“The religious right just suffered a rare setback in the Supreme Court,” Ian Millhiser wrote last week on Vox.
He was describing the U.S. Supreme Court’s May 22nd ruling in Oklahoma Statewide Charter School Board v. Drummond, a case in which the Oklahoma Supreme Court held that chartering St. Isidore of Seville Catholic Virtual School violates the Establishment Clause of the First Amendment.
But is that really what happened? Let’s look at the case.
Charter schools are a growing movement in American education, with an estimated 7,800 public charter schools educating approximately 3.7 million children. Chartered by the state, these schools are organized and run by private individuals or organizations. They receive both state and private funding, and often have a field of specialty, such as arts, science or vocational training.
In Oklahoma, the Statewide Charter School Board agreed to charter St. Isidore Catholic Virtual School, marking the first time a Catholic school has become a charter school. But Oklahoma Attorney General Gentner Drummond filed a writ of mandamus against the Board, directing it to rescind its contract with St. Isidore, arguing that their action violates the Establishment Clause. This pitted the attorney general against the State of Oklahoma and many state officials, including Gov. Kevin Stitt, who supported the Board’s decision. Although Drummond and Stitt are both Republicans, they disagree on the meaning of the First Amendment.
The Oklahoma Supreme Court ruled that chartering St. Isidore would involve state aid to a religious school in violation of the Oklahoma Constitution and the U.S. Constitution, and Oklahoma appealed to the U.S. Supreme Court. Each state supreme court is considered the final interpreter of its own state constitution and laws. Perhaps because Oklahoma follows the “Missouri plan,” by which judges are appointed rather than elected and then subject only to retention votes rather than reelection, the Oklahoma judiciary is considerably more liberal than Oklahoma as a whole.
The U.S. Supreme Court may not reverse the Oklahoma Supreme Court on its interpretation of the Oklahoma Constitution, unless that interpretation violates a provision of the U.S. Constitution. But it can certainly review the federal constitutional issues. And it could have ruled that, by discriminating against St. Isidore, the Oklahoma Supreme Court has violated St. Isidore’s right to free exercise of religion and equal protection under the law.
The Foundation for Moral Law, for which I serve as Senior Counsel, filed an amicus brief with the Supreme Court in support of Oklahoma. We hoped the Court would follow its path in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) and hold that if the state provides aid to private education, it cannot single out a school for exclusion solely because that school is religious.
But it was not to be. Last week, in a 4-4 decision, the U.S. Supreme Court let the Oklahoma Supreme Court decision stand.
What happened? First, Justice Barrett, the last of the three Trump appointees, recused herself from the case. She didn’t give a reason and wasn’t required to, but it likely relates to her close association with a fellow Notre Dame law professor who advised Oklahoma on the case. Had she not recused, she probably would have tipped the scale in favor of Oklahoma and St. Isidore.
That left the three liberal justices (Kagan, Sotomayor and Jackson) likely to side with Drummond, the two reliably conservatives (Thomas and Alito) likely to side with Oklahoma, and the moderate conservatives (Roberts, Gorsuch and Kavanaugh) holding the balance. A per curiam opinion typically provides no reasons and simply states the vote without revealing the individual votes. Most likely, the three liberal justices voted with Drummond, and Thomas and Alito voted with Oklahoma. Of the remaining three, Gorsuch and Kavanaugh likely voted with Oklahoma and Roberts voted with Drummond, but we don’t know for certain. The Foundation hopes its amicus brief helped them solidify their positions.
What does a 4-4 tie vote mean? It means the decision of the Oklahoma Supreme Court stands, but it has no force as a binding precedent outside Oklahoma, and even in Oklahoma, its precedential force is limited. The governor and religious leaders have vowed to keep fighting, and they believe Barrett will cast a deciding vote in their favor in a future case in which she has no reason to recuse. The attorney general has announced a run for governor, but he will have Republican primary opponents and his stand in this case will undoubtedly be an issue.
Two concluding thoughts:
First, President Trump made some remarkably conservative appointments to the district and circuit courts. But his Supreme Court nominees, although much better than anyone Hillary Clinton would have nominated, were not as reliably conservative as many had hoped. This term, Trump needs to be sure his court nominees are squarely in the Thomas/Alito/Rehnquist/Scalia tradition.
Second, the liberals on the Court and in the legal community seem to believe that neutrality means keeping religion out of the schools. That is wrong. The Supreme Court recognized in Torcaso v. Watkins (1961) that Secular Humanism is a religion. As the Foundation argued in its amicus brief, if other private schools are granted government funding that is denied to Catholic schools and other schools that are based on theistic religions, that constitutes an establishment of Secular Humanism and both content and viewpoint discrimination against theistic religions. If the Constitution requires neutrality about religion, this is not the way to achieve it.
Of course, that’s just my opinion. But in my opinion, my opinion is correct.
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, Ala. (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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