The U.S. Supreme Court split 4-4 on the Oklahoma religious charter school issue. St. Isadore of Seville Catholic School applied for public funding to sponsor an online religious school. The tie decision means that the last decision–which ruled against the proposal–stands.

Justice Amy Coney Barrett recused herself because of a previous relationship with one of the school’s founders.

The decision was unsigned, but one of the Court’s conservative Justices voted with the three liberal Justices to produce a tie vote.

Remember, this is a Court whose conservative Justices claim to be originalists. Their decisions on matters of church and states indicate a flexible, if not hypocritical, application of “originalism.” Over more than two centuries, the U.S. Supreme Court has struggled to maintain separation of church and state. They have found exceptions to Thomas Jefferson’s “wall of separation, allowing public funds for textbooks and state-mandated services, but over the years the courts attempted to avoid the state paying for tuition or teachers’ salaries.

Yet this Court seems to laying the groundwork for tearing that Wall down completely. In previous decisions, the conservative majority has ruled that failure to fund religious schools was a denial of religious freedom.

Such a conclusion does not align with Originalism. No matter how hard Justice Clarence Thomas or Justice Sam Alito scours the historical record, they are unable to build a case that the Founding Fathers or the Supreme Court want the public to subsidize the cost of religious or private schools.

The only thing “original” about their recent decisions requiring states to pay tuition at religious schools in Maine and Montana and capital costs at a religious school in Missouri is their conclusion. They invented a right out of whole cloth.