Amicus Curiae Brief — Oklahoma Statewide Charter School Board, et al., Petitioners v. Gentner Drummond, Attorney General of Oklahoma, ex rel. Oklahoma

Supreme Court briefMar 12, 2025

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Nos. 24-396, 24-394

IN THE

Supreme Court of the United States

_____________________________

ST. ISIDORE OF SEVILLE CATHOLIC VIRTUAL SCHOOL,

Petitioner,

GENTNER DRUMMOND, Attorney General of Oklahoma,

ex rel. STATE OF OKLAHOMA,

Respondent.

_____________________________

OKLAHOMA STATEWIDE CHARTER SCHOOL BOARD, et al.,

Petitioners,

GENTNER DRUMMOND, Attorney General of Oklahoma,

ex rel. STATE OF OKLAHOMA,

Respondent.

_____________________________

On Writ of Certiorari

to the Oklahoma Supreme Court

_____________________________

BRIEF OF AMICUS CURIAE FOUNDATION FOR

MORAL LAW IN SUPPORT OF PETITIONERS

_____________________________

Roy S. Moore*

*Counsel of Record

Jeffrey Tuomala

Talmadge Butts

FOUNDATION FOR MORAL LAW

P.O. Box 148

Gallant, AL 35972

(334) 262-1245

kayla@morallaw.com

jtuomala.home@outlook.com

talmadge@morallaw.org

March 12, 2024

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................... ii

INTEREST OF AMICUS CURIAE ......................... 1

SUMMARY OF THE ARGUMENT......................... 2

ARGUMENT ............................................................ 5

The charter school and other educational

initiatives are driven by the religious

cleansing of the public schools and

consequent disfunction of those schools. .......... 5

A. The religious cleansing of public

schools has harmed education. .................... 5

B. Two highly respected jurists have

argued that the public schools as they

currently

operate

are

unconstitutional. .......................................... 8

C. The history of attempts to ensure

neutrality between religion and

nonreligion has trended toward equal

treatment...................................................... 9

D. The shift of focus to the Free Exercise

Clause has, in principle, furthered the

equality of treatment between religion

and nonreligion. ......................................... 12

II. Whether or not St. Isidore is deemed to be

a state actor, state funding for it

constitutes an establishment of religion.. ...... 14

A. The Court has been unable to

formulate an adequate test for

identifying state action.. ............................ 14

B. If St. Isidore is not a state actor,

failure to provide equal funding with

nonsectarian schools likely violates

the Free Exercise Clause. .......................... 16

C. If St. Isidore is a state actor, it is more

likely that state funding constitutes a

violation of the Establishment Clause.

