As I Expected, SCOTUS 4-4's St. Isidore's Case With Barrett Recused (Updated)

And we still do not know exactly why ACB recused.

Shortly after the Court granted cert in St. Isidore of Seville v. Drummond, I wrote two posts about Justice Barrett's recusal. Before the case was even argued, I made a crude prediction to several reporters that the Chief would take the easy-out, and just vote to 4-4 affirm. There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.

And so it has come to pass. The Court affirmed the Oklahoma Supreme Court with a 4-4 decision. I am reasonably confident that Justice Kavanaugh voted with the conservatives. And Chief Justice Roberts was with his progressive colleagues. Roberts cast his vote in Carson v. Maikin, but I doubt he would go much further.

Regrettably, we still do not know why Justice Barrett recused. Was it because Notre Dame University was involved? The Notre Dame religious liberty clinic? Or was this because of Nicole Garnett's involvement? If this concerns her friendship with Garnett, the recusal can directly affect some of the allegations against Justice Thomas. Who knows.

I am not aware that any other state has a similar school in the pipeline, so this issue will remain unresolved for some to come.

Update: A colleague flags that Barrett did not recuse in another case brought by the Notre Dame Religious Liberty Clinic. It doesn't seem that Garnett had any involvement with this case. As a general matter, a recusal is triggered at all stages--cert and merits. So if she did not recuse here, the clinic, standing by itself is not the cause of the recusal. Still, it is unclear to me whether Barrett's recusal in St. Isidore was due to the Justice's friendship with Nicole Garnett, or Barrett's connection with clinic through Garnett. Ultimately, I am not certain the cause of Barrett's recusal, but the clinic, standing apart from Garnett should not trigger a recusal.

Comments

[ah....Clem]

"The Oklahoma Supreme Court reasoned that although the state constitution and the establishment clause of the U.S. Constitution “prohibit the State from using public money for the establishment of a religious institution,” “St. Isidore’s educational philosophy is to establish and operate the school as a Catholic school.”
-Scotusblog

That should have done it right there - should have been zero votes to grant cert. Don't know why they wasted everyone's time with this. Or why Barrett recused either.

[Speaking for normal people]

It is a bad decision. Don't see the students who now get nothing, get something better by getting nothing

[Speaking for normal people]

I. THE OKLAHOMA SUPREME COURT’S
MISGUIDED STATE-ACTION
ANALYSIS SWEEPS IN A LOT OF
PRIVATE CONDUCT....................................... 4
A. Private entities regularly help states
fulfill important onligations ........................ 6
B. A vast array of private conduct
receives government funding. ..................... 9
C. Labeling private conduct “public” does
not transform it into state action.............. 13

[MoreCurious]

If you keep trying, one of these days you'll post a comment that is understandable.

[MoreCurious]

Huh?

[Jack V.]

I think the concern was that since the school was going to meet *all* the neutral criteria that the State required, and additionally wanted to operate as a Catholic school, shouldn't it be eligible for the state program (conditional on meeting all the neutral criteria)?

If schools are permitted to add additional factors, like being especially focused on STEM, while meeting all the neutral criteria, singling out religiosity as an unacceptable additional factor smacks of a Free Exercise violation (as opposed to the State's anti-Establishment interest).

I don't think this really was an easy question either way.

[David Nieporent]

No. This isn't like Trinity Lutheran, in which there was a playground of a purely secular nature — not sure what a Lutheran seesaw would be — operated by a religious institution. This is intended to be a Catholic school. Public, but Catholic. Every bit of its curriculum is religious in nature, as it itself said. Yes, it would convey secular knowledge like algebra or chemistry, but only as an adjunct to promoting Catholicism.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

There is no functional difference between Catholicism and your fucked up Leftist/Statist ideology that is already being used to indoctrinate children in schools.

[ScottK]

I would expect a person with all of those advanced degrees to be capable of distinguishing between secularism and religion.

[ducksalad]

In case you're new here, he doesn't claim any of those degrees. He's mocking higher education and the concept of credentialed expertise.

[Josh R]

The hard question is whether it was like Carson v Malkin where the Court struck down denying tuition assistance to a Catholic school. Is a charter school a public school (the Establishment Clause precludes Catholic schools) or is it a private school with a contract with the state (the Free Exercise clause precludes the state from denying the contract to a Catholic school?

