The Supreme Court’s decision to hear the case of the private Catholic school that wants to “partake in the benefits of Oklahoma’s charter school program” strikes us as a step in the right direction. The Sooners’ high court nixed the idea, citing the Constitution and Oklahoma laws aiming at, the court reckoned, “a complete separation of church and state.” Does, though, that violate the free exercise clause of the First Amendment?

It certainly looks like it, at least to us, and we wish the Catholic school luck as it pursues this issue. We see it as a chance to move ahead another notch in ending the long campaign against religion in public life in America. The decision to hear the Oklahoma case could presage another ruling in which the Roberts court has made it its business to expand religious free exercise in the United States. It is a growing record of religious liberty.

Feature, say, the unanimous decision in a case from 2012, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The Nine, in an opinion penned by Chief Justice Roberts, found then that the First Amendment’s insistence that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” barred government “from interfering with the decision of a religious group” over hiring and firing decisions.

In 2017, in Trinity Lutheran Church v. Comer, and in 2022 in Carson v. Makin, the Nine limited Missouri and Maine’s abilities to deny public funds to religious schools. It all adds up to what two law professors call a “transformation of constitutional protections for religion.” A dispute in New York festers over whether religious Jews can give their children a religious education without having to teach them profane subjects that violate their religious principles. 

Which brings us back to Oklahoma, where St. Isidore of Seville Catholic Virtual School will argue its case before the Nine. The Sooner high court warned that allowing the state funding is “a slippery slope” endangering “Oklahomans’ freedom to practice religion without fear of governmental intervention.” Harvard’s Noah Feldman says the case tests the “Supreme Court’s willingness to abandon the establishment clause of the Constitution.”

Yet St. Isidore is a private institution, not a state school, and as a result, Notre Dame’s Nicole Stelle Garnett has said, the real issue is “whether laws prohibiting religious charter schools are unconstitutional.” Precedents on the relationship between church and state, the New York Times reports, have, until St. Isidore, meant that “a religious charter school has never before been established.”

The use of the word “established” in that sentence is, in our reading, different than what the Framers were intending when they drafted the First Amendment’s lingo about “respecting an establishment of religion.” They did not mean merely that Congress may not establish a religion. There were, after all, established — official — religions in several states, including Massachusetts and Connecticut. Congress could neither establish nor disestablish. 

The left’s fretting over public funding for religious schools, though, is not the same as the religious establishments when the First Amendment was written. That misunderstanding is one that the Roberts Court has been busily rectifying, case by case, for more than a decade. In doing so the court has helped clarify the Framers’ First Amendment language as endorsing not so much a separation of Church and State as a protection of the Church from the State.

This is not to overlook the risks of tax-funded religious schools. For one thing, state funding is likely to yield a lower-quality education than would follow from private funding. Indeed, Oklahoma parents could well be more concerned about the meddling that will accompany state funding than losing the money. As President Reagan warned: “The nine most terrifying words in the English language are: I’m from the Government, and I’m here to help.”