Gentner Drummond has unceasingly advocated discrimination against religious schools solely because of their religious status.
Scholars and jurists seeking to interpret the First Amendment’s establishment and free-exercise clauses have generally found themselves of two differing camps regarding the relationship between religion and the state that the U.S. Constitution permits.
These two views have commonly been called strict separationism and nonpreferentialism (or accommodationism). While strict separationists interpret the establishment clause in light of Thomas Jefferson’s 1802 Letter to the Danbury Baptists, in which he wrote of the Constitution erecting a “wall of separation between church and state,” nonpreferentialists view the First Amendment as allowing for government support of religion generally so long as the government does not endorse or show a preference for any particular religion, or even a preference for religion over non-religion.
So, to give a concrete example, while strict separationists believe the First Amendment prohibits the government from supporting any schools with a religious character or affiliation, nonpreferentialism would view the government’s support for, say, a Catholic charter school as constitutionally permitted so long as the government would be willing to provide the same support to charter schools of Protestant, Orthodox, Jewish, Muslim, Buddhist, or secular affiliation.
While judicial progressives and secular advocacy groups such as Americans United for Separation of Church and State and the American Civil Liberties Union have long advocated the strict-separationist position (and generally promoted the exclusion of religion and religious values from political life), nonpreferentialism has been embraced by faithful constitutionalists committed to interpreting the Constitution in line with history, tradition, and its original purpose and meaning. The courts have also adopted a nonpreferentialist view, especially in recent years; in Carson v. Makin (2022), for example, the U.S. Supreme Court ruled that Maine’s ban on school vouchers’ being used to pay for religiously affiliated private schools (while allowing them to be used to pay for secular private schools) was a violation of the free-exercise clause.
But a notable exception to that trend has been in Oklahoma, where the state supreme court just ruled — in the face of binding precedents such as Carson forbidding discrimination against religious schools — that a first-of-its-kind publicly funded, religiously affiliated charter school, St. Isidore of Seville Virtual School, is unconstitutional under the establishment clause. The lawsuit was spearheaded by Gentner Drummond, Oklahoma’s Republican attorney general, who afterward issued a statement praising the ruling as a “tremendous victory for religious liberty” while alleging that the U.S. Constitution “prevent[s] the state from sponsoring any religion at all.”
The trouble is that the state supreme court’s affirmation of Drummond’s effort to shut down St. Isidore’s is anything but a victory for the Constitution and religious liberty: It authorizes the state to deny to religious schools (of any denomination) the same treatment and benefits that their secular equivalents receive. As Chief Justice John Roberts noted in Carson, the U.S. Supreme Court has “repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” But that is exactly what is going on in Oklahoma, where a religious charter school is being denied public funding ordinarily available to charter schools solely on the basis of its religious status.
St. Isidore’s existence does not compel citizens to “violate their faith,” as Drummond has repeatedly and baselessly claimed. All St. Isidore’s sought — and as schools of all religious affiliations should seek — was access to the same benefits that its secular counterparts were receiving. To deny St. Isidore’s that access is, as the Supreme Court has affirmed, to unconstitutionally discriminate against it solely based on its religious status. If this had happened to a Muslim school, a Jewish school, or a Buddhist school, the affront to the free-exercise clause would have been the same, because the same principle would apply. If legislators in another state had tried to restrict public-charter-school funding to religious schools only and discriminated against secular schools, the same principle would also apply.
Drummond is an elected official who owes his office to Oklahoma voters. Oklahomans should be asking themselves whether they agree with their attorney general’s siding with progressive advocacy groups on strict separationism as a constitutional requirement and whether they approve of his unceasing advocacy for discriminating against religious schools solely because of their religious status.