[Brett Bellmore]

As a legal matter, a charter school is a public school that is simply run differently from the regular public schools, according to its government approved charter. They're subject to all the same regulations in terms of schedules and minimum subject matter, though they can go beyond it.

At least here in South Carolina, they also get substantially less funding, as they get the state component of school funding, but not the local tax component. They make it up with regular fundraisers and corporate sponsorships.

My son's charter school, for instance, occupies a building on a local college campus, offers access to college courses, and has a very extensive intervention system for students who aren't doing well, in order to achieve a 100% graduation rate most years. It specializes in "mastery learning" and early college, and a fair number of students in their recent graduation ceremony were awarded associate degrees along side the HS diploma.

So, I guess I would conclude that there's no reason in principle that a church couldn't run a charter school if the teaching were as purely secular as regular public schools are required to be, but any religious element would have to be kept separate from anything required for graduation, and at the least be separately funded.

[David Nieporent]

As a legal matter, a charter school is a public school that is simply run differently from the regular public schools, according to its government approved charter.

That is my position also, but the petitioners here argued that the school wasn't a public school. The Oklahoma Supreme Court disagreed, and SCOTUS, of course, never ruled.

[Brett Bellmore]

Really, my personal preference is that the government get entirely out of the business of running schools, and that we just switch to an entirely voucher based system. That would eliminate let parents avoid the pathologies you see in some public schools, opt for a religiously based education if that's what they want, and, frankly, get around some of the inefficiencies I've seen at my son's charter school that come from having to follow state dictated pacing when teaching gifted students.

[hobie]

Aren't vouchers putting the state into a position of 'running' the school...at least financially? How about, like you said, the state get entirely out of education? We could devolve straight back to little house on the prairie

[Brett Bellmore]

Relevantly, The Oklahoma law authorizing charter schools says,

"C. 1. For purposes of the Oklahoma Charter Schools Act,
“charter school” means:
a. prior to July 1, 2024, a public school established by
contract with a school district board of education, a
technology center school district, a higher education
institution, a federally recognized Indian tribe, or
the State Board of Education, and
b. on July 1, 2024, and after, a public school
established by contract with a school district board
of education, a higher education institution, an
institution of higher learning accredited pursuant to
Section 4103 of Title 70 of the Oklahoma Statutes, a
federally recognized Indian tribe, or the Statewide
Charter School Board,"

I don't think there's any question AT ALL that Oklahoma charter schools are "public schools", they're declared to be such in the very law that authorizes their creation.

[Brett Bellmore]

I guess I'm saying that I'm a bit surprised that this was a 4-4 decision.

[Speaking for normal people]

I was in a religious order , went to Catholic high school, grad school, worked at Catholic non-profit, taugth for 10 years at a Catholic college --- and never did religion touch chemistry or algebra

Where I last taught , to get chemistry or algebra teachers there you had to have non-Catholics. Plus it is college policy that you not teach outside your discipline. The charge has all the signs of talking out your ass.

[MoreCurious]

Unfortunately, somewhere along the line someone forgot to teach you how to write comprehensible English.

[hobie]

"never did religion touch chemistry or algebra"

Commendable. And as long as it didn't touch anything else you'd have a perfectly neutral school safe for children of all faiths

[not guilty]

Does anyone else remember when efforts like this were pejoratively called parochaid?

[Brett Bellmore]

I remember participating in parochiaid as a child in Michigan. I don't think my family thought the term was at all pejorative... It seems a fairly neutral term.

[ducksalad]

Jack, to me the main problem here is having an something labeled as a public school and a Catholic school at the same time.

I don't have a big problem with tax money making it to private religious schools through neutral criteria grants to be spent on secular stuff. Even if the state money indirectly frees up their private money to spend on religious instruction.

On the establishment clause, appearances and labels do matter. A lot of it really is about whether there is the appearance of an endorsement. IMO voucher programs are the cleanest way to avoid the problem.

[Speaking for normal people]

Religion ,however you define it, is still just a certain answer to unversally-asked and most important of ultimate questions.
Any answer is religious. I see no problem if no one were forced to use this Catholic school

[hobie]

As long as my tax dollars do not go to promoting Islam or Hinduism, I'm totally cool with vouchers

[Lee Moore]

the establishment clause of the U.S. Constitution “prohibit the State from using public money for the establishment of a religious institution,”

That is, of course, not what the establishment clause of the US Constitution says. "Establishing" a religious institution in the sense of allowing to be created with state funds, is not the same thing as "an establishment of religion." Not even slightly.

