Originally published in the Deseret News.

An Oklahoma state board prompted new controversy around religious freedom when it authorized a public charter school that would be run by the Roman Catholic Archdiocese of Oklahoma City and the Diocese of Tulsa.

The decision drew praise from some Catholic church leaders and promises of a lawsuit by opponents. Oklahoma’s Republican governor supported the decision, while the Republican state attorney general opposed it.

Does a religious charter school, funded by taxpayers, violate the First Amendment’s establishment clause, “Congress shall make no law respecting the establishment of religion”? What does the Oklahoma decision mean for Utah and other states committed to education choice and religious freedom?

These are politically thorny and complex questions that lack easy answers. However, U.S. Supreme Court precedent suggests the Oklahoma decision could well be held unconstitutional, while thoughtful analysis suggests it would be bad policy even if it were deemed constitutional.

Further, Utah’s constitution and state charter statute make clear that such a decision would not be lawful in Utah.

The history of religious liberty in education

The implications of the establishment clause have long been contested. At the time of ratification, in 1791, the clause had two clear implications. First, it prevented Congress from creating a national church (like the Church of England). Second, it prevented Congress from interfering with commonwealths and states that had established churches (like Connecticut, Massachusetts and New Hampshire).

In 1947, however, a 5-4 majority of the Supreme Court ruled that the establishment clause also prohibited states from breaching a “wall of separation” between church and state, borrowing the phrase from a letter written by Thomas Jefferson. The controversy around this ruling is that Jefferson’s idea did not come from the Constitution itself or from a source that would indicate the original public meaning of the establishment clause.

That said, the nearly 80-year life of this ruling has made it a clear part of the legal fabric of the United States. An example of its impact on America’s education landscape is the Supreme Court’s ruling prohibiting public schools from sponsoring even nondenominational prayer at school. 

However, recent Supreme Court rulings have begun retracting the reach of the 1947 decision. In recent cases, the court has largely abandoned precedent that had expanded the impact of the “wall of separation” idea. Rulings related to religious education have struck down laws that excluded parents from using state scholarship funds at a religious school, or that prohibited religious schools from participation in public programs open to other private schools solely because of the religious nature of the school.

The constitutionality of the Oklahoma decision

This is the legal context in which the Oklahoma public charter school decision was made. In December 2022, at the end of his term, the state’s attorney general issued a novel and controversial advisory opinion concluding that it was religious discrimination to bar churches from sponsoring public charter schools, and that charter schools did not exercise government power. Public charter schools have always been understood (including in Utah) to be part of the public school system, not private schools. Unsurprisingly, then, the current attorney general rescinded the advisory opinion of his predecessor.

If the 2022 opinion is correct that public charter schools are not public schools, then it would seem that the government is discriminating against religious groups by not letting them sponsor charter schools. If, however, charter schools are in fact public schools, then a religious public charter school would seem to clearly run afoul of Supreme Court precedent regarding the First Amendment.

Charter schools use public funds to create new schooling models while also remaining subject to many state regulations. They are seen as an early legislative victory for school choice and are now one among an array of alternative schooling options that are growing in popularity. The charter school movement in the U.S. was really born in the 1990s. In 1991, Minnesota was the first state to pass a charter school law and opened its first charter school the next year. Since then, every state has passed a charter school law. 

While charter schools are seen as an important alternative for parents, they are still a public school option because they receive direct state funding (funding for charter schools is calculated and apportioned using a similar mechanism as state funding for district public schools) and can only operate under a state-approved charter. In part because of this, charter school legislation almost always has an explicit prohibition against religious elements in admissions, programs, employment policies and so forth.

Because charter schools are generally considered to be public schools — the 2022 Oklahoma attorney general opinion notwithstanding — it seems likely that the Oklahoma board’s decision will be deemed unconstitutional by the U.S. Supreme Court under the establishment clause.

What the Oklahoma decision means for Utah

Utah’s state constitution was drafted to oppose direct funding of religious education, saying in Article 10, Section 9: “Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.”

Utah’s charter school law also addresses religion and charter schools directly: “A charter school shall be nonsectarian in its programs, admission policies, employment practices, and operations.”

Thus, the possibility of a religious charter school in Utah is specifically foreclosed by current state law.

Apart from any legal analysis, this is a good thing for the American understanding of religious freedom. Keeping churches at arm’s length from exercising government authority protects both religious and government institutions. Ensuring a legal distinction between church authority and government authority protects church organizations from undue government interference in their affairs. If a church cannot exert government power, that removes a primary reason for government regulation of a church and expands the space available in the public square for expression of religious views and practices. 

Government institutions are also inoculated against a risk of loss of public trust that would stem from the perception that public policies are simply an extension of sectarian interests. If churches cannot directly exert government power, then public policies primarily become a matter of what policy and/or political merits are most persuasive to policymakers.

In short, Utah’s system of education laws and choice programs appropriately balances the proper understanding of religious liberty in the U.S. Constitution. And Utah’s newly enacted “Utah Fits All” scholarship program is a perfect example of how to strike the right balance between education choice and religious freedom. The program gives parents publicly funded scholarships to pursue the education option that best fits their unique student needs and family values — including private religious schools — but maintains an arm’s length between private religious schools and the exercise of government authority.

Oklahoma’s novel experiment will surely lead to more debate and litigation that has the potential to lead to changes in how states approach charter schools. What those changes might be is entirely speculative at this point. 

In the meantime, the complex issues raised by Oklahoma’s charter school decision offer Utah voters and policymakers the chance to consider and deepen their knowledge of the proper understanding of American religious freedom in its multiple facets: protecting religious expression and protecting against government establishment of religion. Equipped with that understanding, lawmakers can better protect and promote religious freedom and its many benefits for the religious and non-religious alike.