You Can’t Ban God and Call it Freedom

A School, a Question, and a Constitutional Crisis

St. Isidore of Seville Catholic Virtual School does not yet exist, but it may soon decide the future of religious liberty in public education. Approved as a public charter school by Oklahoma’s Statewide Virtual Charter School Board, St. Isidore plans to offer tuition-free education grounded in Catholic teaching—open to all, required of none, and publicly accountable.

Its opponents argue that a religious school should never receive public funding, even if it meets every academic and legal standard. But their objection reveals a deeper question: Does the First Amendment require the government to exclude religious institutions from public life, or does it forbid that exclusion?

That question is not rhetorical. It defines whether neutrality means fairness—or forced secularism. It tests whether religious families are full citizens in a pluralist democracy—or guests, welcome only on secular terms.

And it raises a final, unavoidable contradiction: Can a government that bans God still claim to protect freedom?

Liberty Through Balance, Not Separation

The First Amendment contains two clauses, often cited as if they compete, but in truth they complete each other:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

These words are not in tension. They are in balance. One forbids the state from controlling religion through top-down mandates (such as requiring the Bible to be taught in every public-school classroom). The other forbids it from excluding religion when it is a bottom-up expression of the people. Together, they form a constitutional architecture that neither privileges belief nor penalizes it.

James Madison, author of the First Amendment, insisted that religion was not a right granted by government but a natural liberty. In his Memorial and Remonstrance Against Religious Assessments, he wrote that religion must be left to “the conviction and conscience of every man.” Government could neither compel nor suppress it.

The modern phrase “separation of church and state” appears nowhere in the Constitution. It comes from a private letter by Thomas Jefferson, who—ironically—attended religious services held inside government buildings. Separation, to the Founders, meant institutional noninterference, not spiritual exclusion.

Religious participation in public life was assumed—not feared. To exclude a faith-based school from a neutral public program today is not fidelity to the First Amendment. It is the exact opposite.

Faith Cannot Be a Disqualifier

The U.S. Supreme Court has spoken plainly: a religious institution cannot be excluded from a public benefit program simply because it is religious.

In Trinity Lutheran v. Comer (2017), Missouri denied a church preschool access to a public playground resurfacing grant solely due to its religious status. The Court ruled this exclusion unconstitutional. Chief Justice Roberts called it“odious to our Constitution.”

In Espinoza v. Montana Department of Revenue (2020), the Court held that if a state provides public scholarships to private schools, it cannot deny them to religious schools because of their religious identity. “A State need not subsidize private education,” the Court said. “But once it decides to do so, it cannot disqualify some private schools solely because they are religious.”

Two years later, Carson v. Makin (2022) extended this logic from religious status to religious use. Maine had denied tuition assistance to parents who selected schools that provided religious instruction. The Court ruled this, too, unconstitutional.

Finally, in Zelman v. Simmons-Harris (2002), the Court upheld a school choice program that allowed public funds to follow families—whether they chose secular or religious schools—so long as the program was neutral and driven by individual choice.

The line across these cases is unbroken: when the government opens a public benefit to private participants, it may not disqualify religious institutions merely because they are religious. That principle is not advisory. It is controlling law.

Private Participation in a Public System

Attorney General Drummond argues that charter schools are public in every constitutional sense—that because they are funded and authorized by the state, they must remain strictly secular. But that logic confuses funding with control, and oversight with ownership.

Oklahoma law defines charter schools as nonprofit entities initiated by private actors through a contract with the state (70 O.S. § 3-136(E)). They are publicly accountable but independently operated. The state does not dictate curriculum, hiring, or religious affiliation—nor should it.

This distinction is critical under Rendell-Baker v. Kohn (1982), where the Supreme Court ruled that even a privately-operated school receiving over 90% of its funding from the government was not a state actor. The key issue was who made internal decisions—not who wrote the checks.

In Mitchell v. Helms (2000), the Court upheld public aid to religious schools, so long as the aid was neutral and distributed without favor or control. That principle governs here.

Charter schools are private educational partners within a public system—not government entities. If funding alone made them government entities, the same would apply to hospitals, foster agencies, and food banks. And yet, religious organizations partner in all of those spheres—without controversy, and without violating the Constitution.

The Establishment Clause, Misapplied and Misunderstood

Attorney General Drummond relies on mid-20th-century Establishment Clause cases—Engel v. Vitale (1962), School District of Abington v. Schempp (1963), and McCollum v. Board of Education (1948)—to argue that religious expression in any publicly funded school violates the Constitution.

But these cases addressed a very different context: state-mandated religious practice inside traditional public schools. In Engel, the state composed a prayer and required its recitation. In Schempp, Bible readings were compulsory. In McCollum, religious instructors entered public classrooms during school hours under state authority.

None of these apply to a privately initiated, independently operated charter school selected voluntarily by families.

St. Isidore imposes no religious exercise. It is not the state mandating prayer—it is the community requesting a public option that reflects its convictions. It does not conscript students into belief. It invites families into a curriculum they freely choose.

The Establishment Clause prohibits government imposition—not religious presence in public life. A school like St. Isidore does not violate that clause. It fulfills the balance the Founders intended: a state that neither commands faith nor forbids it.

To invoke Engel or Schempp against such a model is not constitutional fidelity. It is historical misapplication.

The Constitutional Breakpoint

Opponents of St. Isidore argue that public education must remain entirely secular because taxpayer dollars are involved. But this objection collapses under the one feature that changes everything: parental choice.

The Supreme Court has consistently held that when parents—not the government—choose where public funds go, the state does not endorse religion by permitting religious options.

In Zelman v. Simmons-Harris (2002), the Court upheld a school voucher program even though many parents selected religious schools. The decisive factor was this: the program was neutral and the funding flowed through individual family decisions.