The government of the UK, which has an "established church", is quite happy to "establish" Roman Catholic schools in the sense of funding them. But the Roman Catholic Church is not the "established church" - which is a different idea altogether - including the head of State being the head of the church, the government appointing the bishops, and holding the decisive power over doctrine.

[Bob from Ohio]

"an establishment of religion."

Agree with all of your comments. Our establishment clause jurisprudence is wrong from the first decision to the last because it fails to correctly reflect what an "establishment" is.'' the founders knew what an "establishment" was because there were ones, especially in Massachusetts.

[MollyGodiva]

So everything short of Congress passing a law that makes one religion the official religion of the US is fine by you? Bible lessons and prayer time in public schools? Public money to private religious schools? Mandatory bibles and the ten commandments in the classroom?

[Speaking for normal people]

Molly, EVERY school of the Founding era had Bibles and 10 Commandments
Tocqueville notes that every American household possessed a Bible and the works of Shakespeare.

There is no public money, not a cent, that doesn't start out as some citizen's private money. You are even stupid as an atheist.
Atheist Christopher Hitchens Writes Love Letter to the King James Bible
By Eleanor Barkhorn
April 1, 2011
https://www.theatlantic.com/entertainment/archive/2011/04/atheist-christopher-hitchens-writes-love-letter-to-the-king-james-bible/73329/

and he would hold you up as what willful ignorance of the most influential book in history produces

[bernard11]

EVERY school of the Founding era had Bibles and 10 Commandments

So what?

Tocqueville notes that every American household possessed a Bible and the works of Shakespeare.

He may have said it, but I doubt it was true.

[Lee Moore]

Well now. We need to distinguish between what's OK by me, and what's OK by the constitution.

I'm not godly myself, so I have no desire to see any religion "established" in the constitutional sense. But I have no objection to people pursuing their own religions, nor any objection to religious schools, art galleries, shopping centers, buildings, whatevs being treated by the government on a par with non religious ones. So none of your "horribles" terrify me, since I assume the government will, in some areas, be eagerly stocking secular schools with other stuff that I regard as being less than vital, or actively harmful, to education. But if the parents are OK with that stuff, then OK. I'm more of a voucher type person, so that parents can pick the content of what their children learn by selecting a school that suits them. Like groceries.

As to the constitution, I think "establishment" is one of those "I know it when I see it" things. The founders had actual examples of established churches in mind - most obviously the Church of England - so they used "establishment" in the sense of an official church mutually entwined with the state - ie in the Church of England it is not merely that the state governed the Church, but the Church had a significance in the state's constitutional structure.

But just as you could - with suitable effort - seek to disguise the substance of racial discrimination behind the form of smoke and mirrors operations like Diversity, Equity and Inclusion, no doubt you coud if you tried hard enough, create the substance of an established church while avoiding the explicit form.

But nothing you describe comes within a thousand miles of that. And particularly, what is at stake in this case - allowing a religious school to benefit from state funds on the same terms as secular ones - well it doesn't even pass the straight face test.

(I'm also OK with the free exercise clause, since though religion is not important to me, I know it's very important to other people. And as a liberal minded sort of guy (in the original sense) I'm against the government treading unnecessarily on what people hold dear.)

[Speaking for normal people]

You make a most odd argument that was famously made about Africa years ago and caused huge controversy

New York TImes almost 17 years ago!!

Why Africa Needs God, by an Atheist
December 28, 2008 5:53 pm

Africa | An atheist explains why missionaries (yes) are the solution to Africa’s biggest problem, the crushing passivity of the people’s mindset: With its teaching of “a direct, personal, two-way link between the individual and God,” he says, Christianity “smashes through” tribal groupthink. “That is why and how it liberates.” Money alone won’t do it: “A whole belief system must first be supplanted.” [Times of London]

[hobie]

Religion is so toxic, and the cause of so much human suffering, that I think the Founders probably didn't mean the Church of England exclusively. Nor did I think they wanted the tax money of all the Muslims in Michigan to go to schools who sanction the eradication of Muslims

[Josh R]

It's respecting an establishment of religion. Justice Thomas thinks that bars Congress from interfering (respecting meaning with regards to) with religion. The majority view is it bars government from favoring (respecting meaning giving deference to) religion.

