Frederick Mark Gedicks is emeritus professor of law at the J. Reuben Clark Law School, Brigham Young University.
The U.S. Supreme Court recently affirmed, by a four-to-four vote, a decision by the Oklahoma Supreme Court that the state could not fund a Catholic virtual charter school because this would violate anti-establishment provisions of the Oklahoma Constitution and the Establishment Clause of the First Amendment. Drummond ex rel. State v. Oklahoma Statewide Virtual Charter School Board, 2024 OK 53, 558 P.3d 1 (6–2 dec.), aff’d by equally divided ct., Nos. 24-394 & -396 (U.S. May 22, 2025) (per curiam), 2025 WL 1459364. (Paragraph numbers below correspond to the official report of the Oklahoma Supreme Court.)
Briefly, the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa proposed to operate an online religious charter school to be called St. Isidore Virtual Charter School. Like all charter schools, it would be fully funded by the state as a public school. The state virtual charter school board approved the application, but the state attorney general challenged it, arguing that state funding of St. Isidore would violate statutory and constitutional prohibitions on using public money to fund religious institutions and education. ¶¶ 3–8. The Oklahoma Supreme Court agreed and ordered rescission of the board’s approval. ¶¶ 9 & 45.
The school board and St. Isadore, which had intervened, appealed the decision to the U.S. Supreme Court as a violation of the Free Exercise Clause of the First Amendment. Justice Barrett did not participate, leaving the remaining Justices evenly divided. In accordance with longstanding Court practice, the tie affirmed the Oklahoma court decision with binding effect on the parties but afforded it no federal precedential value. The Antelope, 23 U.S. (10 Wheat.) 66, 66–67 (1825); see also Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792).
There is not a lot to be said about the Court’s affirmance here. None of the Justices issued opinions, as is the recent custom in tie votes, and we don’t know how the Justices voted (though it’s a good bet that Justices Kagan, Sotomayor, and Jackson, who tend to support separationist results in Religion Clause cases, were for affirmance). The Oklahoma court’s decision is binding precedent only in Oklahoma.
Still, that there is little to say does not mean there is nothing to say. I will venture three observations, about the interaction of the Free Exercise and Establishment Clauses, about the constitutionally jarring possibility of publicly funded sectarian education, and about the growing importance of Justice Barrett in Religion Clause cases.
Observation One: Carson v. Makin May Not Be the Last Word
After Drummond, it would seem that four Justices believe there is conceptual space between what the Free Exercise Clause of the First Amendment demands of government and what the Establishment Clause prohibits government from doing. Sometimes (unhelpfully) called the “play in the joints” between the two clauses, this space represents the power of the states to impose special restrictions on religious activities required by state (but not federal) anti-establishment norms, without triggering the prohibition of the federal Free Exercise Clause on religious discrimination. This conceptual space, therefore, is a dimension of federalism, allowing the states to impose a somewhat stricter separation of church and state than is required by the Establishment Clause without violating the Free Exercise Clause.
The leading case is Locke v. Davey (2004), in which a seven-Justice majority held that a state could deny use of a general state higher-education scholarship to fund ministerial and devotional degrees. Because the scholarship was granted to individuals and could be used for virtually any major, its use for ministerial degrees would not have violated the Establishment Clause under Zelman v. Simmons-Harris (2002). Nevertheless, because fear of government-funded ministers at established churches played such a prominent role in ratification of the Establishment Clause, and was controversial in many states at the Founding, the Court reasoned that states possessed the power to prohibit this practice even when permitted by federal anti-establishment norms.
Many judges, practitioners, and academics thought this conceptual space had been closed off by Carson v. Makin (2021); this was the theory on which St. Isadore and the school board litigated the case and, probably, the basis for the four votes to reverse the Oklahoma court. In Makin, the Court considered a state law that fully funded private education for rural students for whom no public school was available but expressly prohibited such funding at private religious schools. The Court struck down the law as religious discrimination prohibited by the Free Exercise Clause.
Drummond suggests Carson may not be the last word. At the least, the Court appears closely divided on whether states possess a federalist prerogative to impose a somewhat stricter separation of church and state than is currently required by the federal Establishment Clause.
Observation Two: Government-Funded Proselytizing
If the historical concern with government-funded ministers justified excluding ministerial degrees from a general state scholarship program, an even greater historical concern should exist with government-funded worship and proselytizing. St. Isidore proposed to operate as a pervasively Roman Catholic school, as one would expect from an institution sponsored by two Catholic dioceses. It “fully embrace[d] the teachings of the Catholic Church’s Magisterium” and proposed to “fully incorporate[] these into every aspect of the School, including but not limited to its curriculum and co-curricular activities.” ¶ 4 (quoting from the record); see also ¶ 37. The Oklahoma court found that students would be required to attend Catholic instruction and participate in Catholic activities; it found as well that St. Isidore, unlike other charter schools, insisted on the power to discriminate in favor of Catholic teachers and administrators under the ministerial exception to the anti-discrimination provisions of the Civil Rights Act of 1964. ¶¶ 19 & 41. Finally, St. Isidore disclosed its intention to participate fully in the Church’s “evangelizing mission,” presumably seeking converts to Catholicism from among non-Catholic employees, students, and parents. ¶ 4 (quoting from the record).
A hallmark of religious establishment at the Founding was precisely coercive taxation of the people to support worship and proselytizing by ministers and members of a particular faith. It is difficult, therefore, to see how funding these activities can be squared with the Establishment Clause prohibition on established religion. It is beside the point that government funds secular activities, like public education, which some believers consider challenges to their faith. The Establishment Clause places special restrictions on government interactions with religion and belief; no such restrictions are placed on its interactions with physical science, or biology, or literature, or even politics.
The prospect of publicly funded religious proselytizing is especially threatening. No matter how politely one proselytizes one’s faith, criticizing other faiths is unavoidable. One cannot claim to be the only legitimate successor to Christian apostolic authority, as would St. Isidore on behalf of the Roman Catholic Church, without necessarily diminishing the claims to such authority by others. A claim that one belongs to the “only true church” entails that other churches and religions are false (or, in these postmodern times, “less true”—hardly a compliment).
The First Amendment, of course, fully protects proselytizing and other religious speech, however disparaging of others, in a public forum or in published form. But the Establishment Clause prohibits such speech by the government—and, by extension, prohibits the government from directly funding it. Indeed, it is critical to preventing established religion—perhaps the one purpose of the Establishment Clause on which everyone agrees—that the government does not fund activities or speech that elevates one faith and disrespects all others.
Even if a state chooses not to install a more separationist regime, like Oklahoma’s, the Establishment Clause should prevent its funding quintessentially religious activities, like the sectarian religious education proposed by St. Isidore. Yet four Justices evidently saw no Establishment Clause barrier to funding St. Isidore with tax dollars; one wonders whether, for them, the Clause remains a meaningful constitutional constraint. Again, the Court is apparently closely divided on this question.
Observation Three: Justice Barrett
That one can say so little about the meaning of Drummond, so much less than in the ordinary case, is the result of Justice Barrett’s recusal, for which she gave no explanation. Nevertheless, one can, at least, say that Justice Barrett seems to have occupied a different place on the judicial spectrum for Religion Clause issues than many predicted (and others hoped) when she was appointed—witness, for example, her hesitance to overrule Employment Division v. Smith (1990), the Holy Grail long sought by the religious right. See Fulton v. City of Philadelphia (2021) (concurring opinion).
Justice Barrett is the crucial vote on public funding of sectarian religious education. Eventually a Drummond-like case will return to the Court, and she will participate in the decision. Time will tell which way her vote swings.