The First Amendment Isn’t Divided Against Itself

W hen future President Abraham Lincoln accepted his Senate nomination by the Illinois Republican Party, he delivered his famous “House Divided” speech, in which he warned of the instability of a country that included slave states. Lincoln pulled this phrase from the book of Matthew, where Jesus said a “house divided against itself will not stand.” Tension breeds weakness; divisions collapse.

If an Oklahoma Supreme Court ruling currently under review by the U.S. Supreme Court is permitted to stand, America will find itself in the unfortunate position of having a divided house — not just within its borders, but within a single phrase of the Constitution itself.

The opening part of the First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” (The 14th Amendment binds all state officials to these same principles.) The text is clear: Governments cannot officially prop up one religion as the state-sponsored religion, nor can they deny religious practitioners the right to freely gather and receive benefits that nonreligious groups enjoy. These complementary principles demand neutrality toward religion rather than hostility or partiality.

Oklahoma law prohibits religious groups from applying to establish charter schools, although it broadly invites all other private groups into the program. When the Oklahoma Statewide Charter School Board received an application from St. Isidore of Seville Catholic Virtual School, it was confronted with a choice: Approve St. Isidore so that it can provide a high-quality education to Oklahoma families who choose it as an option — or follow state law that is at odds with the U.S. Constitution by discriminating against religion.

Fortunately, former Oklahoma Attorney General John O’Connor made the decision easier because he issued an opinion that the state law runs afoul of recent U.S. Supreme Court decisions that require the state to allow religious institutions to participate in public programs to the same extent as their secular counterparts. Unfortunately, current Attorney General Gentner Drummond doesn’t see things the same way, so he sued to exclude St. Isidore from Oklahoma’s charter school program.

Already you can see the house dividing between one attorney general and the next. But it gets more complicated. The majority of the Oklahoma Supreme Court, where Drummond brought his case, sided against St. Isidore and the charter school board. In many of his public statements addressing the case, the attorney general voiced concerns that, should St. Isidore be approved, it would open the floodgates to allow extreme religious ideologies to get state funding, like schools teaching sharia law or satanism.

Never mind that private schools advocating the replacement of our constitutional system with Islamic law or teaching pentagram drawing are almost impossible to find in the United States. Never mind that the charter school board’s criteria are very high — high enough to filter out substandard schools. And never mind that Oklahoma charter schools get funded only if Oklahoma families and students choose to go there. Drummond’s views are directly at odds with how religious freedom in our country is supposed to work. Our Founding Fathers saw the wisdom in promoting a society that doesn’t suppress religious liberty out of fear that extremists will slip through the cracks.

The specter of a “house divided” hovering over this case is more serious than issues like the Oklahoma governor taking a position against his attorney general in this particular case. The matter at hand is how we view the First Amendment itself. Do the establishment clause and free exercise clause work in tension with one another? Or do they work in tandem, requiring that religious groups be treated just like secular groups when they apply to operate a charter school in Oklahoma but without establishing that group’s faith as the state’s official religion?

Justice Neil Gorsuch answered this question in announcing the Supreme Court’s decision in Kennedy v. Bremerton School District, in which the court vindicated a high school football coach who was suspended for praying at the end of games. He said that these “Clauses appear in the same sentence of the same Amendment. . . . A natural reading of that sentence would seem to suggest the Clauses have ‘complementary’ purposes, not warring ones where one Clause is always sure to prevail over the others.”

Alliance Defending Freedom, where I serve as senior counsel, will argue before the U.S. Supreme Court on April 30, asking that the Oklahoma Supreme Court’s ruling be overturned and advocating for harmony — not division — in the First Amendment.