[Speaking for normal people]

No, Josh, we know that is wrong

This is an organic document of our Founding
I want to note the reference to education in Article 3 of the the Northwest Ordinance of 1787:

Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

In his Farewell Address of September 1796, Washington called religion, as the source of morality, "a necessary spring of popular government," while Adams claimed that statesmen "may plan and speculate for Liberty, but it is Religion and Morality alone, which can establish the Principles upon which Freedom can securely stand."

and do drive it all home to people like Molly

The Hebrews have done more to civilize men than any other nation. If I were an atheist [ATHEIST my emphasis ] and believed blind eternal fate, I should still believe that fate had ordained the Jews to be the most essential instrument for civilizing the nations.

John Adams

[Lee Moore]

Thomas is right, and what you state to be the majority view isn't even coherent.

Those things that terrify Molly - like putting bibles in public schools - might (arguably) be said to reflect "respect for religion" (in the deference sense; but they don't reflect "respect for the establishment of religion." The Gideons distribute bibles, but they're not shilling for establishment. Hell, I'm not even religious but I have a certain respect for religion. Establishment - no thank you.

There's too many words to construe in the non-Thomas view. The word "establishment" actually gets in the way of the notion of "respecting (deferring to) religion."

[Josh R]

Of course determining the contours of "respecting the establishment" is a difficult task. Is it endorsement, coercion or something else? But because it is difficult does not imply it is wrong.

On Thomas' view, it would violate the Establishment Clause for Congress to withhold federal funding to public schools who have optional classes in religion. That seems nuts to me.

[Lee Moore]

I don't see anything nuts about it, as a policy matter. Such withholding would be a silly policy, IMHO.

But, as to the text of 1A, I don't see why you think Thomas's view would have any relevance to the question. Again, the text is :

"Congress shall make no law respecting an establishment of religion"

Taking the Thomas view that "respecting" means "with the respect to" or "concerning" - is a law that witholds federal funding to public schools who have optional classes in religion, a law "with respect to" or "concerning" religion ? Sure.

But is it a law "with respect to" or "concerning" the establishment of religion ? Surely not. That's not what "establishment" means.

So I don't think the Thomas view requires us to say that such withholding of funds violates the establishment clause. Obviously if you gloss over "establishment" and simply read "respecting ... religion" then it would violate the establishment clause. That would be the establishment clause with"establishment" in invisible ink !

FWIW it's hard to see that such withholding would violate the free exercise clause either since we're talking about Congress and its relations with public schools, not with private schools or private individuals.

[thenotoriousrbg]

the Gideons aren't pushing a particular denomination, but they're not distributing copies of the Quran or the Bhagavad Gita either. they're explicitly Christian, so (e.g.) funding the Gideons' work would violate the Establishment clause because it privileges Christianity in particular over other religions.

this is why you can have a Comparative Religions class in a public high school, but not a Christian Theology class.

[Lee Moore]

The point has nothing to do with where the Gideons get their money from but whether what they do - handing out bibles - can be said to be "showing deference to the establishment of religion."

As opposed to "showing deference to religion."

Josh's interpretation of the establishment clause requires us to treat the two ideas as the same. Which they obviously aren't.

[Speaking for normal people]

Period dictionaries indicate that the introduction of the participle “respecting” meant “in relation to,” “concerning,” or simply “about.”[40] Hence, under the text, Congress was prohibited from making a law about an establishment. That is, in use of its powers delegated elsewhere in the Constitution, Congress could neither establish religion nor disestablish religion. Hence, the text prevented congressional authority not only from establishing a national religion, but also from hindering or disbanding the remaining state establishments[41]

40]  Donald L. Drakeman, Which Original Meaning of the Establishment Clause Is the Right One? 365, 385 & n.88, in The Cambridge Companion to the First Amendment and Religious Liberty (Michael D. Breidenbach & Owen Anderson eds., 2020) [hereafter Drakeman, Original Meaning]. See also Drakeman, Church, State at 245 n.153 (the argument for a different and even broader definition of “respecting” as meaning “tending toward” is not supported by dictionaries from the period).

