Last week, the Supreme Court handed down its “non-decision” in the latest church school funding case, affirming the lower court decision by an equally divided court. No reasoning was given, nor was a breakdown of how the justices voted provided, leaving undecided the central issue as to whether a state can directly fund a church school.
As usual, Amy Howe at ScotusBlog provided the details.
While the net effect of this non-decision is to leave the Oklahoma court’s decision intact — i.e., that the St. Isidore’s virtual school could not participate in the Oklahoma charter school funding program — the Supreme Court’s decision carries no weight as a decision on the merits of the critical First Amendment issues and has no effect as a precedent. In short, it leaves for another day the question of whether or not a religious school can be barred from receiving direct governmental funding as a charter school. Would that funding amount to the “establishment” of religion in violation of the First Amendment’s Establishment Clause? Or would that bar impermissibly penalize and interfere with the “free exercise” of religion?
Beyond doubt this issue will find itself in front of the Supreme Court in short order, and no one would be surprised to see it there next Term. The talking heads are speculating that Chief Justice Roberts joined the so-called liberal justices to divide the court evenly this time, as he seemed to be worried during oral argument that the Oklahoma case got the state government too closely involved in a religious school’s affairs.
Justice Barrett had recused herself from the case, meaning that only eight justices were involved in the decision, and at least some of those talking heads are guessing that she would provide the decisive fifth vote in a different case presenting the same issues to say that any governmental funding program for schools must allow a church school to participate on the same basis as a secular school, Establishment Clause notwithstanding.
As we’ve said before, stay tuned. This issue is of huge importance for many of Church Executive’s readers. We’ll be back when it returns to the Supreme Court’s docket.
— The Editors
For more background, see this previous Church Executive article on the Oklahoma cases.