.................................................................... 17

III. The Court must properly define religion

as it is used in the First Amendment.. ........... 18

A. A definition of religion and the basic

principles of religious liberty were

established during the Virginia

establishment controversy. ........................ 19

B. James Madison’s opposition to a bill

that Patrick Henry introduced

resulted in the Virginia Statute for

Establishing Religious Freedom................ 22

1. Patrick Henry introduced “A Bill

Establishing a Provision for

Teachers

the

Christian

Religion.” ............................................... 22

2. Madison issued a Memorial and

Remonstrance in opposition to

Religious Assessments to oppose

iii

enactment of Henry’s Bill. .................... 23

3. Virginia enacted the Statute for

Establishing Religious Freedom

that enshrines the fundamental

principles of religious liberty. .............. 27

C. The

Court

has

affirmed

the

fundamental principles of religious

liberty in numerous cases. ......................... 27

D. The Court has not upheld the

fundamental principles of religious

liberty in other cases. ................................. 30

CONCLUSION ....................................................... 32

TABLE OF AUTHORITIES

Cases

Page

Abington School District v. Schempp,

347 U.S. 203 (1963)............................................. 6

Agostini v. Felton,

521 U.S. 203 (1997)......................................11, 16

Brentwood Acad. V. Tenn. Secondary Sch. Athletic

Ass’n,

531 U.S. 288 (2001)........................................... 15

Brown v. Bd. of Educ.,

347 U.S. 483 (1954)...................................... 31-33

Carson v. Makin,

596 U.S. 767 (2022)......................................12, 16

Davis v. Beason,

133 U.S. 333 (1890)........................................... 20

Drummond ex rel. State v. Oklahoma Statewide

Virtual Charter School Board,

558 P.3d 1 (Okla. 2024) .................................... 11

Edwards v. Aguillard,

482 U.S. 578 (1987)............................................. 7

Engel v. Vitale,

370 U.S. 421 (1962)............................................. 6

Epperson v. Arkansas,

393 U.S. 97 (1968)............................................... 7

Espinoza v. Montana Dept. of Revenue,

591 U.S. 464 (2020)......................................12, 16

Everson v. Bd. of Educ.,

330 U.S. 1 (1947)............ 3, 9-10, 20-21, 26, 28-29

Garcia v. San Antonio Metro. Transit Auth.,

469 U.S. 528 (1985)...................................... 14-15

Glassroth v. Moore,

229 F. Supp. 2d 1290 (M.D. Ala. 2002) ............ 19

Janus v. Am. Fed’n of State, Cnty., and Mun.

Emps.,

585 U.S. 878 (2018)...................................... 29-30

Lemon v. Kurtzman,

403 U.S. 602 (1971)............................ 2, 10-11, 17

McCollum v. Bd. Of Educ.,

333 U.S. 203 (1948)............................................. 5

McCreary County v. Am. Civil Liberties Union of

Ky,

545 U.S. 844 (2005)............................................. 9

Nat’l Endowment of the Arts v. Finley,

524 U.S. 569 (1998)...................................... 30-31

Pleasant Grove City v. Summum,

555 U.S. 460 (2009)........................................... 30

Plyler v. Doe,

457 U.S. 202 (1982)...................................... 31-32

Rendell-Baker v. Kohn,

457 U.S. 830 (1982)........................................... 15

Reynolds v. United States,

98 U.S. 145 (1879)............................................. 20

Stone v. Graham,

449 U.S. 39 (1980)............................................... 7

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

582 U.S .499 (2017)......................................12, 16

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943)...................................... 28-29

Wooley v. Maynard,

430 U.S. 705 (1977)...................................... 28-29

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)..........................11, 12, 16, 29

Codes, Constitutions,

Regulations & Statutes

Executive

Orders,

The Declaration of Independence .......................... 24

Oklahoma Charter School Act, Okla. Stat. tit. 70, §

3-134 (B) (1-35) ................................................. 15

U.S. Const. amends. I, XIV ................ 3, 18-20, 32-33

Va. Declaration of Rights § 16 .................... 19-21, 23

vii

Virginia Statute for Establishing Religious Freedom

(1786).................................... 3-4, 20-22, 25-26, 29

Other Authorities

William Barr, Speech at Alliance Defense Fund

Awards Banquet, May 20, 2021 ...................... 8-9

Nathan Chapman & Michael W. McConnell,

Agreeing to Disagree: How the Establishment

Clause Protects Religious Diversity and Freedom

of Conscience 146 (2023) ................................... 32

Gordon A. Crews, A Study of School Disturbances

in the United States: A Twentieth Century

Perspective, Part Two, Marshall Digital Scholar

(1996)................................................................... 6

Philip Hamburger, Is the Public School System

Constitutional? Wall Street Journal, Oct. 23-24,

2021, p. A13 ..................................................... 8-9

Holy Bible, Colossians 1:16-17; 2:3, Matthew 8:9;

23:24, II Corinthians 10:5 ................. 7, 24-25, 30

James Madison, Federalist, No. 46 ....................... 32

James Madison, Memorial and Remonstrance in

Opposition to Religious Assessments (1786) .......

...................................................................... 20-24

Richard L. Perry (ed.), Sources of our Liberties 312

(American Bar Foundation 1978) .................... 19

viii

Paul E. Peterson, The Decline and Fall of American

Education, Hoover Institution, Jan. 30, 2003 ... 6

John Ragosta, Religious Freedom: Jefferson’s

Legacy, America’s Creed (2013) ............. 18-19, 22

The Removal of Character Education from the

Public Schools and America’s Moral Decline

Since 1963, in William Jeynes and David W.

