Separation of Church and State Scored a Surprise Reprieve at the Supreme Court

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The Supreme Court deadlocked on one of its biggest cases of the term on Thursday, delaying—for now—another blow to the separation of church and state. The 4–4 split left in place a lower court decision prohibiting the creation of a taxpayer-funded Catholic charter school in Oklahoma. But this legal battle is far from over: The court will almost certainly revisit the issue in a future case when no justice is recused. And when it does, the majority seems likely to rule that the First Amendment requires states to establish and fund religious charter schools. Still, Thursday’s divided ruling is a welcome reprieve from the Supreme Court’s crusade to dismantle secular public education in America.

On a more rational court, Oklahoma Statewide Charter School Board v. Drummond would not have been close at all. The case revolves around St. Isidore’s, a proposed Catholic school that seeks to participate in Oklahoma’s charter program. By its own admission, St. Isidore’s would indoctrinate students in the Catholic faith, and reserves the right to discriminate against students and teachers who do not share those beliefs. It would compel students to attend mass and abide by Catholic doctrine at the risk of expulsion. Despite St. Isidore’s religious nature, Oklahoma certified it as a public charter school, granting it access to public funds. In response, the state’s attorney general—Gentner Drummond, a Republican—filed suit in the Oklahoma Supreme Court, citing a violation of the state constitution. The Oklahoma Supreme Court sided with Drummond and blocked the school’s approval as a charter, prompting an appeal to SCOTUS.

At oral arguments in April, it was clear that at least four conservative justices believed that St. Isidore had a right, under the First Amendment’s free exercise clause, to secure public funding. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh sounded convinced that the exclusion of religious schools from the charter system amounted to unconstitutional discrimination against religion. But they had a problem: Justice Amy Coney Barrett recused herself, apparently because she is close friends with a key lawyer on the case. And Chief Justice John Roberts sounded a tad wobbly during arguments, asking a handful of questions that indicated discomfort with the breadth of St. Isidore’s constitutional claims.

It now appears that Roberts did, indeed, defect from the conservative bloc, siding with the three liberals. (When the court deadlocks, it does not say how each justice voted, but no other conservative seemed skeptical of the school’s arguments.) Under the court’s long-standing rules, this stalemate resulted in an automatic affirmance of the Oklahoma Supreme Court’s decision without creating new precedent. But it did not put off the underlying question forever: A different state will probably approve another religious charter school, engineering a new test case from which no justice will have to recuse. When that occurs, SCOTUS will get another opportunity to declare that the First Amendment forces states to certify and fund religious education.

If it was Roberts who flipped, his move comes as a bit of a surprise, though not an outright shock. The chief justice wrote all three opinions that gradually expanded states’ constitutional obligation to fund Christian schools. St. Isidore’s lawyers argued that the logic of these cases also requires states to invite these schools into their charter programs, effectively incorporating religious institutions into their public education system. But past cases involved subsidies for truly private schools—playground refurbishments, tax credits, and tuition assistance. St. Isidore’s sought a radical expansion of this precedent by demanding direct public funding for the proselytization of students. Roberts was dubious: “This does strike me as a much more comprehensive involvement” between the government and the school, he said, than in past cases. He also sounded dubious of St. Isidore’s assertion that it deserved this money because, despite its quest for charter status, it would still operate as a “private” institution. Highlighting Oklahoma’s extensive control over the curriculum, Roberts questioned whether there was “too much state involvement” to view St. Isidore as anything other than a public school.

These concerns may have carried the day for the chief justice. The big question now is whether Barrett will share his hesitation in the future when the next “religious charter” comes before the court. The network of Christian lawyers who manufactured this case will have little trouble persuading another state to adopt their experiment, and can surely avoid involvement by any of Barrett’s friends next time. Barrett, a devout Catholic herself, is a staunch proponent of religious liberty and reliable foe of church–state separation; she has long favored an interpretation of the First Amendment that expands the right of religious people and institutions to secure accommodations and taxpayer support. In a different case this term, she appears poised to join the majority in giving religious parents of public school students a broad right to shield their children from exposure to LGBTQ-themed books. There is little reason to think she would pass up the future opportunity to greenlight Catholic charter schools. (A cynic might hope that a blue state will invite a madrasa to participate in its charter program to remind the conservative justices that it’s not only Christians who would benefit from this regime, a point Justice Elena Kagan raised at arguments.)

For the time being, however, Thursday’s decision is as big a victory as anyone can expect from this court for the separation of church and state. The conservative majority has been marching ineluctably toward a future in which there is no barrier between the government and religion—where, in fact, the Constitution requires the constant intermingling of the two. It has used public education as its main vehicle, diverting more and more money away from secular schools toward Christian academies. For the first time in years, that drive has faced a real setback. It may not last long. But it shows that the momentum is not entirely unstoppable.