By Chris Satullo

Pop quiz: In what part of the U.S. Constitution can you find the phrase “separation of church and state”?

OK, I’ll let the Final Jeopardy theme play in my head while you come up with your answer. Dum-dum-dum-dumdedumdumdum-DUM-de-dum-dum …dum … dum … dum. Times up! 

If you answered, “the Preamble,” oops, I’m sorry, that’s not right. You forfeit your wager, though here’s a year’s supply of Air Wick Stick Ups as a nice parting gift.

If you said, “Article I,” bzzzz! so sorry, but that is also incorrect.

If you said, “the First Amendment,” please wipe that satisfied smirk off your face. You, too, are wrong. 

Spoiler alert: The Constitution nowhere mentions secular liberals’ treasured phrase, which they invest with magical power to force pious people who annoy them to shut up and go away.

Here is the text of the pertinent segment of the First Amendment:

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

Yes, the first part of that sentence alludes to the concept of church-state separation, though not quite in the extreme sense of “separation of church and life” that some liberals fiercely promote. 

The use of establishment here is one of those examples of 18th century lingo that can confuse the 21st century mind, referring not to a place (i.e., not in the sense of “drinking establishment”) but an action. The amendment says No way, Jose! to the idea of establishing a “state church” like Merry Olde’s Anglican one.

For the Founders, the religious wars that sundered and bloodied Europe in the two previous centuries were top-of-mind historical memories. They had no desire to replay the 30 Years War or English Civil War on their fresh turf. Along with John Locke, they saw tolerance of religious diversity as the secret sauce that could avert such horrors.

If their new nation could refrain from “establishing” any one church – in other words making that church the only sanctioned one, or a uniquely favored one – that might keep the Furies of religious schism at bay. And they were mostly right about that.

But that was only half of what they had to say about religion and the state. After their five words forbidding establishment, they added five other, counterpoised ones: the Free Exercise clause. It guarantees not only individual freedom of conscience but some freedom of action in the private and public squares for those who subscribe to a particular creed, rite or set of sacraments. The First Amendment pairs these two clauses in an endlessly awkward dance, with each new era of American society calling its particular tune.

Secular liberals tend to want to ignore, or at least de-emphasize, the Free Exercise clause. The current majority of the Supreme Court – in one of the few areas where I kinda, sorta agree with them – refuses to let that happen. 

Look, I may not like the baker who refuses to sell a wedding cake to a gay couple on religious grounds – and surely wouldn’t give her my business – but I suspect she may have a constitutional right to be a jerk in this specific way.

Which brings me to Oklahoma.

The attorney general in the Sooner State just offered a ground-breaking opinion.  Looking at the state law governing charter schools – independent schools that use public money – John O’Connor ruled that a clause barring a charter from being affiliated with a “nonsectarian school or religious institution” is unconstitutional and should not be enforced.

O’Connor wrote: “It seems obvious that a state cannot exclude those merely ‘affiliated with’ a religious or sectarian institution from a state-created program in which private entities are otherwise generally allowed to participate if they are qualified.”

I can hear some of you muttering angrily, “Obvious? Not so fast, dog-breath! Ever hear of the separation of church and state?”

But hear me out. As bad a policy as I think it would be to follow an open-door, no-questions-asked policy on religiously affiliated charters, I’m not so sure O’Connor is wrong on the constitutional point. And he surely is correct when he says that three recent decisions by our right-tilting Supreme Court demonstrate its intent to let religious schools tap into benefits such as facilities grants, tax credits and tuition aid that are available to non-sectarian private schools.

To be fair, O’Connor clearly says his opinion does not mean religious charters “can operate however they want” when it comes to curriculum or policies on admission and employment. They’d have to follow the same rules that nonsectarian charters do.

In what strikes me as a fair observation, he says: “The State cannot enlist private organizations to ‘promote a diversity of educational choices’…and then decide that any and every kind of religion is the wrong kind of diversity. This is not how the First Amendment works.” 

