A Showdown Deferred
Frederick Mark Gedicks September/October 2025In one of the most anticipated religious liberty cases in years, a deadlocked Supreme Court sidestepped the pivotal question—can states fund religious charter schools?
In Drummond ex rel. State v. Oklahoma Statewide Virtual Charter School Board the Court 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.1 The Oklahoma court had found that this funding would violate anti-establishment provisions of both the Oklahoma Constitution and the establishment clause of the First Amendment.2
The dispute arose when 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 The Oklahoma Supreme Court agreed and ordered rescission of the board’s approval.4
The school board and St. Isidore, which had intervened in the lawsuit, 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.5
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, the constitutionally jarring possibility of publicly funded sectarian education and proselytizing, and the growing importance of Justice Barrett’s views 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 remains 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 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. As the Court first described this space: “There is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.”6 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, 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.7 Because the state paid the scholarship directly to individual students, rather than to colleges and universities, and because students could use it for virtually any course of study, its use for ministerial degrees would not have violated the establishment clause.8 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 possess the power to prohibit this funding practice even though it is permitted by federal anti-establishment norms: “That early state constitutions saw no problem in explicitly excluding only the ministry from receiving state dollars reinforces our conclusion that religious instruction is of a different ilk.”9
Many judges, practitioners, and academics thought this conceptual space had been closed off by a subsequent case, Carson v. Makin.10 There the Court considered the constitutionality of a state law that fully funded private education for rural K-12 students lacking access to a public school, but expressly prohibited such funding at private religious schools.11 The Court struck down the law’s exclusion of religious schools as unjustified discrimination prohibited by the free exercise clause: “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”12
St. Isidore and the Oklahoma school board no doubt litigated on the theory that Carson had eliminated this “play in the joints”; this was, probably, also the basis for the four votes to reverse the Oklahoma court. Drummond, however, suggests that Carson may not be the last word. At the least, the Court appears closely divided on whether states retain a federalist prerogative to impose a 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 justifies excluding ministerial degrees from a general state scholarship program, an even greater historical alarm should exist with government-funded religious education 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 would have fully embraced “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.”13 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 hiring Catholic teachers and administrators under the “ministerial exception” to Title VII of the Civil Rights Act of 1964.14 This exception exempts religious organizations from the religious anti-discrimination provisions of the act in hiring any employee with any responsibility for teaching or modeling religious beliefs.15 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.16
A hallmark of religious establishment at the founding was precisely coercive taxation of the people to support worship and proselytizing by clerics 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, such as certain aspects of 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. Characterizing anti-establishment restrictions as constitutionally prohibited “discrimination” would read the establishment clause out of the First Amendment.
The prospect of publicly funded religious proselytizing is especially threatening. No matter how politely one proselytizes others to one’s faith, criticizing other faiths and a lack of faith 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, at least “less true”—hardly a compliment). Any religion’s claim to divine endorsement, finally, necessarily excludes the growing number of Americans who reject congregational affiliation or belief altogether.17
The First Amendment, of course, fully protects proselytizing and other religious speech, however disparaging of others,18 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 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, such as the sectarian proselytizing and 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
The Trump administration has aggressively dismantled longstanding anti-establishment guardrails, most recently allowing religious congregations to endorse partisan candidates despite their tax-free nonprofit status, and permitting proselytizing by federal employees in the workplace.19 These are certain to be challenged in litigation, but it’s not clear that any challenges will succeed—after all, the Court itself has also been dismantling longstanding doctrinal guardrails.20 Drummond indicates that four justices are prepared to take down the traditional establishment clause prohibition on direct government funding of sectarian religious education and proselytizing.
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 say, at least, 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,21 whose abandonment is the Holy Grail long sought by the Religious Right.22
Justice Barrett is the crucial vote on public funding of sectarian religious education and proselytizing. 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.
1 2024 OK 53, 558 P.3d 1 (6-2 decision), aff’d by equally divided ct., 145 S.Ct. 1381 (2025) (per curiam).
2 2024 OK 53, ¶ 45.
3 Ibid., ¶¶ 3-8.
4 Ibid., ¶¶ 9 and 45.
5 See, e.g., The Antelope, 23 U.S. (10 Wheat.) 66, 66–67 (1825); see also Hayburn’s Case, 2 U.S. (2 Dall.) 408 (1792).
6 Walz v. Tax Commission, 397 U.S. 664, 669 (1970).
7 540 U.S. 712 (2004)
8 See Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (upholding state-funded K-12 tuition voucher program under which parents and guardians chose where to direct vouchers from among [what the Court considered to be] a broad spectrum of public, private religious, and private secular educational options).
9 Locke v. Davey, 540 U.S. at 723 (citations omitted).
10 596 U.S. 767 (2022).
11 Ibid., at 773–775.
12 Ibid., at 781.
13 Drummond v. Oklahoma Statewide Charter School Board, 2024 OK 53, ¶¶ 4 and 37.
14 Ibid., ¶¶ 19 and 41.
15 See, e.g., Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. 732, 756–57 (2022).
16 Drummond, 2024 OK 53, ¶4 (quoting from the record).
17 See “About Three-in-Ten U.S. Adults Are Now Religiously Unaffiliated,” Pew Research Center, Dec. 14, 2021 (reporting that 29 percent of U.S. adults are atheist, agnostic, or “nothing in particular”).
18 E.g., Snyder v. Phelps, 562 US 443 (2011) (speech clause protects right of conservative believers to shout vulgar and demeaning anti-LGBTQ epithets on public sidewalks within earshot of attendees at military funerals).
19 U.S. Office of Personnel Management, Memorandum—Protecting Religious Expression in the Federal Workplace, July 28, 2025; see David A. Farenthold, “I.R.S. Says Churches Can Endorse Candidates From the Pulpit,” New York Times, July 9, 2025, p. A-15.
20 E.g., Kennedy v. Bremerton School District, 597 U.S. 507 (2022) (upholding right of public high school football coach to pray at 50-yard line while on duty because, inter alia, such prayers do not raise an establishment clause issue); American Legion v. American Humanist Association, 588 U.S. 29 (2019) (upholding large, city-owned Latin cross prominently displayed at major intersection as World War I memorial).
21 494 U.S. 872 (1990) (holding free exercise clause does not entitle believers to exemption from general laws that incidentally burden their religious exercise).
22 See Fulton v. City of Philadelphia, 593 U.S. 522, 543-544 (2021) (J. Barrett, concurring) (“I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced”). I have argued elsewhere that, contra Barrett, the doctrinal structure of the speech and assembly clauses mirrors that of the free exercise clause under Smith. See Frederick Mark Gedicks, “The Myth of Second-Class Free Exercise,” Villanova Law Review 70, no. 1 (2025).
Article Author: Frederick Mark Gedicks
Frederick Mark Gedicks is Guy Anderson chair and professor of law emeritus at Brigham Young University Law School. This article is drawn from Frederick Mark Gedicks, “Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account,” Indiana Law Journal 88 (2013): 669, 714, 716-718.