Can the Government Fund Religious Schools?

The St. Isidore of Seville Catholic Virtual School will become the first government-funded religious charter school in the United States after a 3-2 vote by the Oklahoma Statewide Virtual Charter School Board. If ultimately upheld by the U.S. Supreme Court, the use of tax money to fully support a religious-based school would radically alter a core First Amendment principle of church-state separation that traces all the way back to the founding of our country. 

Can religious schools receive government funding?

On the face of it, the charter school board vote would appear clearly unconstitutional. After all, both the Oklahoma Constitution and the state’s Charter Schools Act require that public schools, including charter schools, must be nonsectarian, meaning they cannot be affiliated with any one religious tradition or sect. Moreover, the U.S. Supreme Court has consistently ruled for more than 70 years that direct funding of religion by government violates the First Amendment’s establishment clause, which prohibits the government from endorsing religion. 

Proponents of government funding of religious charter schools point to several recent U.S. Supreme Court decisions in which the majority sided with parents and religious institutions challenging state policies preventing them from accessing education-related funds available for secular recipients.  

In June 2022, in Carson v. Makin, the high court held that when governments choose to subsidize private schools, they must allow such funds to pay for religious schools. A majority of current justices appear to believe that excluding religious groups from government programs is a violation of the First Amendment’s free exercise clause. Although court precedents prohibit direct funding of religion under the establishment clause, the current court could decide that if the state funds secular public charter schools, religious public charter schools cannot be excluded from such funding.  

To understand what is at stake in the dispute over tax support for religious charter schools, a bit of history is needed.  

The Virginia General Assembly’s passage of Thomas Jefferson’s Act for Establishing Religious Freedom in 1786 was the first time in history that a legislature voted to disestablish state religion. That revolutionary victory for religious liberty set the stage for the First Amendment’s guarantee of “no establishment” of religion. Our country was the first to be founded with a commitment to protect freedom of religion and conscience for people of all faiths or none.  

The question of disestablishment in Virginia began – much like the current debate in Oklahoma – over state funding of religion. Thomas Jefferson strongly believed that forcing people to support a religion not their own was “sinful and tyrannical.” James Madison agreed, writing famously, and often quoted by the Supreme Court in decisions upholding church-state separation, that “the religion then of every man must be left to the conviction and conscience of every man.” In short, government support for religion violates liberty of conscience. Church-state separation, they argued, is a necessary condition for religious freedom.  

On the opposing side, Patrick Henry and his allies were convinced that tax support for religion was necessary to promote education and morality. Henry proposed a “general assessment” bill providing tax funds for clergy of all the various Christian denominations in the state. After long and bitter debate, the legislature enacted Jefferson’s bill, not Henry’s, on Jan. 16, 1786. 

Jefferson commented, “It is honorable for us to have produced the first legislature who had the courage to declare that the reason of man may be trusted with the formation of his own opinions.”  

Though Madison and Jefferson were clearly premature in declaring liberty of conscience fully secured – both men enslaved people, to cite the most egregious contradiction – the passage of the Virginia statute was a defining moment for religious freedom in America. In principle, at least, the United States was committed to ending the entanglement of religion and government and to protecting all faiths.  

We are now coming full circle. In the Oklahoma dispute over funding religious charter schools, one side echoes Patrick Henry, arguing that state support for religion is not only fair but necessary. The other side responds, channeling Jefferson, that subsidizing religious indoctrination with taxpayer dollars is a tyrannical violation of conscience.  

It is another sign of our tumultuous times that a narrow 3-2 vote by an obscure state agency may lead to the most radical change to religious freedom under the First Amendment in American history. With the current U.S. Supreme Court, no precedent is safe. Anything is possible.  

Charles C. Haynes is senior fellow for religious liberty for the Freedom Forum, and founder of the Religious Freedom Center.