10 months ago
Groups aligned with the conservative legal movement and its financial architect, Leonard Leo, are working to promote a publicly funded Christian school in Oklahoma, hoping to create a test case to change the Supreme Court’s interpretation of the First Amendment’s separation of church and state.
At issue is the Roman Catholic Archdiocese of Oklahoma’s push to create the St. Isidore of Seville Catholic Virtual School, which would be the nation’s first religious school entirely funded by taxpayers. The school received preliminary approval from the state’s charter school board in June. If it survives legal challenges, it would open the door for state legislatures across the country to direct taxpayer funding to the creation of Christian or other sectarian schools.
Brett Farley, executive director of the Catholic Conference of Oklahoma, acknowledges that public funding of St. Isidore is at odds with over 150 years of Supreme Court decisions. He said the justices have misunderstood Thomas Jefferson’s intent when he said there should be a wall separating church and state, but that the current conservative-dominated court seems prepared to change course.
“Jefferson didn’t mean that the government shouldn’t be giving public benefits to religious communities toward a common goal,” he said. “The court rightly over the last decade or so has been saying, ‘No, look, we’ve got this wrong and we’re gonna right the ship here.’ ”
Behind the effort to change the law are Christian conservative groups and legal teams who, over the past decade, have been beneficiaries of the billion-dollar network of nonprofits largely built by Leo, the Federalist Society co-chairman.
Leo’s network organized multi-million-dollar campaigns to support the confirmation of most of the court’s six conservative justices. Leo himself served as adviser to President Donald Trump on judicial nominations, including those of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
Leo’s multiple hats in recruiting judicial nominees, using his non-profit war chest to promote their confirmations and then funding legal organizations to craft challenges to longstanding court precedents, has drawn increasing criticism.
“The Christian conservative legal movement, which has its fingerprints all over what’s going on in Oklahoma, is a pretty small, tight knit group of individuals,” said Paul Collins, a legal studies and politics professor at the University of Massachusetts Amherst. “They recognize the opportunity to get a state to fund a religious institution is a watershed moment,” said Collins, author of Friends of the Supreme Court: Interest Groups and Judicial Decision Making, adding that “They have a very, very sympathetic audience at the Supreme Court. When you have that on the Supreme Court you're going to put a lot of resources into bringing these cases quickly.”
In Oklahoma, the legal team representing the state’s virtual charter school board, the Alliance Defending Freedom, helped develop arguments that led to the end of Roe v. Wade. It is significantly funded by donor-advised funds that allow their patrons to keep their identities secret but which receive large amounts of money from Leo-aligned groups.
They include Donors Trust, often called the “dark money ATM” of the conservative movement. In recent years, Donors Trust has been the largest single beneficiary of Leo’s primary dark money group, the Judicial Education Project. Donors Trust, in turn, gave $4 million to Leo’s Federalist Society in 2022, according to the IRS filings.
Since 2020, when Leo received a $1.6 billion windfall from Chicago electronics magnate Barre Seid, among the largest contributions to a political advocacy group in history, other groups funded by Leo’s network have become substantial contributors to ADF. For instance, Schwab Charitable Fund, which has given at least $4 million to ADF, received $153 million in 2021 from a new Leo-aligned nonprofit that received the Seid funding.
ADF Senior Counsel Phil Sechler said in an emailed statement that his group is defending the board “in order to ensure people of faith are not treated like second-class citizens.” Sechler, who said he “cannot predict” whether the case will land at the Supreme Court, did not comment on the group’s funding.
St. Isidore is represented by the Notre Dame Religious Liberty Initiative, a legal clinic created by the law school at the University of Notre Dame. At Notre Dame, law professor Nicole Stelle Garnett has worked with St. Isidore from the start of its application process.
In the same timeframe, Garnett joined the board of the Federalist Society, where Leo is co-chairman. She also joined the advisory council of a Catholic University law school initiative funded by a $4.25 million anonymous gift directed by Leo, according to a March 2021 press release. Justice Samuel Alito is its honorary chairman.
The Notre Dame clinic’s director is another alumni of Leo’s network, Stephanie Barclay, an attorney who spent multiple years at another Christian legal nonprofit where Leo sits on the board: the Becket Fund for Religious Liberty.
The clinic itself was announced a few months before the confirmation of Barrett, who was a Notre Dame law professor for 15 years. The June, 2020, announcement of the clinic’s creation stated that Barclay would take a leave of absence to clerk for Gorsuch during the same time period — 2021 and 2022 — that the group was working with the Oklahoma archdiocese on its St. Isidore application. In June of 2022, the court also overturned Roe; a month later, the clinic funded a trip for Justice Alito to be feted at a gala in Rome.
Clinic spokeswoman Kate Monaghan Connolly declined to say if Barclay has done any work on behalf of St. Isidore, including before, during or after her clerkship. The clinic declined comment on its funders.
The clinic “has defended the freedom of religion or belief for all people across a wide variety of projects,” including Jews, Muslims, Sikhs and an Apache tribe, said Monaghan.