Robinson (editors), International Handbook of

Protestant Education 25-47 (2012)..................... 6

Laurence H. Tribe, American Constitutional Law

(Foundation Press 1978)................................... 27

Jeffrey C. Tuomala, Christian Legal Education:

From Bologna to Lynchburg and Beyond, 19

Liberty U. L. Rev. 60-65 (2024) ........................ 25

Jeffrey C. Tuomala, Is Tax-Funded Education

Unconstitutional? 18 Liberty U. L. Rev. 1009

(2024)................................................................... 8

Roberto M. Unger, Law in Modern Society (The

Free Press 1976) ............................................... 25

George Washington, Farewell Address, September

19, 1796 ............................................................... 7

INTEREST OF AMICUS CURIAE1

Amicus curiae Foundation for Moral Law (“the

Foundation”) is a 501(c)(3) non-profit, national

public interest organization based in Alabama,

dedicated to defending religious liberty, God’s moral

foundation upon which this country was founded,

and the strict interpretation of the Constitution as

intended by its Framers who sought to enshrine

both. To those ends, the Foundation directly assists

or files amicus briefs in cases concerning religious

freedom, the sanctity of life, and other issues that

implicate the God-given freedoms enshrined in our

Bill of Rights. The brief’s principal author, Jeffrey

Tuomala, is a constitutional scholar and professor of

law at Liberty University School of Law. His career

has been dedicated to teaching and restoring the

moral foundations of law.

The Foundation has an interest in this case

because it believes that the State of Oklahoma’s

denial of charter school status to St. Isidore. The

Foundation believes that the root cause of these

infringements is tax-funded education writ large,

which necessarily promotes the establishment of

religion, be it secularism or otherwise. However, to

the extent that tax-funded education is public policy,

it cannot discriminate against religion.

1 Pursuant to Rule 37.6, amicus curiae certifies that no party

or party’s counsel authored this brief in whole or in part, or

contributed money that was intended to fund its preparation

or submission; and no person other than the amicus curiae, its

members, or its counsel, contributed money that was intended

to fund the preparation or submission of this brief.

SUMMARY OF THE ARGUMENT

Since 1947, when this Court first incorporated

the Establishment Clause into the Fourteenth

Amendment, it has claimed that the state must

maintain neutrality

between religion and

nonreligion or between believers and unbelievers.

This case provides an opportunity for the Court to

move a step closer to achieving that ideal by siding

with the Oklahoma Statewide Virtual Charter

School Board (Charter School Board) against the

Oklahoma Attorney General in giving St. Isidore, a

Catholic charter school, equal treatment with

“nonsectarian” charter schools.

One of the main reasons that the Court has failed

in the past to require equal treatment for religion

and nonreligion is that it has falsely bifurcated

reality between the “secular” and the “religious”

without defining either term. This bifurcation is

most obvious in the Court’s formulation of the

Lemon test, whose death has been widely rumored

and, in some quarters, celebrated. The term

“secular” usually appears to be used synonymously

with the term “nonreligion,” and somehow, labeling

a particular government action secular justifies

discrimination against religion.

A noticeable shift in the Court’s Establishment

Clause jurisprudence in the 1990s from a

separationist approach to a non-preferentialist

approach ameliorated in some small degree the

disparity of treatment between religion and

nonreligion for educational funding. In the current

decade, the Court’s Free Exercise Clause

jurisprudence has served, in principle, to require

equal funding of religion and nonreligion. The Court

also seems to have minimized the effects of the false

bifurcation of secular and religious. Following this

trajectory, the Court should rule in favor of the

Charter School Board and St. Isidore.

The Court’s inconsistency in ensuring neutral

treatment for religion and nonreligion, and its false

bifurcation of reality between the secular and

religious, are rooted in its failure to provide a

carefully articulated and satisfactory definition of

religion. Frequently, difficult legal issues cannot be

resolved by trying to narrowly focus on an issue but

rather by taking a more enlarged view of the

problem. That is certainly true in the case of trying

to provide a definition of religion as it is used in the

legal context of our Constitution.

