John Roberts wrote three cases dissolving the separation of church and state. Will he take another leap of faith?

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Over his 20 years on the Supreme Court, Chief Justice John Roberts has demonstrated an ability to slowly build the scaffolding, case by case, for a major development in the law. At the same time, he is also known for famously decrying “jolts” to the legal system.

Roberts wrote the three cases that proponents of an Oklahoma religious public charter school relied on Wednesday in a major dispute over the First Amendment’s protections for religion.

He began in a limited vein in 2017, requiring Missouri to pay for playground resurfacing at a church school as it did for non-religious places. But Roberts then authored decisions in 2020 and 2022 favoring parents seeking student aid and tuition assistance for religious schools, as was available at nonsectarian schools.

Justice Sonia Sotomayor, among the dissenters who said those cases breached the constitutional separation of church and state, responded in the last one: “This Court should not have started down this path five years ago. … I warned (in the 2017 case) that the Court’s analysis could be manipulated.”

The St. Isidore of Seville Catholic Virtual School now argues that the trio of cases leads unavoidably to a ruling that would require states to finance religious public charter schools. Most of the court’s conservatives appeared to agree.

And after oral arguments Wednesday, it looked as if Roberts, who led the court to this moment, would be the one to cast the deciding vote. The chief justice, however, at times seemed hesitant to take the leap for which he’d laid the ground.

Referring to the three earlier cases, Roberts said, “Those involved fairly discrete state involvement” with religion. He told James Campbell, one of the lawyers representing the St. Isidore school, “This does strike me as a much more comprehensive involvement.”

The new case will be decided by an eight-member court, and the possibility of a tie 4-4 vote exists.

Justice Amy Coney Barrett, who is not participating, did not officially provide a reason for recusing from the case. But the former Notre Dame law professor has a personal connection to members of the school’s religious liberty clinic that helped develop the case.

If Roberts votes with his four conservative brethren, who all seemed ready to side with St. Isidore, they’d have the requisite five-justice majority.

But if Roberts instead votes with the three liberals, who voiced strong reservations about the possibility of a taxpayer-funded religious school, it would be a 4-4 split. The result would affirm the Oklahoma Supreme Court’s decision last year invalidating the St. Isidore initiative.

Fellow justices look for opportunities

Throughout the two hours of arguments, Roberts’ colleagues seemed on high alert for any leanings he revealed and tried to address his interests in their remarks. Right-wing colleagues, especially, referred to his past sentiment that would favor religious conservatives in the Oklahoma case.

When Roberts expressed ambiguity, justices on the left followed up. “Thinking about the chief justice’s question,” Justice Elena Kagan began one line of queries.

Kagan also asked Gregory Garre, arguing on behalf of the Oklahoma attorney general fighting a state contract for the St. Isidore school, to highlight what would happen if the justices suddenly transformed the nature of schools in Oklahoma and the more than 40 other states that regard charter schools to be public.

“First, every charter school law and the federal charter school program is unconstitutional, because they all require that charter schools be public schools and that they be nonsectarian,” Garre said. “This is going to create uncertainty, confusion, and disruption for potentially millions of school children and families across the country.”

Garre also emphasized that while the court has enhanced public funding for religious entities, Roberts wrote for the majority in 2022 that “states may choose to provide a strictly secular education.”

Wednesday’s case arises at the intersection of the First Amendment’s religion clauses, which prohibit the government’s “establishment of religion” and guarantee “the free exercise thereof.”

In 2017, the court ruled that Missouri violated the free exercise clause by excluding the Trinity Lutheran Church’s Child Learning Center from a grant program for playground resurfacing, made from recycled tires, based on the center’s religious status.

As Roberts pulled together a majority, he insisted his rationale was narrow and covered only “express discrimination based on religious identity with respect to playground resurfacing.”

Three years later, in the 2020 case, Espinoza v. Montana Department of Revenue, Roberts wrote for a majority that found that state had unconstitutionally excluded schools from a state student aid program, supported by tax credits, based solely on their religious character.

He went further in the 2022 Maine controversy, turning away from an earlier standard focused on the religious entities’ “status,” rather than its “use” of the money. The court said Maine could not exclude religious private schools from a tuition payment program.

“In Trinity Lutheran and Espinosa, we held that the Free Exercise Clause forbids discrimination on the basis of religious status,” Roberts wrote. “But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”

Roberts asserted the decision flowed from Trinity Lutheran and Espinoza because the funding was filtered through the private choices of parents.

Yet dissenting justices questioned whether the majority was essentially reading the establishment clause out of the First Amendment as it gave “almost exclusive attention to the words in the second” clause guaranteeing the free exercise of religion.

Direct funding for religious schools?

While the earlier cases prevented government from excluding private religious entities from generally available state benefits, the Oklahoma case centers on direct funding of religious education.

Liberal justices said Wednesday that necessarily brought to the fore larger concerns related to the First Amendment’s establishment clause, concerns that Sotomayor said the school’s backers were minimizing.

“What you’re saying is the free exercise clause trumps the essence of the establishment clause because the essence of the establishment clause was we’re not going to pay religious leaders to teach their religion,” she said. “And, here, we’re paying Catholic leaders, Catholic teachers.”

Yet most justices homed in on potential state actions that would exclude religion, and Roberts referred to yet another decision he’d written that involved the free exercise of religion, the 2021 case of Fulton v. Philadelphia. In that controversy, the high court sided with a Catholic foster care agency that had been denied a contract with the city of Philadelphia because it rejected same-sex couples as potential foster parents.

“What do you do with Fulton?” the chief justice asked Garre. “You have a state agency that refused to deal with the religious adoption services, and we held they couldn’t engage in that discrimination. How is that different from what we have here?”

Garre said there were fundamental differences: “Our position doesn’t threaten faith-based contractors at all. The adoption agency in Fulton wasn’t established by the state through legislative action. It wasn’t fully funded by the state. It wasn’t controlled by the state.”

Roberts’ colleagues returned to the Fulton case, too, raising the specter that a ruling against St. Isidore would hurt, as Justice Brett Kavanaugh said, “the senior homes, food banks, hospitals that receive government funding, participate in government programs, like the foster care program.”

In response, Garre said the St. Isidore school proponents were trying “to bait this court with concerns,” although government contracting programs differ.

“They’re not fully funded by the state. They’re not controlled by the state in the way that charter schools are,” Garre said. “It’s an easy distinction.”

Whether it’s an “easy distinction,” or otherwise, likely rests with Roberts.

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