As St. Isidore and its allies readied for legal battle, Farley said, Notre Dame brought in a corporate team at the law firm Dechert LLP, including Michael McGinley, who worked on selecting judicial nominees at the Trump White House at the time Leo was advising the president. McGinley clerked for Gorsuch when he was a 10th Circuit appeals judge and for Alito at the Supreme Court. He accompanied Gorsuch to his confirmation hearings. He is not employed by Notre Dame, said Connolly. He is working “pro bono” for St. Isidore, Farley said.
Within Notre Dame, the effort’s biggest champion has been Garnett, Barrett’s friend of 20 years, former law school colleague and former neighbor. The two met in 1998 when Garnett was a clerk for Justice Clarence Thomas and Barrett for Justice Antonin Scalia. Since then, their lives have been “completely intertwined,” Garnett wrote in a USA TODAY editorial.
In December of 2021, the clinic announced it was adding Brendan Wilson, a nonprofit and corporate tax attorney whose clients have included religiously affiliated schools, to its legal team. The previous May, Wilson had purchased Barrett’s South Bend home for $905,000, a deal that came under media scrutiny given that the clinic had begun to advocate before the court by filing amicus briefs.
Wilson was taking up an adjunct role handling the “transactional component” of the clinic, the announcement said.
Both Garnett and Wilson, through Connolly, declined to comment on whether they’ve discussed the case with any of the justices, and Barrett in particular.
“It is a privilege to assist St. Isidore, which will enhance educational pluralism and promote high-quality education opportunities, especially for underserved communities in Oklahoma,” Garnett said in an email response.
Those backing the St. Isidore application face a formidable array of critics and opponents. Charter schools are required by Oklahoma statute to be non-sectarian, and in its application, the archdiocese says the school would be part of the “evangelizing mission of the Church.”
Oklahoma Attorney General Gentner Drummond, a Republican, says the proposed school violates both the U.S. and the state Constitution, and he is suing to stop it. Separately, a group of 10 plaintiffs including public school parents and faith leaders represented by groups including Americans for Separation of Church and State filed a lawsuit warning that the creation of the school will erode a pillar of American democracy: the wall of separation between church and state.
The plaintiffs in that case are calling on the Oklahoma judge presiding over it, C. Brent Dishman, to recuse himself. Dishman sits on the board of the College of the Ozarks, an evangelical college that was represented by ADF in a suit against the Biden administration over transgender bathroom policy.
The school’s detractors say the national implications of the dispute are not getting enough attention. They include Melissa Abdo, a practicing Catholic and school board member in Jenks, Oklahoma, and Robert Franklin, a Republican-appointed member of a state virtual charter school board who last summer voted against the school’s application.
If the law were to allow public funding of religious schools, legislatures in conservative states would come under immediate pressure to help bail out troubled religious school systems: Catholic and Protestant churches are shuttering due to significant declines in church attendance and financial support as Americans become increasingly secular.
The 1.8 million-student Catholic education system received a lifeline through the Supreme Court’s 2022 decision in the case of Carson v. Makin, which required states with voucher systems to help students afford private schools to allow the money to be spent on religious academies. The influx of public money was already helping the Catholic Church to stave off parish closings, according to a 2017 National Bureau of Economic Research study that called vouchers “a dominant source of funding for many churches.”
“It’s not about the 500 kids. The game is to get this to the Supreme Court,” said Franklin. “If the court approves this, it changes everything” about public education in America, he said.
“It’s been extremely unsettling,” said Franklin, noting that the state already has six virtual schools to serve children of all faiths and that some of the school’s biggest backers, including Oklahoma Gov. Kevin Stitt, had previously bashed virtual learning as ineffective.
As a Catholic whose mother taught underserved children, Abdo said she felt compelled to offer her name as a plaintiff opposing the St. Isidore proposal.
“I decided I had to show this wasn’t an anti-Catholic effort,” said Abdo, whose youngest daughter attends catechism and will be confirmed in May. “I don’t understand why the Catholic Church thinks we should ask other people to pay for their faith education and I don’t think Catholics would want to pay for the education of other faiths.”
The Oklahoma Catholic Church and its allies argue the archdiocese has a First Amendment right to seek public funding for its own charter school since the state already supports religious schools via vouchers, said Farley, who is also a former state GOP party communications director.
“You’ve got state dollars going to expressly religious schools for the purpose of educating them in a religious environment,” he said. “What percentage of funding crosses the line?”
Both sides agree that the case is likely to eventually land before the Supreme Court, and its outcome will reshape the tapestry of America well beyond the domain of public education.
“Our hope is that it would be the final chapter in this long debate over whether and how religious communities will collaborate with state governments,” said Farley, noting that federal Medicare dollars already go to Catholic hospitals and Catholic charities collaborate with the government on disaster relief.
Leo spokesman Adam Kennedy declined to comment.