Do not mistake me, I see myriad ways this could lead to bad consequences. Charter schools, while intrinsically a worthy idea, have been badly carried out in various states, with results like: 

• Intentionally sapping resources from regular public schools.
• Enabling publicly-funded resegregation.
• Greasing lucrative self-dealing by pols and other connected players
• Offering resources and cover to ill-qualified education quacks.

Adding “it’s God’s will” to the list of alibis for such behavior will not help.

I’ve never been to Oklahoma and don’t have it on my must-visit list. But I still wouldn’t want to see any of those things happen to children and taxpayers there – and certainly not in any states dearer to my heart.

I also don’t want to see self-righteous liberal bigotry against religion treated as sacred constitutional doctrine, either. The Constitution, despite what some seem to think, does not have a “freedom from religion” clause. You can’t be forced by the state to pretend to believe in God or any theological doctrine, but you also can’t expect government to enforce your wish never to be troubled by anyone else’s public expression of religious belief. 

Two thought exercises:  

1) Accept, at least for the sake of argument, this definition of religious faith: A central proposition about the existence or non-existence of God, with articulated implications for human behavior, ethics, and communal life.    

Under that definition, then, agnosticism and atheism would qualify as faiths, whose central proposition is that God’s existence is either a) unknowable or b) false.  

Just as much as Methodism or Islam, atheism entails a firm belief about things that are fundamentally unknowable and unprovable by the human mind.  

So, in that sense, aren’t agnosticism and atheism just two among the many, many faith propositions that the Free Exercise clause says may not be banned, punished, or persecuted – but which the Establishment Clause says must never be exalted into the official, favored position of government?

Thus, O’Connor isn’t wrong when he says it offends the First Amendment to deny a charter school privileges or benefits solely on the grounds that its position is that God exists, while those same benefits may flow to a charter school whose underlying proposition is that God is a fantasy not worth discussing.

This, again, is not to say that the religious school should enjoy free rein to use public dollars to teach that dinosaurs cavorted with Noah, or to hold that Jews are evil, or to deny admission based on skin color. The state has every right to insist that schools getting its tax dollars must teach sound science, obey laws against discrimination, and generally further whatever definition of the public good  underlies its school code.

If Oklahoma were to let religious charter schools run amok, ignoring rules that others must follow, that would be flat wrong. But simply allowing the ones that follow the rules to access the same benefits other charters get strikes me as constitutionally OK. A close call perhaps, but OK.

The underlying point, though narrow, is essential: Public policy should not privilege the atheist or agnostic propositions over God-centered ones any more than it should privilege Christianity over Judaism, Islam, or Buddhism.

Which leads me to thought experiment No. 2:

What would it look like if we had a system where public tax dollars flowed through individual students to every manner of educational institution – public, nonsectarian private, plus all manner of sectarian schools – Catholic, Baptist, Methodist, Jewish, Quaker, what have you – with each of them competing fiercely against the others for students? Would it be chaos? Disaster? A triumph for ignorance and bigotry?

Well, this is not exactly an imaginary proposition. We already have a huge, mostly prospering, avidly sought-after system of teaching and learning that operates precisely this way today.

It’s called higher education. 

It’s called Penn State and Michigan, Harvard and Stanford, Notre Dame, Ohio Wesleyan, and Brandeis. All of whose students get Pell Grants and federally-backed loans.

I understand that K-12 is not the same as college, and some of the differences may matter here. But it always astonishes me when liberals act as though it’s an unheard-of outrage for federal dollars to flow by some path to a religious institution of learning.

Whether you believe in the Apocalypse or not, the Oklahoma ruling is not the end of the world.

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Chris Satullo, a civic engagement consultant, is a former editorial page editor/columnist at The Philadelphia Inquirer, and a former vice president/news at WHYY public media in Philadelphia