A divided Supreme Court failed to reach a consensus in a dispute over whether the state of Oklahoma could use government funds to run a religious charter school. The justices’ failure to resolve the matter left the Oklahoma Supreme Court ruling in place, effectively prohibiting the establishment of the publicly-funded religious charter school. This case implicates the First Amendment’s religion clauses.

What is this case about?

• In 2023, the Oklahoma Statewide Charter School Board greenlit the creation of the St. Isidore of Seville school, a virtual Catholic charter school.
• Charter schools are public, tuition-free institutions that receive government funding but operate independently from traditional public school districts. Oklahoma law requires charter schools to be “nonsectarian in its programs, admission policies, employment practices, and all other operations.”
• Oklahoma’s Republican Attorney General Gentner Drummond filed a lawsuit seeking to invalidate the school’s contract with the state.

What happened in the courts?

• The Oklahoma Supreme Court invalidated the school’s agreement with the state because it violated the First Amendment, the Oklahoma Constitution, and Oklahoma law. 
• The court wrote that the charter school unconstitutionally and unlawfully uses “public money for the establishment of a religious institution.”
• In her dissent, Justice Dana Kuehn argued that barring the state from contracting with a religious school would violate the First Amendment’s Free Exercise Clause. Kuehn wrote, “By allowing St. Isidore to operate a virtual charter school, the State would not be establishing, aiding, or favoring any particular religious organization. To the contrary: Excluding private entities from contracting for functions, based solely on religious affiliation, would violate the Free Exercise Clause…”
• St. Isidore of Seville and the Oklahoma agency petitioned the Supreme Court to overturn the state court ruling.

What are the First Amendment’s Establishment and Free Exercise Clauses?

• The First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” 
• The Establishment Clause prohibits the government from denoting an official religion, as well as unduly favoring one religion over another or favoring religion over non-religion. 
• The Free Exercise Clause bars the government from impinging on an individual’s ability to practice their religion.
• The Supreme Court has acknowledged a tension between the two clauses, as the Establishment Clause bars government support of religion while the Free Exercise Clause protects against government hostility toward it.

How has the Supreme Court ruled in recent cases about religion in schools?

• In the landmark Lemon v. Kurtzman decision in 1971, the Court created a three-part test for analyzing Establishment Clause challenges. This became known as the “Lemon Test.” To be found constitutional, a law must:
  • “Have a secular legislative purpose”;
  • Have a “principal or primary effect…that neither advances nor inhibits religion”; and
  • “Not foster ‘an excessive government entanglement with religion.’” 

• However, the justices have moved away from this test in recent years. In 2022, writing for the majority in Kennedy v. Bremerton School District, a case brought under the Free Exercise Clause, Justice Neil Gorsuch wrote that the Court had “abandoned Lemon and its endorsement test offshoot,” and instead adopted “an analysis focused on original meaning and history.” In that case, the justices held that the First Amendment protected a public school football coach’s right to pray on the field after games.
• In the 2020 case  Espinoza v. Montana Department of Revenue and the 2022 case  Carson v. Makin, the justices ruled that states could not exclude private religious school students from tax credits and tuition payment programs, respectively, that were available to secular private schools.
• In 2017, the Court said the state of Missouri violated the Free Exercise Clause by excluding a religious school from a playground renovation program.

What did the Supreme Court decide in the current case?

• In a brief order, the Court announced that the justices deadlocked at 4-4. Only eight justices took part in this case. Justice Amy Coney Barrett recused from the matter. She did not explain her reasoning, but it likely has to do with her connection to Notre Dame Law School. The justice taught at the school for 15 years before becoming a judge, and the school’s religious liberty clinic is representing the charter school in this case.
• Since no majority was reached, the state court’s decision (here, the Oklahoma Supreme Court ruling that invalidated the religious charter school) stands. 

How did the justices vote?

• The Court did not publicly list how each justice voted, but their comments from oral arguments provide insight into the most likely scenario.
• The Court’s three liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, appeared to be safe votes against the religious school, while the Court’s three most conservative justices, Clarence Thomas, Samuel Alito, and Neil Gorsuch, were safe votes for the religious school. Justice Brett Kavanaugh, another conservative voice—yet an occasional swing vote—also indicated support for the religious school.
• That leaves Chief Justice John Roberts. Roberts sided with the religious schools in the recent cases outlined above, but his comments during this hearing indicate he might have viewed this dispute differently. For example, he described using public funds to run a religious charter school as “much more comprehensive [state] involvement” in religion than examples like the playground renovation program. Roberts appears to be the most likely fourth vote against the religious school.

What happens next?

• Without a majority ruling from the Supreme Court on the merits of the claim, it lacks precedential value.
• The Oklahoma Supreme Court ruling remains current law, but it applies only in that state.
• This issue will likely arise again soon.