Leonard Leo is one of the most powerful people in the nation. Get to know him. He led the conservative lawyer’s group The Federalist Society. He personally prepared the list of judges for Trump’s selection to the Supreme Court. He can take credit for the appointment of dozens of federal judges in district courts and appellate courts. In tribute to his effectiveness, a Chicago businessman gifted him with $1.6 billion to use as he wished to advance conservatism.
Politico reports that Leonard Leo’s latest cause is promoting religious charter schools, which would be fully funded by the public. The target, which he hopes to demolish, is 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…
“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 legal nonprofit named after a Catholic martyr where Leo sits on the board: the Becket Fund for Religious Liberty.
The clinic itself was announced a few monthsbefore 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….
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 administrationover 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 studythat 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.
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