Four Supreme Court Justices wanted to make it legal for taxpayer dollars to fund religious charter schools.
The Supreme Court produced a 4-4 deadlock on Thursday on the question of whether an Oklahoma religious school could take part in the state’s publicly funded charter school programs. While the decision is unsigned, thanks to the even split, it is likely that Chief Justice Roberts sided with liberal Justices Sonia Sotomayor, Ketanji Brown Jackson, and Elena Kagan in opposition to the measure, while conservatives Clarence Thomas, Brett Kavanaugh, Neil Gorsuch, and Samuel Alito likely voted in favor of allowing religious charter schools access to public funds. Justice Amy Comey Barret recused herself due to attorneys from her alma mater, Notre Dame Law School, representing the religious schools.
The deadlock leaves in place an Oklahoma ruling that a Catholic public charter school is unconstitutional. But the Supreme Court sidestepped the question, deferring to the lower court decision.
The four judges who voted in favor of the measure seem to be ignoring that earmarking public funds for religious schools is a clear violation of the establishment clause of the first amendment. This clause prohibits the government from “establishing” a religion, and from blurring the lines between separation of church and state.
To determine what violates the establishment clause, the court carries out a “Lemon test,” originating from the 1971 Supreme Court case Lemon v. Kurtzman. It states that the government can partner with a religious entity only if “(1) the primary purpose of the assistance is secular, (2) the assistance must neither promote nor inhibit religion, and (3) there is no excessive entanglement between church and state.”
“The fact that the Court split 4-4 in this case, with Justice Barrett recused, is not especially surprising,” said CNN Supreme Court Analyst Steve Vladeck. “The surprise is that the Court had agreed to take this case up, with Justice Barrett recused, in the first place. That had led some folks to wonder if Chief Justice Roberts might be willing to join the other four Republican appointees in favor of public funding for religious charter schools. Today’s affirmance without an opinion suggests that he isn’t, at least for now.”
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