[41]  As Congress gathered in April 1789, there remained taxpayer-funded establishments in the New England states of New Hampshire, Connecticut, and Massachusetts (as well as Vermont, soon to be admitted as a state), and to the south there lingered Anglican establishments in South Carolina and Maryland. See Disestablishment and Religious Dissent at 181-201, 327-86, 399-424, 309-26. In 1790, South Carolina adopted a new constitution that removed the last vestiges of its Anglican establishment. Id. at 196. In 1810, Maryland finally removed from its constitution the allowance for a religious assessment. Id. at 320.

[Speaking for normal people]

1777 NY Constitution

the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.

[MoreCurious]

Since you're obviously cutting and pasting your comments from another source, it might help your argument if you cite the original source.

[David Nieporent]

That is, of course, not what the establishment clause of the US Constitution says. "Establishing" a religious institution in the sense of allowing to be created with state funds, is not the same thing as "an establishment of religion." Not even slightly.

I think it is. And far more than slightly.

[Please, Daivd, Seek Help]

> The children of Oklahoma really didn't matter.

You undermine your legal expertise and the substance of your posts by continually injecting flippant and glib commentary. It doesn't come off as catty or funny, it just comes off as bitter and strange...

... is what I would say if this post's actual substance was anything more than you claiming a 'TOLDJA!" to begin with.

[Bob from Ohio]

Its the bottom line. So its an appropriate comment.

[Speaking for normal people]

agreed, treats things very important as a sports bet

[Stuart]

"As I Expected."

So modest you are Josh.

[JoeFromtheBronx]

There would be no opinion, and the Court could focus on more important issues. The children of Oklahoma really didn't matter.

Or the interests of the children warranted leaving the lower court opinion -- from Oklahoma, not exactly a liberal bastion -- in place.

[A Japanese Student]

To be fair, AG Drummond is a unicorn. Without his intervention this lawsuit would have never happened.

[JoeFromtheBronx]

I appreciate his principled take on this issue.

Ultimately, the Oklahoma Supreme Court took the ball and ran with it or whatever.

https://oklahoma.gov/oag/news/newsroom/2025/may/drummond-remarks-on-us-supreme-court-decision-on-st-isidore.html

[David Nieporent]

Um, let's not give him credit for too much principle. He wasn't standing up for the separation of church and state here; his logic was, "If we allow this, then we'd have to allow those dreaded Mooooslims to run public schools too."

[ScottK]

While the AG and Republican state legislators should have common ground on that point, I expect that the (non-lawyer) Republican legislators believe they can fix that when the time comes.

[SRG2]

I think that some on the right handle this by denying that Islam is a religion and so 1A doesn't apply

[David Nieporent]

A significant number do in fact say that, but the less out-of-touch ones know that the courts won't let them get away with that.

[Speaking for normal people]

NO, wouldn't matter, we have as law eg freedom of religion, If a Muslim teaches it is right to kill an apostate or honor killing is okay, he is violating our Biblical founding. Off to the slammer whatever he calle Islam

[Speaking for normal people]

No, David, that was settled LONG AGO.
If you are a Mormon you can think believe or say anything you want about bigamy but if you practice it, legal charges. Same with slavery. We are a Christian nation.

Reynolds v. United States (1879)

whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. . . .

[bernard11]

We are a Christian nation.

We are? I don't see that in the Constitution.

And how does polygamy come into this anyway? No one is talking about violating statutes.

[JoeFromtheBronx]

People afraid of Muslims have supported the other side. I don't think Oklahoma will have too many Muslims taking advantage.

I'm unaware of him having such a simplistic view of the situation. He also flagged problems with the Glossip execution.

It is true that separation of church and state, if done consistently, will protect religious liberty by not having the government support religions you do not like. Whatever that might be.

[bernard11]

OK. But at least his point was correct.

[TPKeller]

Barrett's recusal is absurd. This was an ideological case, whether or not to uphold the First Amendment's provision that we are free to exercise the expression of religion as we the people see fit.

As best I understand, these charter schools are optional, nobody comes to your home at 7 AM every morning, dragging your kids, kicking and screaming, at the point of a gun, off to the charter school for "indoctrination." It's a completely valid use of the taxpayers' money. Or do we so quickly forget the millions of taxpayers who ARE forced - at the point of a gun - to subsidize public schools who teach ideologies that they are opposed to.

