First, Define Your Terms

Bettina Krause July/August 2023

Two significant, and not unrelated, news stories broke in June. Pat Robertson, a religious and cultural juggernaut for the past five decades, died at 93. And a state charter school board in Oklahoma approved the nation’s first religious charter school.

Taking the Oklahoma story first, consider these two facts.

• Under Oklahoma law, all charter schools are public schools. They’re open to all, free of charge. They’re fully state funded. They perform functions on behalf of the state, and so they’re ultimately answerable to state authority.
• The school that the Oklahoma board approved—the St. Isidore of Seville Catholic Virtual School—will be state funded. But the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa will care for its day-to-day administration. The curriculum will include compulsory instruction in the Catholic faith, and all classes will be infused with religious teachings and values.

In short, the Oklahoma board has approved a state-funded institution, educating children on behalf of the state, which will also be instructing students in the Catholic faith. Take a moment to let that idea settle in.

Of course, the board’s decision isn’t the final word; there’s likely to be years of litigation ahead over whether this novel creation—a religious charter school—is constitutionally permissible.

Is it? There are, broadly, three possible answers.

First, you could argue that any and all state funding for religious schools—even indirect funding via state school vouchers programs—is unconstitutional. Unfortunately, you’d be wrong, at least according to current constitutional jurisprudence. Last term, the Supreme Court tied a bow on its years-long work of removing constitutional barriers to religious schools participating in state school voucher programs. In Carson v. Makin the Court held not only that a state can include religious schools in school voucher programs on the same footing as secular schools, but that it must.

The second stance you could take is that state vouchers for religious schools are fine, but that establishing a state-funded religious charter school is not. You could argue, “Wait a moment! Voucher money is sent to parents, not religious schools. If state money ends up in the coffers of religious schools, it’s through the decision of parents—not the state. But state funds going directly—no middleperson involved—to set up an institution that delivers religious instruction in a particular faith? That’s precisely what our nation’s founders sought to avoid through the First Amendment’s establishment clause!”

Third, you could argue that approval of a state-funded religious charter school is simply a logical next step past where the Supreme Court has already led us. If it’s constitutionally forbidden to discriminate on the basis of religion when setting up a state school voucher program, then shouldn’t that also apply to criteria used for approving state charter schools?

Where the courts—and ultimately the Supreme Court—will land is anyone’s guess. Predictions are pointless given the Court’s still-evolving, infinitely flexible “text, history, and tradition” approach to weighing these questions.

The phrase “slippery slope” gets used a lot, but in the case of state school voucher programs it seems apt. Those comfortable with state vouchers for religious schools—but uncomfortable with a directly state-funded religious charter school—may find that it’s not so easy to start applying the brakes now. It may be too late to draw a bright-red constitutional line underneath school voucher programs and say, “That’s far enough—no further.”

What has any of this to do with Pat Robertson and his legacy? Only this: The America that Robertson yearned for and spent his life working toward is an America in which a fully state-funded religious charter school is not an outlandish idea.

There have been reams written about Robertson since he died on June 8. There’s little disagreement about the extent of his influence in shaping today’s political and evangelical Christian landscape. For years Robertson deftly blended national identity with Christian identity through his media empire, his political endeavors, and his law school at Regent University. For many American Christians, faith has become a part of their politics and politics a part of their faith.

For Robertson, the American republic—the great American experiment—was not so much a political venture as a Christian one. In a now-infamous 1986 interview with New York Magazine, Robertson called non-Christians in positions of power “termites” who destroy “institutions that have been built by Christians.” He added, “The time has arrived for a godly fumigation.”

As a presidential candidate in the 1990s, Robertson unapologetically declared he would “bring only Christians and Jews into the government.” He wrote later in his book The New World Order, “I hit a firestorm. What do you mean? the media challenged me. You’re not going to bring atheists into the government? How dare you maintain that those who believe in Christian values are better qualified to govern America than Hindus and Muslims? My simple answer is Yes, they are.” 

Attorney Jay Sekulow recently eulogized Robertson’s commitment to religious liberty. Sekulow heads an organization Robertson also founded, the American Center for Law and Justice (ACLJ), which defends the religious liberty rights of Christians. In reflecting on Robertson’s contributions, Sekulow said Robertson’s vision for religious liberty was “so big it can only happen with God.”

For a big vision, it had a remarkably narrow focus. For Robertson, fighting for religious liberty translated into three decades of high-profile court cases focused on the interests of his brand of Christianity.

It’s not surprising, then, that Robertson’s legacy also includes an important role in redefining America’s popular understanding of “religious liberty.” For many today, religious liberty has become code for Christian privilege. It’s a definition that some on the right embrace as a simple truth—a reflection of what a “Christian America” should look like. And it’s a definition that’s used by others, on the left, as a sweeping indictment of Christianity; a reason to discredit any religious freedom claim made by a Christian.

But there’s an alternate definition of religious liberty. It’s one that’s often lost amid the noise of conflict.

More than 230 years ago America’s founders made what was then an unprecedented decision to “disestablish” religion. Over time, American churches were freed from the state control that inevitably accompanies state favor and funding. Religion was given a space in society to operate with a level of autonomy almost unknown in history. We have the disestablishment of religion to thank for allowing the incredible renaissance of faith and religious expression in America that soon followed—the so-called Second Great Awakening of the early nineteenth century.

Today disestablishment is why America is still a shining example of a society in which people of vastly different faiths can flourish together. A society in which religious liberty is a right held equally by everyone by virtue of their humanity, whether they’re Hindu, Protestant, Jewish, Catholic, Muslim, atheist, Buddhist, or any religious or nonreligious variant in between.

So is Oklahoma’s decision to create a state-funded Christian school a win for religious liberty, as many believe? First, define what you mean by “religious liberty.”

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Article Author: Bettina Krause

Bettina Krause is the editor of Liberty magazine.