Surprise!
The religious right just suffered a rare setback in the Supreme Court
One of the GOP justices must have defected in a case about religious schools, but the Court didn’t reveal who it was.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The Supreme Court announced on Thursday that it is unable to decide a case asking it to force states to fund religious charter schools. The justices split 4-4 in Oklahoma Statewide Charter School Board v. Drummond, with Justice Amy Coney Barrett recused. That means that an Oklahoma Supreme Court decision holding that the state should not and cannot fund a Catholic charter school stands, and there can be no religious public schools — for now.
At oral arguments in Oklahoma, this case appeared likely to be the latest in a series of Supreme Court decisions mandating government funding of religious education. Most notably, in Carson v. Makin (2022), the Court held that states that offer private school tuition vouchers must allow those vouchers to be used to pay tuition at religious schools.
Oklahoma involved a proposed charter school known as St. Isidore of Seville Catholic Virtual School, which hoped to become the first religious public school in the country. While Carson held that states that fund private education must include religious schools in that funding, charter schools are considered public under both Oklahoma and federal law. Both federal law and the laws of 46 states also require charter schools to be non-religious.
Though Thursday’s nondecision in Oklahoma means that this long-standing regime guaranteeing public schools remain secular institutions is still in effect, it is far from clear whether this regime will last. Though Barrett, a Republican who voted in the majority in Carson, did not say why she recused herself from the Oklahoma case, USA Today notes she “is close friends with the Notre Dame Law School professor who was an early legal adviser to the Catholic Church in Oklahoma.” Before joining the bench, Barrett was a tenured professor at Notre Dame’s law school.
It is likely that proponents of religious charter schools will simply try again to create such a school, this time without doing so in a way that causes Barrett to recuse. If Barrett is present for those future arguments and applies similar reasoning to the decision she joined in Carson, she could easily be the fifth vote for religious charter schools.
The Court also did not reveal in its very brief order resolving the Oklahoma case how each justice voted, but based on their past decisions and their comments at oral arguments in Oklahoma, it is extremely likely that all of the Court’s three Democrats voted against allowing religious public schools. That means one of the five Republicans who were not recused from this case, all of whom joined the majority in Carson, defected. Because none of the justices explained why they voted as they did in Oklahoma, we also do not know why this defection happened.
In any event, Thursday’s nondecision means that the status quo remains in effect. Religious charter schools remain unlawful, for now. But it is far from clear whether they will remain so in the future.