The fact that one of the litigants shares an ideology with Barrett is inconsequential. It does not imply partiality. It simply demonstrates Barrett is true to her stated beliefs, in that she associates with people who align with her faith system.

We all know that ideology is one reason (if not THE reason, these days) why justices are nominated. This ruse to recuse is just one way for the other side to "win" on a technicality, when they know they cannot actually win on the merits.

[Speaking for normal people]

FIne statement you make. REASON and many Justices just don't get a whit. Now the kids who would get a load of subjects in a Catholic sertting, get nothing in no setting

[Glaucomatose]

Huh? They get every subject taught in every public school, just like everyone else. They just don't get the state paying for them to be taught that Jesus died on the cross for their sins and that Mary is the mother of God.

[Magnus Pilatus, MBA, MD, JD, PhDx2]

Instead they're taught how to blow older gay men, how to take it in the ass and jerk each other off, how to pretend to be the opposite sex (but only when the parents aren't around), that White people are the devil and if you're White you're automatically a bad person.

Looking at the data, they aren't learning much else.

[Glaucomatose]

Have you ever found that people don't take you seriously?

[Magnus Pilatus, MBA, MD, JD, PhDx2]

When I identify as being serious, you have to validate me as being serious or your violating my civil rights. It's the law in CO where my VPN is located out of, so you're under jurisdiction.

[halbax]

Just because you were taught to blow older gay men and take it in the ass in school doesn’t mean it was school policy.

[Frank Drackman]

I must have missed that day

[Speaking for normal people]

Now you are contradicting the people you align with. In Catholic schools ( I"ve spent 25 years in Catholic schools) the chemistry and algebra are no different. Jesus either did or didnt' die on a Cross and you seem to admit that an answer to that is an important anwer but what does that have to do with Chemistry or Algebra !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

[Glaucomatose]

As best I understand, these charter schools are optional, nobody comes to your home at 7 AM every morning, dragging your kids, kicking and screaming, at the point of a gun, off to the charter school for "indoctrination."

Nobody comes to your home at 9 AM on Sundays to drag you off to church, either - at least not at the point of a gun. Does that mean that taxpayer funding of churches would also be valid?

[TPKeller]

"Does that mean that taxpayer funding of churches..."

Absurd point. There is no law requiring you to attend any church.

[Noscitur a sociis]

“But I did have breakfast this morning!”

[jb]

Barrett's recusal is absurd. This was an ideological case, whether or not to uphold the First Amendment's provision that we are free to exercise the expression of religion as we the people see fit.

Turns out there's also an Establishment Clause in the First Amendment. And it's hard to see how free exercise is burdened here. Does the Constitution promise that people are supposed to get paid to practice their religion in your mind?

[Magnus Pilatus, MBA, MD, JD, PhDx2]

It's found in the same clause that promises people they'll get their abortions paid for.

[TPKeller]

"Turns out there's also an Establishment Clause in the First Amendment."

And charter schools, which are entirely optional, in no way "establish" a state religion.

[jb]

I imagine if you were to establish a state religion, one of the things you would probably do would be to have the state pay for a bunch of schools that instruct the youth in that religion. So while this in and of itself does not establish a religion, the clause is read quite broadly to avoid situations that might trend in that direction. Just like "freedom of association" does not actually appear in the Constitution, it's generally thought of as an important element of what the First Amendment does protect because it's aligned with the freedoms explicitly enumerated therein.

I'm still curious about your theory as to how this decision burdens free exercise, though, since that was your original complaint.

[David Nieporent]

To be clear, you seem to have no idea of the facts here, and are basing your complaint on making up stuff about what Barrett did.

[TPKeller]

I didn't make up the fact that Barrett was recused. My point is that there is no reason for her to have been recused.

[Noscitur a sociis]

And you know that how, exactly?

[David Nieporent]

And my point is that without knowing why Barrett chose to recuse herself, you cannot possibly evaluate whether there was in fact a good reason.

[A Japanese Student]

"so this issue will remain unresolved for some to come."

Not in the Fourth Circuit, at least. See Peltier v. Charter Day School, cert. denied June 26, 2023, case 20-1001 (CA4 2022) (en banc) (holding that charter schools in North Carolina are state actors and, under the Equal Protection Clause, cannot impose sex-dependent dress code).

[MaddogEngineer]

There are two possibilities out there for Barrett's recusal. Could be either, could be both. Not really a mystery.