The term religion is defined in the Virginia

Declaration of Rights, and that definition provides

the foundation for the Virginia Statute for

Establishing Religious Freedom (Virginia Statute),

which the

Everson

Court

recognized as

encapsulating the same objective and protection as

the First Amendment. The Virginia definition draws

a jurisdictional line between civil government and

religion. Matters that are properly governed by

“force or violence” are within the jurisdiction of civil

government. All other matters are within the

jurisdiction of religion because they are governed

exclusively by conscience.

Religion as defined in Virginia includes all

matters falling outside the jurisdiction of civil

government. By properly defining religion, the Court

would necessarily provide the foundation for

resolving the problems that arise under the state

action doctrine. Either way the Court rules on the

state action question, funding for St. Isidore creates

an establishment problem, but failure to fund

creates a neutrality between religion and

nonreligion problem. The challenge for the Court is

to develop, or perhaps it is more appropriate to say

to adopt, a jurisprudence that provides an objective

standard for judging which matters fall within the

respective jurisdictions of civil government and

religion.

The Virginia Statute identifies two fundamental

principles of liberty. The first is that “God has

created the mind free” and the second is that it is

“sinful and tyrannical” to tax a person for the

“propagation of opinions which he disbelieves.”

Compulsory attendance at tax-funded public schools

violates both principles, but the Court has been

inconsistent in acknowledging and applying these

fundamental principles of liberty. Even if Oklahoma

repealed its compulsory education laws, but funded

all educational ventures equally, it would violate the

second principle.

All tax-funded education constitutes an

unconstitutional

establishment

religion;

therefore, tax funding for St. Isidore violates the

Establishment Clause. But tax-funding for

“nonsectarian” education, be it charter schools,

traditional public schools, private schools, or

homeschools also constitutes a violation of the

Establishment Clause. It would be a greater

injustice not to afford St. Isidore equal protection

with all the other educational establishments that

Oklahoma funds. Therefore, the Court should put an

end to disparate treatment of religion by ruling in

favor of the Oklahoma Charter School Board and St.

Isidore.

ARGUMENT

I. The charter school and other educational

initiatives are driven by the religious

cleansing of the public schools and

consequent disfunction of those schools.

St. Isidore recognizes the importance of religious

faith—in this case, the Catholic faith—for

education. The problem is that it wants to foster its

vision of religiously based education at the expense

of taxpayers who do not share that vision. But this

problem is not unique to St. Isidore; it is a problem

endemic to all tax-funded education. All education

is based on some ideological view of the world,

whether categorized as philosophical, theological, or

something else.

The fundamental question is whether education

is properly within the jurisdiction of civil

government. Does the state have jurisdiction over

the mind (how we think) and over the heart (what

we value)? Besides the jurisprudential question of

whether the state has jurisdiction over the hearts

and minds of children is the practical question of

whether compulsory attendance at tax-funded

schools is efficacious in winning hearts and minds.

A. The religious cleansing of public schools

has harmed education.

The cleansing of religion from public schools

began in 1948 with the Court’s decision in McCollum

v. Board of Education, 333 U.S. 203 (1948). By the

early 1960s, that cleansing reached its denouement

with decisions outlawing state sponsored prayer and

Bible reading in public schools. Engel v. Vitale, 370

U.S. 421 (1962) (outlawing prayer) and Abington

School District v. Schempp, 374 U.S. 203 (1963)

(outlawing Bible reading). Those decisions helped

trigger the Chrisitan school and homeschool

movements of the 1970s and 80s. Additionally, many

states adopted a variety of measures to provide some

aid to private religious schools and thereby lessen

the financial burden on families who had to pay

taxes and tuition to follow the dictates of conscience.

Whether or not the abolition of prayer and Bible

reading contributed to the dysfunction in public

schools, a decline in academic performance and

standards of behavior followed. See Paul E.

