The U.S. Supreme Court is poised to decide between two competing visions of the First Amendment this term in a pair of cases out of Oklahoma. Under one theory, the religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) are complementary, both aiming to facilitate religious liberty. Under a second theory, those clauses are on a collision course — with the establishment clause (the first half) authorizing the government to restrict religious liberty even when doing so would violate the free exercise clause (the second half).
The Supreme Court should find that the collision theory of the religion clauses is irreconcilable with history and tradition. In fact, the federal government’s funding of religious education from the Founding through the turn of the 19th century is a prime historical example disproving the collision theory.
There’s no question that the Bill of Rights was enacted to limit the power of the federal government and to prevent the sort of abuses that early Americans had suffered at the hands of the British government. Yet many today argue that the establishment clause is different — that the provision offers permission to the government to exclude and discriminate against those who are otherwise protected by the Constitution. Under this view, the Founders intentionally set the religion clauses of the First Amendment on the aforementioned collision course — that the clauses are in “inherent tension,” with the free exercise clause protecting religious liberty, while antiestablishment interests authorize the violation of free exercise rights and the exclusion of religious people from public programs and benefits.
In the most recent example of the collision course theory — in the pair of consolidated Oklahoma cases now before the U.S. Supreme Court, Oklahoma Statewide Charter School Board v. Drummond and St. Isidore of Seville Catholic Virtual School v. Drummond — the Oklahoma Supreme Court relied on the establishment clause to sanction a free exercise violation. My firm, Alliance Defending Freedom, represents the charter school board.
Under Oklahoma’s Charter School Act, the state invites any individual or private organization to apply to operate a charter school. There’s just one catch: Religious groups are excluded from that otherwise open invitation.
In 2023, St. Isidore of Seville, a nonprofit organization composed of two Catholic dioceses, applied to be a virtual Catholic charter school. The religious nonprofit was up-front about its desire to provide a high-quality religious education. St. Isidore seeks to create a school “dedicated to academic excellence” that will “educate the entire child: soul, heart, intellect, and body” in the Catholic tradition. And St. Isidore promised to welcome “any and all students,” including “those of different faiths or no faith.”
It is undisputed that St. Isidore easily meets the requirements for operating a charter school. Its application showcases a high-quality curriculum, and its two diocesan members have experience running successful schools. Believing that excluding the school would violate the free exercise clause, the state board approved St. Isidore.
Oklahoma’s attorney general filed a mandamus petition with the Oklahoma Supreme Court asking it to rescind that approval. He warned that the board had violated the establishment clause and “pave[d] the way for an onslaught of sectarian applicants for charter” schools, including religions he thought that Oklahomans “would find reprehensible,” such as “sects of the Muslim faith.”
The Oklahoma Supreme Court rescinded the approval. Endorsing the collision theory of the religion clauses, the court found that the state had a compelling antiestablishment interest that justified the free exercise violation. The U.S. Supreme Court agreed to take the case.
The formulation of the religion clauses as being at cross-purposes is irreconcilable with history and tradition. As the Supreme Court has recently explained, the most “natural reading” of the religion clauses — contained in the very same sentence, after all — is that the clauses have “complementary purposes, not warring ones.”
The original understanding of the religion clauses confirms they are both meant to facilitate religious liberty, not destroy it. As Stanford professor Michael W. McConnell has explained, in 18th-century England, as well as the American colonies, religion was “established” by laws requiring compulsory religious observance, mandatory financial support to churches, and the prohibition of other forms of religious worship. The establishment clause was meant to protect religious liberty by preventing the government from establishing a national church through such laws.
This understanding of the establishment clause is confirmed by the long history of federal funding for religious schools. The Oklahoma Supreme Court first erred by failing to grapple with recent Supreme Court precedent that demands that the establishment clause be interpreted by “reference to historical practices and understandings.”
From the Bill of Rights up until the late 1800s, every level of American government funded religious education. Indeed, the First Congress funded expressly religious education several times over. It reenacted the Northwest Ordinance, which funded religious schools in federal enclaves, like the District of Columbia. Throughout the 18th and 19th centuries, government-missionary partnerships resulted in Congress paying churches to run schools for American Indians. And the same Congress that framed the 14th Amendment created the Freedmen’s Bureau, which partnered with primarily religious organizations to educate newly freed children in the South. There simply is no historically sound understanding of the establishment clause that requires Oklahoma to exclude St. Isidore because it is religious.
Indeed, a recent trio of Supreme Court decisions involving education — Trinity Lutheran Church of Columbia v. Comer, Espinoza v. Montana Department of Revenue, and Carson v. Makin — have made clear that a state’s antiestablishment interest does not justify excluding religious people from an otherwise available government benefit or program because of their religious exercise. This is especially true where, as with St. Isidore, funds flow to religious organizations through the independent choices of private benefit recipients.
In sum, the Founders did not anticipate that the establishment clause would be used as a sword to deprive individuals of their free exercise rights. Rather, the religion clauses were meant to facilitate religious liberty. In Drummond, the Supreme Court should clarify that an antiestablishment interest does not justify religious discrimination that excludes some members of the community from generally available benefits because of their faith.