WASHINGTON − 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 as the justices debate whether to allow the Catholic Church in Oklahoma to run the nation's first religious charter school.
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.
Here's a summary of key moments from oral arguments before the high court about the proposed religious charter school.
Arguments ended on April 30 with evident divisions between the three justices appointed by Democrats and several Republican-appointed justices on the court.
With Justice Amy Coney Barrett, a Trump appointee, recused from the case, the outcome could come down to Chief Justice John Roberts, who did not show his hand clearly. He said early in the arguments that the Supreme Court's previous rulings dealt with a less significant mixture between state governments and schools than the current Oklahoma cases involve.
If the justices split 4-4 in the case, the Oklahoma Supreme Court's ruling against the Catholic school seeking charter status would stand. However, the U.S. Supreme Court might later choose to hear a similar case with Barrett's participation.
Justice Samuel Alito questioned how religious charter schools could become the only option for students in some areas.
"Why would that be the only option of such a parent?" Alito asked. "The parent could always send his or her child to the schools that you characterize as public schools."
In some jurisdictions, such as New Orleans, the only public schools are charter schools, according to Gregory Garre, representing the Oklahoma attorney general. Half the public schools are charter schools in other places, such as Denver or Washington, D.C., he said.
In Oklahoma, there are jurisdictions where children are assigned to charter schools by default, Garre said.
"You can get out of that, but you have to raise your hand and say, 'No, I don't want to go to the Catholic charter school,'" he said. "That raises the same problem as raising your hand in the public school and saying you don't want to participate in prayer today."
Justice Samuel Alito, a George W. Bush appointee, accused the Oklahoma attorney general's office of being "motivated by hostility toward particular religions" in its argument that religious schools shouldn't be eligible for charter school funding.
Alito quoted the state attorney general as having said "many Oklahomans undoubtedly support charter schools sponsored by various Christian faiths," but that approval of the Catholic school would require the state to approve similar applications from all faiths.
"We have statement after statement by the attorney general that reeks of hostility toward Islam," Alito alleged.
"That's entirely incorrect, your Honor," said Gregory Garre, who was arguing on behalf of the Oklahoma attorney general. Garre said the attorney general was simply saying that once you started bringing certain religious groups but potentially not others into the government, religious strife would follow.
"If your concern is the treatment of Islam or Muslims, then the concern should be the Muslim family whose only practical option is the religious charter school that happens to teach the Catholic faith as truth," Garre said.
Justice Ketanji Brown Jackson noted that Oklahoma supports religious education through vouchers to defray the cost of private schools.
Gregory Garre, the attorney for the Oklahoma attorney general, called that an important point.
He said that's the "win-win" the Supreme Court should endorse without requiring the state to support public religious schools.
Justice Elena Kagan asked what would happen in more than 40 states with charter schools if the high court allowed religious schools to get public funding.
"What kind of issues would they have to confront in the future?" Kagan asked.
Gregory Garre, representing the Oklahoma attorney general, said every charter school law would become unconstitutional because all of them say charter schools are public and nonsectarian.
Garre said some states might change their laws to adapt, but others would abandon charter schools to avoid having religious schools.
"This is going to create uncertainty, confusion and disruption for potentially millions of school children and families across the country," Garre said.
The court would also be putting itself in a position to judge future cases about whether charter schools could exclude gay teachers or teach creationism rather than evolution, Garre said.
"There are going to be a lot of line drawing," Garre said.
Justice Samuel Alito said the Oklahoma constitution's ban on religious public schools has an "unsavory discriminatory history."
Gregory Garre, who represents the Oklahoma attorney general, disputed that a 19th-century movement spurred by prejudice, particularly against Catholic immigrants, was behind that provision.
He said there were other reasons for the provision, including the government's "Christianization" campaign of Native American children.
"Do you think that anti-Catholic bigotry had disappeared from Oklahoma by 1907?" asked the justice, who is one of six practicing Catholics on the Supreme Court.
Justice Brett Kavanaugh said questioned how Oklahoma could block funding for religious charter schools.
"They're built on the idea that innovative approaches to education would increase the quality of education in a particular community," Kavanaugh said.
But Gregory Garre, representing the Oklahoma attorney general, said Congress has designated charter schools as public schools since 1994.
"That's the way it's always been understood," Garre said.
If the Supreme Court rules in favor of St. Isidore, Garre said, "There are going to be other states that ramp it up, no question."
"But there are going to be other states that want out," he said.
"This is going to have a dramatic effect on charter schools across the country," Garre added.
Justice Brett Kavanaugh made it clear he's skeptical about Oklahoma keeping religious schools out of its charter school program in light of the Supreme Court's past rulings.
"Those are some of the most important cases we've had of saying, 'You can't treat religious people and religious institutions and religious speech as second class in the United States,'" Kavanaugh said.
Kavanaugh suggested that Oklahoma's policy is in tension with those decisions.
"That seems like rank discrimination against religion, and that's the concern that I think you need to deal with here," Kavanaugh told Gregory Garre, who was arguing for the Oklahoma attorney general.
Garre said the state attorney general's office respects the principle of not discriminating against religion, but states are still allowed to maintain public schools that are strictly secular.
"That's all the state of Oklahoma has done here," Garre said.
Justice Neil Gorsuch asked what standard courts should use to determine whether religious charter schools are public schools.
"We need a test, a legal test," Gorsuch said.
Gregory Garre, a lawyer representing the Oklahoma attorney general, said charter schools bear all the hallmarks of public entities and that the state "can't fund an entity to teach religion as truth in public schools."
Charter schools are created by the state legislature, have state supervision and control through oversight of curriculum and finances, and annual evaluations