Looks like we’ve secured a small victory for the separation of church and state.
The Supreme Court deadlocked 4-4 in its decision on Oklahoma Statewide Charter School Board v. Drummond, the case about whether the Catholic Church could run a Catholic public charter school, paid for by public money.
The deadlock means that the appellate court's decision—which had correctly ruled that, no, you can’t have a Catholic public school—stands. But that’s not the best part.
That deadlock only happened because Justice Amy Coney Barrett recused herself from participating in the case. Justices aren’t required to explain their recusals, so we can’t know for sure, but it’s most likely because Notre Dame’s religious liberty clinic represented the school before the court. Barrett taught at Notre Dame for 15 years before taking the federal bench.
She’s also close friends with Nicole Stelle Garnett, a Notre Dame law professor who serves as a legal adviser for the school and is a leading proponent of shoveling public tax dollars to religious schools. In fact, Barrett is godmother to one of Garnett’s children.
Justice Amy Coney Barrett is seen speaking during at the University of Notre Dame's Law School 2018 commencement ceremony.
This is precisely when a justice should recuse themselves. Barrett has close affiliations with the lawyers representing the charter school and an adviser to the school. The Supreme Court’s regrettably non-binding Code of Conduct says that justices should recuse themselves when they have “a personal bias or prejudice concerning a party” such that “the Justice’s impartiality might reasonably be questioned.”
You do not, under any circumstances, have to hand it to Barrett, who is as Christofascist as they come and ascended to the Supreme Court to destroy abortion rights. But she did show far more integrity than some of her conservative colleagues. She knew that sitting this case out risked a deadlock, thus thwarting the dream of a public religious school. Of course, there are six hyperconservative justices, so they still could have prevailed 5-3, but from oral arguments, it looks like Chief Justice John Roberts was the likely defector.
Contrast this with how Justice Samuel Alito has refused to recuse himself in cases where he did a softball interview with one of the attorneys on a case before the court, or from cases regarding Jan. 6 despite his wife literally flying insurrectionist flags.
Or Justice Clarence Thomas, whose wife actively worked to overturn the 2020 election, who did not recuse himself from cases regarding President Donald Trump or the insurrection. In contrast, Barrett recused herself even when her preferred personal outcome might not win. That should be unremarkable, but since Alito and Thomas have been so obstinate in this department, her action stands out.
An added bonus is that this is also a defeat for the Trump administration, which filed an amicus brief in support of the school, arguing that charter schools are not governmental entities because private entities run them. That ignores Oklahoma’s charter school law, which explicitly states that charter schools are indeed public schools with public funding and public admissions.
This will not be the end of the conservative push to further collapse any distinction between church and state. While conservatives know that they can’t outright say that tax dollars should go directly to private religious schools, they will keep coming up with obscure ways to subtly make that argument.
Here, they tried to do it by muddying the waters regarding whether charter schools are actually government entities, which allowed them to frame it as a question of whether a religious group is being excluded from an overall school funding scheme based on its religion.
Conservatives will figure out another approach and likely be savvy enough not to use Notre Dame as counsel. No doubt that the conservative Christian Alliance Defending Freedom or Stephen Miller’s America First Legal will figure out a way to keep destroying a cornerstone of religious freedom.
Campaign Action
