Supreme Court Appears Open to Approving Religious Public Schools

The Supreme Court’s conservative majority on April 30 seemed sympathetic to the Catholic Church’s bid to create the nation’s first religious charter school in Oklahoma, a potentially major expansion of the use of taxpayer money for religious education.

However, the chief justice's relative silence makes it possible the case could end in a 4-4 tie, since one of the six conservative justices, Amy Coney Barrett, recused herself from the case.

Apart from Chief Justice John Roberts, the other conservative justices involved in the case appeared swayed by the argument that barring the church’s participation would be discriminatory.

“All the religious school is saying is don’t exclude us on account of our religion,” said Justice Brett Kavanaugh.

The court’s liberal justices, meanwhile, raised concerns about how religious charter schools could favor one religion over another and entangle the government in religious issues.

"Really, what you're saying is the free exercise clause trumps the essence of the establishment clause," Justice Sonia Sotomayor told the attorney for the state’s charter school board.

"The essence of the establishment clause was, 'We're not going to pay religious leaders to teach their religion.'"

The Oklahoma case presents a major test of the separation of church and state.

The U.S. Constitution prohibits the government from establishing a religion, but also says the government cannot prohibit people from freely exercising religion.

In some recent cases where those portions of the Constitution have been in tension, the Supreme Court came down on the side of protecting religious exercise, expanding the role of religion in public life.

A similar decision in the Oklahoma case could greatly increase the use of taxpayer money for religious education.