On June 5, Oklahoma voted to allow a new Christian charter school, St. Isidore of Seville Catholic Virtual School, to benefit from taxpayer funding on par with non-sectarian public schools. Activists are up in arms, vowing that the courts will reject this development as a violation of the separation of church and state. But St. Isidore’s opponents will have to reckon with one problem: there is no Separation of Church and State Clause in the U.S. Constitution.
The First Amendment’s Establishment Clause holds: “Congress shall make no law respecting an establishment of religion.” These first words of the Bill of Rights are followed by the Free Exercise Clause, forming the Constitution’s two-pronged approach to religious liberty. Precisely what these “religion clauses” mean has been a long-running source of debate. Some Supreme Court justices maintain to this day, for instance, that the word “Congress” continues to limit the Establishment Clause’s restriction to the federal legislature, which would leave Oklahoma free to support religious institutions however it pleases.
Leaving that argument aside, interpreting the religion clauses to forbid taxpayer funding of religious charter schools is mistaken. The constitutionally and culturally sound interpretation of the First Amendment is to interpret the clauses as pro-religion generally—without favoring one sect over another—because religious virtues double as civic virtues.
The Supreme Court first imported Thomas Jefferson’s famous 1802 letter to the Danbury Baptists—extolling the Constitution’s supposed “wall of separation” between church and state—into its First Amendment jurisprudence in 1879. It did so as dicta, meaning the inclusion was not essential to its decision (which answered a free-exercise question), announcing with little justification that it accepted Jefferson’s view “almost as an authoritative declaration of the scope and effect of the amendment.”
Jeffersonian separationism became fully authoritative in Establishment Clause decisions in 1947, when the Court announced that “[t]he First Amendment has erected a wall between church and state” a century and a half after its ratification. That wall was “high and impregnable,” the Court determined, and it would soon forbid or limit nativity scenes, Ten Commandments displays, and most other religious expressions in the public domain.
Rather than fostering religious expression generally, the First Amendment was newly divided against itself. While the Free Exercise Clause would continue to serve as a shield for religious practice, the Establishment Clause transformed into a subordination clause, allowing public institutions to engage in any kind of secularist expression while categorically excluding religious expression. All this despite long-running traditions indicating that religious expression, arguments, and moral claims were ingrained in our heritage, including the Supreme Court itself beseeching God to save it before every session.
Some absurd outcomes result from this approach. For instance, a public school or government agency can fly a flag symbolizing progressive beliefs on gender and sexuality—indeed, many do—without any fear of an Establishment Clause challenge. But if the same institution flew a flag symbolizing traditional beliefs on the same topics, it would face litigation immediately. Is that really what the Constitution demands?
Framers not named Jefferson, conveniently ignored by the courts, saw things differently. James Madison, far more instrumental to the First Amendment’s construction than Jefferson was, opposed established churches in part because coercion “discourages those who are strangers to the light of revelation from coming into the Region of it.” To the extent that the First Amendment is now construed to discourage religious institutions’ proliferation, it is directly contradicting its author.
John Adams, who has at least an equal claim to playing interpretive guide, believed that a public interest was served in supporting religion’s proliferation. “Our Constitution was made only for a moral and religious people,” he said. Freed from the sense of obligation that, in his view, only adherence to a transcendent code can provide, Adams feared that free citizens would quickly descend into “avarice, ambition, revenge, or gallantry,” and “break the strongest cords of our Constitution as a whale goes through a net.” Civic republicans like Adams believed that religious instruction taught people to use their freedom wisely. The Constitution leaves us free to use speech in ways that harm and corrode our social fabric; institutions like St. Isidore School teach us that we will eventually be judged for doing so. Because religion tends to mitigate the corrosive uses of freedom, a generally pro-religion interpretation of the First Amendment is actually in the interest of all Americans, so long as that interpretation does not elevate or denigrate any particular sect.
Such ideas seem foreign after decades of separationist hegemony in the courts and in our culture. None of these views is dispositive, since the law is not formed by any one founder’s idiosyncratic beliefs about its meaning. But separationism is at best one choice among many. And if it results in a lopsided society—in which religious views get systemically denigrated, in which public schools can promulgate any views except traditional ones—then it is probably neither healthy for the country nor true to the Constitution.
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