Throughout his career building his nonprofit network, Leo has remained rigorously behind the scenes, rarely taking on a public role. But in 2022 he spoke openly about his belief that Christians are under siege, with Catholics in particular facing threats and violence. He called for a “new evangelization” in response.
“No question, Catholicism faces vile and immoral current day barbarians, secularists and bigots. These barbarians can be known by their signs. They’ve vandalized and burned our churches after the Supreme Court overturned Roe v Wade,” Leo said at a 2022 John Paul II New Evangelization awards ceremony.
“From coast to coast, they are conducting a coordinated and large-scale campaign to drive us from the communities they want to dominate,” Leo said at the event. It was hosted by the Catholic Information Center, a downtown Washington D.C. chapel and meeting place for influential conservatives led by a priest of Opus Dei, an ultra-conservative prelature of the Catholic Church, and for which Leo sits on the board.
Yet there is reason for hope, said Leo: “Amongst the politically active, there is a marked increase in Catholic identity. That includes a growing number of Catholic commentators in the secular media, greater opposition to government efforts to regulate Catholic schools and significant opposition to same-sex marriage.”
Like Catholic University in Washington, Notre Dame has been a prime focus of his attention. While the clinic said in its statement that it has not taken money from a couple of Leo’s primary nonprofits, Leo has indirectly and directly contributed to the university’s projects. Leo sits on the board of the Napa Institute Support Foundation, which has steadily increased its gifts to the university from $37,500 in 2019 to $150,000 in 2022. Leo joined the board in 2018.
In 2021, he personally donated to an effort by the Napa Institute to establish “programs on priestly formation” and a lecture series at Notre Dame that hosted Justice Thomas as its first speaker.
The personal connections to St. Isidore’s legal teams extend to the court’s conservative justices, including Thomas and Barrett.
Garnett has given testimonials about her 20-year friendship with Barrett, who is the godmother of one of Garnett’s daughters. She wrote a letter to the Senate supporting Barrett in October of 2020. Garnett has also hosted Thomas and his wife, Virginia, at her home in South Bend, Indiana, according to a person with knowledge of at least one visit.
In recent years, the court’s conservative majority has increasingly sided with religious plaintiffs, marking a reversal from its past enforcement of strict boundaries between religion and public life.
Across the Warren, Burger, and Rehnquist Courts — spanning about 50 years of court decisions — the religious side typically consisted of religious minorities such as Jehovah’s Witnesses or Orthodox Jews alleging discrimination. They prevailed about half the time, with gradually increasing success, according to University of Southern California Prof. Lee Epstein, who studies win rates before the court.
Under the Roberts Court, which began in 2006, the religious plaintiffs and parties are overwhelmingly mainstream Christians and the win rate has jumped to 86 percent, according to Epstein, who updated her research data at POLITICO’s request. “This may be a manifestation of this [Leo’s] funding” network, she said.
For its part, ADF boasts an 80 percent overall win rate and 15 Supreme Court victories, including overturning Roe.
Both Nicole Garnett and her husband Richard W. Garnett, who is also a professor at Notre Dame and part of the clinic, filed briefs in support of the petitioners in Carson v. Makin. In that June, 2022 decision, Barrett and the court’s conservative majority ruled that taxpayers are required to fund religious school instruction if they also offer vouchers for other private schools.
In her dissent, Justice Sonia Sotomayor observed the ruling “leads us to a place where separation of church and state becomes a constitutional violation.”
As the court prepared, in the summer of 2021, to hear arguments in Carson v. Makin, religious activists were drawing up plans for St. Isidore, which would be fully funded by the public.
Farley says he connected with Notre Dame and Nicole Garnett through a “national school choice organization” which he declined to name. Garnett said in an email that it was the Oklahoma archdiocese that reached out to her for advice when it “began to explore expanding the reach of Catholic education in Oklahoma.”
Regardless of how the initiative started, its advocates speak openly that St. Isidore is a national model.
“More states ought to follow Oklahoma’s lead,” Richard Garnett said in a story touting the effort featured on the law school’s website earlier this year.
The school’s champions include Oklahoma Superintendent Ryan Walters, who has endorsed holding a minute of silence for prayer in public schools and requiring a framed copy of the Ten Commandments in classrooms. He’s posted a series of similar videos attacking President Joe Biden’s “woke agenda,” transgender students and critical race theory.
It is “incredibly important” that churches are given the “freedom to grow,” he said in a video last summer. “It was churches that started the first schools in the country.”
While conservatives are eager to embrace St. Isidore as a legal test case, liberals are equally wary, given the conservative make-up of the Supreme Court.
“Schools are the last bastion of church-state separation, and they have been the target of Christian nationalists and the shadow network for decades,” said Andrew Seidel, author of American Crusade: How the Supreme Court is Weaponizing Religious Freedom, who is part of the lawsuit by Americans for Separation of Church and State.
“That’s why it’s so striking. In 2022, they got a change in the personnel on the court thanks to Leo.”
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