Split on Religious Charters

One small question, one big question, and one huge question remain

This morning, SCOTUS issued a one-page judgment in the faith-based charters case. The Court split 4-4. That means the state court’s decision stands, and the proposed OK charter in question cannot operate.

But because SCOTUS was split, the judgment came with no vote breakdown and no opinions. We don’t know what happened. All we have are educated guesses—with an emphasis on the “guesses.”

At this point, I think three questions are front and center.

The small question is which right-leaning justice sided with the three justices on the left. Of course, it’s possible that something else happened, but I can’t create a plausible alternative scenario. Based on the oral arguments, I doubt it was Kavanaugh or Alito. Based on previous opinions I doubt it was Gorsuch or Thomas. But see above about “educated guesses.”

I only say that this is a small question because we’ll never know for sure, and, whatever the answer is, it doesn’t matter much at the moment. This case is closed. It is now a matter of palace intrigue/Courtology.

The big question is whether a similar case will return to the Court some time soon. Justice Barrett recused herself here, presumably because of her relationship with a university-based group involved in this case. In another case down the line, she might participate.

Recent-history buffs and education-watchers will remember two labor-union cases. About a decade ago, conservative observers hoped/believed that Friedrichs v. California Teachers Association would lead to the end of “agency fees.” But Justice Scalia passed away, and the Court ultimately split 4-4. But just two years later, with Justice Gorsuch on the bench, the Court ruled 5-4 (in Janus v. AFSCME) that forcing non-consenting public-sector employees to pay agency fees violated the First Amendment. Will something similar happen here in a couple years?

The huge question is on what grounds did a right-leaning justice decide to side with Oklahoma. In other words, somebody who voted for one or more of Trinity Lutheran, Espinoza, and Carson voted against the faith-based charter in OK. The logic behind that choice is of utmost importance.

Was it because the justice decided the charter school is in fact a state actor? Was it because the justice decided a state can use the “play in the joints” between the two religion clauses to elevate the Establishment Clause above Free Exercise in a case like this? Was it because of some kind of new or renewed status-use distinction? Was it because of that sentence in Carson about a secular public-school system? Something else?

This is important not just because the answer would affect a future religious-charters case but because it would affect other instances of faith-based groups engaging in public programs.