This echoes Pierce v. Society of Sisters (1925), which affirmed that “the child is not the mere creature of the state.” Parents have a constitutional right to direct their children’s education. And inWisconsin v. Yoder (1972), the Court went further—holding that religious communities could withdraw from state schooling altogether to preserve their faith formation.

St. Isidore is not imposed. It is chosen. It is not the state prescribing theology—it is the state respecting the constitutional primacy of the family.

When the government offers diverse public options, it cannot punish parents who choose a religious one. That’s not neutrality. That’s control.

The Silent Violation

The argument against religious charter schools often hides behind the word “neutral.” But neutrality is not achieved by excluding religion while permitting every other worldview. That is not neutrality—it isviewpoint discrimination.

In Rosenberger v. University of Virginia (1995), the Supreme Court ruled that a state university could not deny funding to a Christian student publication while funding secular ones. Doing so, the Court held, amounted to impermissible discrimination based on viewpoint.

In Good News Club v. Milford Central School (2001), the Court held that a school district could not prohibit a religious group from meeting in school facilities after hours if other community groups were allowed to do so.

The logic is clear: when the government opens a public forum, it may not favor some perspectives and exclude others. Religious speech is not second-class speech. Religious values are not disqualified simply because they are theological.

If Oklahoma allows charter schools focused on environmentalism, critical theory, or STEM specialization, it cannot exclude one focused on faith. That exclusion does not protect pluralism. It enforces a secular orthodoxy.

A government that invites diverse ideas into the public square cannot turn around and reject religion at the gate. That’s not neutrality. It’s a violation.

Coercion and Constitutional Clarity

Attorney General Drummond suggests that a religious charter school—even one chosen voluntarily—might pressure students into religious practice. But the Constitution does not prohibit exposure to belief. It prohibits coercion.

In Kennedy v. Bremerton School District (2022), the Court held that a public high school football coach had the right to kneel in prayer on the field after games. His actions, though visible and religious, were not coercive—because no one was compelled to join.

The same principle applies here. St. Isidore would be chosen by families who know it is religious. It would be one option among many. No one is forced to attend. No one is coerced to believe.

The Constitution draws a bright line between compulsion and conscience. Discomfort is not coercion. Visibility is not endorsement.

To bar a faith-based school from public participation simply because it might make some uncomfortable is not constitutional protection. It is constitutional overreach.

Precedent Integrity

Attorney General Drummond relies heavily on older Establishment Clause rulings—Engel, Schempp, McCollum—but fails to reconcile these with the Court’s recent and controlling Free Exercise precedents: Trinity Lutheran, Espinoza, Carson, Kennedy, and Zelman.

This is not a matter of interpretation—it is a matter of constitutional trajectory.

The Court has moved decisively toward a standard of neutrality, historical consistency, and protection of religious participation in public programs.

Neither Engel or Schempp limited bottom-up expression of religion by the people. Rather, it limited top-down imposition of religion by the government, specifically: coercive, state-directed religious activity in compulsory education environments.

St. Isidore presents none of those elements. It is initiated privately, attended voluntarily, and supported through a neutral public benefit structure.

The Court has not reversed itself with recent decision on Free Exercise—but it has clarified its boundaries. And under those boundaries, St. Isidore is not unconstitutional. It is protected.

What Tips the Scale

The constitutional question is not whether religion is present. It is whether the state is in control.

If the Supreme Court determines that charter schools like St. Isidore are private participants in a neutral public-benefit system, then the outcome is clear: religious exclusion violates the Free Exercise Clause.

Several inflection points tip the scale:

• St. Isidore is not a state actor; it is a private nonprofit.

• The school is one option among many—not mandated, not monopolizing.

• Public funding is distributed through neutral, indirect channels.

• Excluding religious participation while allowing secular worldviews constitutes viewpoint discrimination.

• The parents choose. The state does not.

This is not legal ambiguity. It is doctrinal alignment. Every recent decision—from Trinity to Carson—confirms that religious status and use may not disqualify public benefit access.

If the Court remains faithful to its own logic, St. Isidore must be allowed to open.

No More Secular Monopoly

Neutrality is often misunderstood as the absence of religion. But in constitutional terms, neutrality means equal access, not ideological erasure.

A government cannot claim neutrality while excluding only religious voices. That is not balance. It is bias wrapped in bureaucratic language.

In Rosenberger v. University of Virginia, the Court warned against any attempt by the state to regulate messages based on their content or worldview. “The government may not regulate speech based on its substantive content or the message it conveys.”

To bar faith-based charter schools while welcoming all others is not neutral. It is a secular monopoly.

Public Education and Religious Pluralism

Drummond warns that permitting religious charter schools would unravel public education. But the opposite is true: pluralism strengthens public trust by offering meaningful choice within shared civic structure.

Charter schools already reflect ideological diversity—classical academies, STEM models, bilingual immersion, environmental emphasis. Faith-based options simply reflect another deep current in American life.

As the Court wrote in Espinoza, “A state’s interest in greater separation of church and state than the federal Constitution requires cannot justify excluding religious schools from otherwise available public benefits.”

The real threat to public education is not diversity of belief—it is the fear of belief itself.

The Logic of Liberty

St. Isidore is not a loophole. It is a test: of fairness, of freedom, and of fidelity to the Constitution.

It is lawful. It is voluntary. It is accountable. And it is protected.

To ban it is to privilege secularism above all other worldviews—to collapse neutrality into uniformity, and liberty into control.

The First Amendment was not written to keep religion out of public life. It was written to keep government from deciding whose voice belongs.

Let the school open.

Let the parents choose.

Let the Constitution hold.

Because you can’t ban God and call it freedom.