The Uncertain Future of the Madison鈥揓efferson Wall of Church and State: Commentary on Oklahoma Statewide Charter School Board v. Drummond
By: Logan McMillian
Disclaimer: The views expressed in this post are those of the author and do not necessarily reflect the views of the Journal, the William H. Bowen School of Law, or 糖心Vlog传媒 Little Rock.
The U.S. Supreme Court issued a decision, in May 2025, resolving the Drummond case by an evenly divided 4-4 vote. Okla. Statewide Charter Sch. Bd. v. Drummond, No. 24-394, 605 U.S. (May 22, 2025) (per curiam). Because of the divided court, the judgment of the lower court was affirmed. Id. The lower court held that Oklahoma鈥檚 approval of a publicly funded religious charter school violated the First Amendment鈥檚 Establishment Clause, effectively resulting in a win for Oklahoma Attorney General Gentner Drummond. Drummond ex rel. State of Okla. v. Okla. Statewide Virtual Charter Sch. Bd., 558 P.3d 1, 15 (Okla. 2024). The Court鈥檚 unsigned per curiam decision contains no reasoning; it is merely an affirmation of the inferior court鈥檚 decision. Id. While this hands a victory to advocates of the Separation of Church and State Doctrine, the federal question surrounding the usage of tax payer dollars for religious charter schools remains unanswered.
The deadlock is significant because it publicly exposes the Court鈥檚 ongoing struggle to reconcile religious liberties with the constitutional limitations on church and state separation. The opinion is significant because of the 4鈥�4 split that occurred when Justice Amy Coney Barrett recused herself from the case. Her recusal deprived the Court of a precedential opinion and left the Court of Appeals鈥� ruling intact. This raised public speculation as to why Justice Barrett, an outspoken and openly conservative person of faith, deprived the conservative bloc of a likely fifth vote. The per curiam nature of the opinion reinforces this uncertainty: no justice authored a controlling rationale, and no binding doctrinal precedent emerged. This is because the court only issued an advisory opinion. As a result, the broader constitutional question鈥攚hether states must allow religious charter schools鈥攔emains unresolved, leaving the issue ripe for future litigation.
Over the past decade, the Supreme Court has dramatically reshaped how federal courts analyze Establishment Clause disputes, particularly when they intersect with the Free Exercise Clause. In Kennedy v. Bremerton School District, the Court formally abandoned the Lemon test, which was the original framework that had guided Establishment Clause analysis for nearly fifty years, in favor of an approach grounded in 鈥渞eference historical practices and understandings.鈥� Kennedy v. Bremerton School District, 597 U.S. 507, 535 (2022). This solidified a trend toward expanding Free Exercise protections. Id. Moreover, the Supreme Court extended this reasoning by striking down state restrictions that excluded religious schools from tax credit scholarship programs. Espinoza v. Mont. Dep’t of Revenue, 591 U.S. 464, 509 (2020).
Together, these cases represent a shift in judicial logic: Free Exercise rights are interpreted expansively, while Establishment Clause concerns are treated as secondary. Historically, the Court rationalized public funding of religious education as constitutionally suspect, but it now views exclusion of religious entities as discriminatory. Within this trajectory, Drummond stands as an anomaly鈥攏ot because the Court endorsed a robust principle, but because the recusal froze the momentum of Free Exercise expansion. If no justice had recused his or herself, the Court may well have required Oklahoma to authorize a religious charter school, marking a dramatic doctrinal leap by compelling states to fund explicitly religious schools. With that comes the question: how far does this go?
The unresolved reasoning in Drummond spotlights why the Madison鈥揓efferson 鈥渨all of separation鈥� remains a vital constitutional principle. Lindsey M. Wood, Free Exercise or Forced Establishment? Why the Supreme Court got Carson v. Makin Wrong and What Vermont Can Do About It?, 49 Vt. L. Rev. 424, 438. Jefferson鈥檚 phrase emphasized that the government should neither favor nor disadvantage religion, and it was cited by the Supreme Court in Everson v. Board of Education (1947). Maintaining separation is not an expression of hostility toward religion, but a safeguard for religious liberty itself. A state that funds one religious school may feel pressure to fund others, forcing taxpayers of diverse faiths to subsidize teachings with which they profoundly disagree. This entanglement risks both the autonomy of religious institutions and the neutrality of the state.
The Oklahoma Supreme Court鈥檚 decision preserved that wall, at least temporarily. But the Court鈥檚 silence ensures the debate will return, likely in a case with nine participating justices. When it does, the constitutional stakes will be high: whether the Establishment Clause still imposes meaningful limits, or whether the Free Exercise Clause has been transformed into a mandate for government sponsorship of religion. Drummond is less a decisive ruling than a pause in the Court鈥檚 ongoing reconfiguration of church鈥搒tate law. The 4鈥�4 split preserved Oklahoma鈥檚 rejection of a Catholic charter school but left unresolved whether states nationwide may exclude sectarian schools from charter programs. Okla. Statewide Charter Sch. Bd., 605 U.S. (2025) (per curiam). Given the Court鈥檚 recent trajectory, the Establishment Clause stands on precarious ground.
Thus, this case reminds us why Jefferson鈥檚 鈥渨all鈥� matters. Public education has long served as a unifying civic institution, accessible to all regardless of faith. Weakening the barrier between church and state risks fragmenting that common ground and entangling government with religion in ways the framers sought to prevent. The per curiam tie in Drummond leaves the wall standing, for now, but its future depends on whether the Court continues its drift toward dismantling one of the Constitution鈥檚 most enduring protections.