Bias claims at play in high court
Law bars state funding of religious institutions
By: Maureen Groppe
USA Today
WASHINGTON - The Catholic education that the church wants to offer Oklahoma children through the state's public charter school program is likely familiar to the Supreme Court.
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Most of the justices who will decide the fate of the nation's first proposed religious charter school in the coming weeks attended Catholic schools growing up.
..... That fact could play a role in how they handle what could be a blockbuster case April 30 [2025] as the Catholic diocese hoping to run the school present an argument that may also resonate with the seven of the nine justices who were raised Catholic.
..... As part of their case, the diocese say Oklahoma's ban on using public funds to support sectarian institutions is rooted in anti-Catholic bias.
..... "When Oklahoma joined the Union in 1907. nativist anti-Catholic bigotry evaded public discourse, particularly surrounding schools," lawyers for St' Isidore of Seville Catholic Virtual School told the Supreme Court in court documents.
..... The state constitution;s insistence that public schools be "free from sectary-century movement that led to multiple stats blocking religious schools from receiving taxpayer dollars.
..... The U.S. Congress in 1876 considered - but validated to adopt - Representative James Blaine's proposed amendment to prevent state tax money form supporting public schools. Many states, however, individually passed restrictions - dubbed "baby Blaines.
..... "While anti-Catholic rhetoric ran high in the debate about the federal amendment, it's wrong to castigate all state provisions as remnants of anti-Catholic animus, said Steven Green, director of the Center for Religion, Law & Democracy at Willamette University in Oregon.
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Green an expert on the Blaine Amendment, has written that the principle of withholding public funding form religious institutions predates the 19th-centray influx of Catholic immigrants that drove discrimination.
..... But the anti-Catholic explanation has resonated with the Supreme Court before.
Thomas blasts 'shameful pedigree'
..... When the court in 2000, said states could make loans to religious schools, Justice Clarence Thomas wrote that "hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow."
..... In 2020, Che if Justice John Roberts denounced the Blaine Amendment and "many of its state counterparts" when the court's conservative majority ruled 5-4 that states offering scholarships to students in private schools cannot exclude religious schools from such programs.
..... To drive home that point, Justice Samuel Alito wrote 11-page concurring opinion devoted to the Blaine Amendment and anti-Catholic bias. he included an 1971 editorial cartoon from Harper;s Weekly that he said depicts Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background.
Taking cues from Jefferson
..... Oklahoma Attorney General Gentner Drummond, who is defending the state Supreme Court's decision that religious charter schools violate the state and federal constitutions, takes that history head-on.
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Drummind opened his written argument by condemining "the Blaine Amendments and the invidious anti-Catholic bias that motivated them."
..... But Oklahoma's Constitution, he wrote, cannot be smeared with the same stain.
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He cited statements from state Supreme Court justice that Oklahoma's founders took their cue not from Blaine but from Thomas Jefferson, who authored Virginia's 1786 law establishing religious freedom.
..... Jefferson and fellow Founding Father James Madison thought government financial support for religion would infringe on "religious liberty and rights of conscience."
'Christianizaiton' campaign
..... And a group of 18 historian and legal scholars, including Green, have weighed in, offering another explanation for what motivated the ban.
..... Oklahoma's no-funding provision was partly a response to the government's treatment of Native American children, they told the Supreme Court.
..... After many Native Americans were forcibly relocated to Oklahoma in the 19th century, their children were forced to attend boarding schools run by Protestant and Catholic organizations apart of a "Christianization" campaign.
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Native American leaders were delegates in 1907 to the state's constitutional convention. The constitutional provision prohibiting public funds from being sued for sectarian purposes echoed language drafted by Native Americans, the historians and legal scholars said.
..... "The Oklahoma framers sought to ensure that citizen of their new State, including its Native residents, could enjoy religious freedom after decades of religious repression through religious re-education," they wrote. "The Blaine Amendment;s history has no bearing on Oklahoma's no-funding provision and says nothing about the State's charter-school law."
..... The Catholic Church's appeal - St Isidore op Seville Catholic Virtual School v. Drummond - is one of three religious rights cases the Supreme court is deciding in the coming weeks. The justices seem likely to side with the Catholic charitable organization and Catholic parents involved in the other two.
..... Decisions in all three are expected by summer. [2025]