked if we were with the St. Isidore supporters. Lori was wearing her clergy collar and we are both white – two markers that unfortunately have come to signal sympathy to Christian Nationalism.
Reflecting on this delicate win, I wanted to leave you with two thoughts. First, please take a moment to pause and feel proud. Know that the energy and support that we are generating together around protecting church-state separation is working. Second, use this close call concerning church-state separation to ring the alarm bell about the importance of church-state separation in America. Because if not now, when?
Photo: AU President and CEO Rachel Laser and the Rev. Lori Walke outside the U.S. Supreme Court (Isabel Aldunate/MatchPoint Strategies)
