Supreme Court Considers Major Religious Discrimination Case
There's a good chance the Court will further amplify its opposition to government discrimination against religious organizations, though the Chief Justice is always liable to do something ... strange.
After a couple of years punctuated by highly consequential (and controversial) decisions, the U.S. Supreme Court’s current term has generally been more a matter of the justices working out the implications of the major decisions of recent years. A present case in point is Oklahoma Statewide Charter School Board v. Drummond, on which the Court heard oral arguments on Wednesday.
The case takes up the issue of whether the Constitution prevents the state of Oklahoma from authorizing charter status for a Catholic virtual school run by the archdiocese of Oklahoma City and the diocese of Tulsa.
The state’s charter school board approved the application in 2023. Oklahoma Attorney General Gentner Drummond, a Republican, petitioned the state’s Supreme Court to invalidate the contract with the school. The court did so, stating that the proposed institution was a public school, which state law requires to be “nonsectarian.” The charter school board appealed.
The case brings up a conflict between rights, the sort of battle the Court spent the twentieth century consistently using to suppress government support for religious activities and over which the justices ultimately threw away government neutrality toward religion, settling on aggressive hostility toward Christianity in particular. ABC News reports,
The justices will be weighing whether the First Amendment, which prohibits a government role in establishing religion while also protecting an individual right to practice religion, means only nonsectarian organizations can qualify for Oklahoma's charter schools program or whether faith-based groups are also eligible.
The case turns in large part on whether the state's charter schools meet the definition of “public” schools and, as such, operate as extensions of state government.
“The claim in this case is not that government schools are allowed to be Catholic or religious. This is a claim that, in Oklahoma, charter schools are contractors,” said Rick Garnett, a constitutional law professor at the University of Notre Dame.
The case will provide further clarity on the issue in the wake of three decisions of recent years that expanded the Court’s conception of what states are allowed to do under the Constitution: Trinity Lutheran v. Comer, Carson v. Makin, and Espinoza v. Montana Department of Revenue.
Taken together, attorney James Campbell argued before the Court for the Oklahoma charter school board, those decisions “stand for the proposition that when the government makes benefits or funds generally available to the public, it cannot exclude people or groups from such programs just because they are religious,” wrote reporter Amy Howe at SCOTUSblog.
Making a similar point, Prof. Garnett told ABC News the Court has clearly established that government programs must not discriminate on the basis of religion:
A series of recent Supreme Court decisions has made clear that taxpayer-funded public benefit programs, from school vouchers to state-run scholarships, must be equally available, even if a person or organization has a religious affiliation.
“It's a pretty settled rule of the Supreme Court that once a government opens up a benefit program, it can’t discriminate on the basis of religion,” Garnett said of the school's argument.
Justice Amy Coney Barrett having recused herself from the case, a 4-4 tie would leave the Oklahoma Supreme Court’s decision in place, blocking the authorization of the charter.
During the questioning, Justices Kagan, Sotomayor, and Jackson appeared to favor blocking the school, as expected. Justices Alito, Thomas, Gorsuch, and Kavanaugh appear likely to vote in favor of the charter board and reverse the lower court’s decision, based on past history and their questions during oral arguments, Howe reports.
That would leave Chief Justice John Roberts as the deciding vote. Roberts is one of “several of the conservative justices [who] seemed more persuaded by arguments that a decision against St. Isidore would impinge on religious liberty,” The Washington Post reports:
They repeatedly returned to a key ruling in which the court said a state agency’s refusal to contract with a religiously run foster-care service amounted to impermissible discrimination.
In that case, known as Fulton v. City of Philadelphia, the court said Philadelphia had violated the Constitution by not extending a foster-care services contract to Catholic Social Services.
“How is that different from what we have here?” Roberts asked. “You have an education program and you want to not allow them to participate with a religious entity?”
Roberts made the same point in a landmark case in 2019, Espinoza et al. v. Montana Department of Revenue et al., the Post notes: “Roberts concluded in the Montana case: ‘A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” That was an enormously important decision, in which Roberts’ argument prevailed.
Kavanaugh made the same point, very firmly, in the oral arguments phase of the present case, as the Post reports:
Justice Brett M. Kavanaugh signaled his support, saying that excluding religious schools from the charter school program “seems like rank discrimination.”
“Our cases have been very clear,” he said, referring to recent rulings that have permitted public spending for religious as well as secular schools. “I think those are some of the most important cases we’ve had, of saying you can’t treat religious people and religious institutions and religious speech as second class in the United States.”
Kavanaugh’s statement exemplifies the direction the Court has been going in recent years and shows that a decision allowing the Oklahoma government to grant the charter would fit with the reasoning behind those precedents.
There’s never any guarantee, however, that Roberts will not do something confounding in an important case. (You may substitute a different word for “confounding” if you like.) We will probably have to wait until June to find out whether the Court will further amplify its opposition to government discrimination against religious organizations.