The current Supreme Court majority has cleared away a lot of nonsense in how the First Amendment addresses religious liberty and what counts as the forbidden “establishment” of a government church. A good deal of the action has been in school choice.

In Espinoza v. Montana Department of Revenue (2020), it allowed Montanans to use generally available private-education tax credits for religious as well as non-religious schools, striking down the anti-Catholic Blaine Amendments. In Carson v. Makin (2022), the Court ruled 6–3 that tuition vouchers for children in rural areas without their own public school could be used for a religious school. Shortly thereafter, the Court formally overruled Lemon v. Kurtzman (1971) and its gaseous test for striking down any government action that seemed “entangled” with religion.

In 2023, Oklahoma decided to test the next step: the Oklahoma Statewide Virtual Charter School Board approved the application of the St. Isidore of Seville Catholic Virtual School to become the nation’s first taxpayer-funded Catholic charter school. The usual suspects went nuts. The state’s Republican attorney general, John O’Connor (an appointee of Governor Kevin Stitt), cleared the decision, but he then lost in a primary to Gentner Drummond, who was critical of Stitt and attacked O’Connor mostly over Native American litigation issues arising from McGirt v. Oklahoma. Drummond has fought the school board decision in court, and in June 2024, the Oklahoma Supreme Court ruled that the decision violated the establishment clause on the grounds that the charter school “will function as a component of the State’s public school system.”

This afternoon, the Supreme Court granted certiorari to hear the case, consolidating two petitions from the board and the school. It set a briefing schedule to be completed in April, which sets it to be decided by the end of this term. The bad news: Justice Amy Coney Barrett recused from the case. Notre Dame Law School’s religious liberty clinic has been representing the school, and while the justices typically do not announce reasons for recusal, that seems too close a tie for her to feel comfortable on the case.