(Barrett's relationship with a person involved in the litigation, and the issue itself, is more than a bit different than any of Thomas's friendships.)

[grb]

MaddogEngineer : "(Barrett's relationship with a person involved in the litigation, and the issue itself, is more than a bit different than any of Thomas's friendships.)"

By the absence of a corresponding free-flow spigot of cash?

[windycityattorney]

Welp... as far as speculation why she recused...wasn't it one of the catholic school's legal advisors clerked for the US Sup Ct when Barrett did? Then both were professors at Notre Dame? That legal advisor (Nicole Garnett) and her husband help run the Religious Liberty Clinic at Notre Dame?? That person is a close personal and longtime friend of Justice Barrett??

Sometimes even if its not an actual per se conflict of interest; the *appearance* of a conflict interest could muddle the legitimacy of the Court if..say... Barrett didn't recuse, she votes for the taxpayer funding of the school and her vote tips the balance to a 5-4 reversal of the Oklahoma Sup Ct.

Unlike Thomas and Alito..maybe she does take perceived conflicts of interest more seriously and didn't want to have to deal with the backlash. OR maybe..given her own highly publicized religious faith she felt that she couldn't be objective? Or maybe her best friend discussed these types of legal issues with Justice Barrett at the religious liberty clinic before Justice Barrett got nominated to the Court? What if Justice Barrett formulated the legal strategy ultimately employed to get the case to the US Sup Ct??? It doesn't take much imagination to think Justice Barrett was just being cautious given the personal connections. Overly cautious? Yes perhaps. Is it a bad thing to be cautious to avoid controversy when you sit on the US Sup Ct? No. I don't think so.

[Speaking for normal people]

If highly publicized religious faith is a problem why isn't highly publicized lack of faith or a different faith. That's a goofy attempt to be analytical

[windycityattorney]

The faith in question is the same faith that Ms Garnett and Notre Dame profess. The same faith that the school/petitioner is. I am not saying 'being catholic' makes it impossible to be objective in any case involving the catholic religion justifying recusal. For instance, I am not arguing being catholic alone would *require* Alito to recuse in this case (and of course he didn't).

That is clearly not what is being argued. I am tying her particular brand of faith into the other factors noted with respect to her close friend Garnett and I am not even conceding Justice Barrett needed to recuse here. I don't see a per se conflict as Mrs Garnett is not counsel of record for the catholic school litigant and if she was...it's likely not a per se conflict requiring recusal. BUT THE APPEARANCE OF CONFLICT is sometimes a valid reason to recuse at all levels. Since justices don't have to state a reason why they recuse; we likely won't find out why Justice Barrett did so here unless she shares that information herself.

Sheesh. Take a single sentence out of context why don't ya.

[Stella Link's Ghost]

"Sheesh. Take a single sentence out of context why don't ya."

To rephrase the question:
If highly publicised bias is a problem, why not highly publicised neutrality?

[benz]

Congratulations Josh! Big day for you!

[John 4]

XD

[JoeFromtheBronx]

Barrett did not state why she did not participate in the case. But the charter school was represented at the Supreme Court by the religious liberty clinic at Notre Dame’s law school, where Barrett taught for 15 years before becoming a federal judge and later a justice. And Nicole Stelle Garnett, who is a law professor at Notre Dame and a leading advocate for allowing the use of public funds at religious schools, is a close friend of Barrett’s. Barrett is godmother to one of Garnett’s children.

https://www.scotusblog.com/2025/05/split-supreme-court-blocks-first-religious-charter-school-in-oklahoma/

I think it is helpful when a judge says why they are recused. The liberal justices have begun to say why, though in a vague enough way that it is still somewhat unclear regarding the specifics. That is, they might note previous government service or whatever, without providing the exact specifics of their line drawing.

Simply put, Barrett's recusal here seems warranted. What exactly is necessary to require that -- let's say, if she didn't have as much of a personal connection to the advocate -- is a closer question.

Justice Jackson recused in a case involving Harvard University’s race-conscious admissions policy. Jackson attended Harvard as both an undergraduate and a law student, and was a member of Harvard’s board of overseers.

An extended stint as a professor at Notre Dame seems to warrant recusal if the case still has a significant connection to that institution. If nothing else, clarity should be present to provide clear rules so that future litigants are aware of likely recusals.

[windycityattorney]

+1