WASHINGTON — Oklahoma will not be able to launch the nation’s first ever religious public charter school after the Supreme Court on Thursday deadlocked 4-4 in a major case on the separation of church and state.
The decision by the evenly divided court means that a ruling by the Oklahoma Supreme Court that said the proposal to launch St. Isidore of Seville Catholic Virtual School violates both the federal Constitution and state law remains in place.
As there was no majority, the court did not issue a written decision, and the case sets no nationwide precedent on the contentious legal question of whether religious schools must be able to participate in taxpayer-funded state charter school programs.
A key factor in the outcome was that conservative Justice Amy Coney Barrett, who would have been the deciding vote, did not participate in the case. She did not explain why, but it is likely because of her ties with Notre Dame Law School. The law school’s religious liberty clinic represents the school.
The one-page decision did not say how each justice voted. During oral arguments last month, most of the court’s conservatives indicated support for the school while liberals expressed concern. At least one conservative is likely to have sided with the liberals, most likely Chief Justice John Roberts.
The court will likely be asked to weigh in on the issue in future cases.
St Isidore would have operated online statewide with a remit to promote the Catholic faith.
The case highlights tensions within the Constitution’s First Amendment; one provision, the Establishment Clause, prohibits state endorsement of religion or preference for one religion over another, while another, the Free Exercise Clause, bars religious discrimination.
The Oklahoma Supreme Court had cited the state’s interest in steering clear of Establishment Clause violations as a reason not to allow the proposal submitted by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa to move forward.
A state board approved the proposal for St. Isidore in June 2023 despite concerns about its religious nature, prompting Oklahoma Attorney General Gentner Drummond to file suit.
The case saw Drummond on the opposite side to fellow Republicans in the state who backed the idea, but he prevailed at the Oklahoma Supreme Court the following year.
The Supreme Court, when Barrett is participating, has a 6-3 conservative majority that often backs religious rights. In recent years it has repeatedly strengthened the Free Exercise Clause in cases brought by conservative religious liberty activists, sometimes at the expense of the Establishment Clause. Some conservatives have long complained that the common understanding that the Establishment Clause requires strict separation of church and state is incorrect.
Lawyers representing the school and the Oklahoma Statewide Charter School Board sought to portray the dispute as similar to a series of recent rulings in which the court has said that under the Free Exercise Clause states cannot bar religious groups from government programs that are open to everyone else.
The push for religious public charter schools dovetails with the school choice movement, which supports parents using taxpayer funds to send their children to private school. Public school advocates see both efforts as broad assaults on traditional public schools.