Peterson, The Decline and Fall of American

Education, Hoover Institution, Jan. 30, 2003; 2

Gordon A. Crews, A Study of School Disturbances in

the United States: A Twentieth Century Perspective,

Part Two, Marshall Digital Scholar (1996); 3 The

Removal of Character Education from the Public

Schools and America’s Moral Decline Since 1963 in

William Jeynes and David W. Robinson (editors),

International Handbook of Protestant Education 2547 (2012).4

https://www.hoover.org/research/decline-and-fall-americaneducation

3 https://mds.marshall.edu/cgi/viewcontent.cgi?article=1032&c

ontext=criminal_justice_faculty

https://link.springer.com/chapter/10.1007/978-94-007-23872

Standards of conduct suffer in any organization

that lacks moral authority. A basic principle is that

a person and organization will have no authority if

not under authority. Matthew 8:9. A teacher may be

backed by a principal and a principal by higher

government officials, but, if those officials recognize

no higher authority than themselves, organizational

decline is sure to follow. As George Washington

warned, “[L]et us with caution indulge the

supposition that morality can be maintained

without religion. … [R]eason and experience both

forbid us to expect that national morality can prevail

in exclusion of religious principle.” Farewell

Address, September 19, 1796.

Academic performance suffers for other reasons

than lack of discipline. Students must have a greater

sense of purpose in life than being good tax paying

citizens and living the “American Dream” of having

more stuff. The meaning of life and a belief in the

unity of knowledge cannot be sustained by a belief

in evolutionary materialism through which the

universe is governed by chance or blind

determinism. The Court squelched the most modest

attempts by states to introduce students to a view of

the world that includes a Creator who endows them

with inalienable rights. See, e.g., Epperson v.

Arkansas, 393 U.S. 97 (1968); Stone v. Graham, 449

U.S. 39 (1980); and Edwards v. Aguillard, 482 U.S.

578 (1987).

0_2

B. Two highly respected jurists have

argued that the public schools as they

currently operate are unconstitutional.

Former Attorney General William Barr, after

surveying the history of the rise and demise of public

schools, has concluded that as the public schools

currently

operate,

they

compromise

the

Establishment Clause by “promoting a radical

secular belief system.” 5 He further concluded that

the Free Exercise Clause rights of children trapped

in those schools who do not want a foreign ideology

forced upon them are violated. Id.

One proposed solution is to implement a

comprehensive voucher system that provides

funding for a variety of educational options and thus

freedom of choice. Id. Barr’s critique of the current

state of education in America is compelling, but he

fails to define “religion.” Rather than advocating for

no educational establishment, he argues for a

system of multiple establishments much like the

type of system existing in some European countries.

Jeffrey C. Tuomala, Is Tax-funded Education

Unconstitutional?, 18 Liberty University Law

Review 1009, 1060, n.203 (2024).

Professor Philip Hamburger also argues that

state schools are unconstitutional insofar as they

don’t provide other options for parents, but he does

so on freedom of speech grounds. Compulsory

attendance in public schools that attempt to

indoctrinate children without providing state

5 William Barr, Speech May 20, 2021, Alliance Defense Fund

Awards Banquet.

financed alternatives constitutes compelled speech.

Like Barr, Hamburger suggests a voucher system as

a constitutional alternative to our predominant

current system. 6 Arguments under the Speech

Clause bolster arguments made under the religion

clauses that the state has no authority to prescribe

an orthodoxy of opinions and beliefs.

C. The history of attempts to ensure

neutrality

between

religion

and

nonreligion has trended toward equal

treatment.

Beginning with its decision in Everson, this

Court has stated that the religion clauses require

the government to maintain neutrality of treatment

between religion and nonreligion, as well as between

one religion and another.7 The religious cleansing of

public schools belies the Court’s claim that the states

must be neutral toward religion and nonreligion.

Although in some cases the Court has approved

equal treatment for religion and nonreligion (e.g.,

reimbursement for bus fare in Everson),

overwhelming financial support is for nonreligion,

and religious views are squelched. In recent years

the public schools have gone even further and

become a base for partisans engaged in the culture

war against traditional religious values.

Justices on the Court have taken two basic

approaches to the neutrality principle in cases

dealing with support for religious education,

Philip Hamburger, Is the Public School System

Constitutional? Wall Street Journal, Oct. 23-24, 2031, at A13.

7 See, e.g., McCreary Cnty v. Am. Civil Liberties Union of Ky .,

545 U.S. 844, 860 (2005).

whether the aid goes directly to schools or indirectly

to parents or students. For separationists on the

Court, neutrality allows tax-funding for secular

(non-religious) education but not for religious

education. See, e.g., dissenters in Everson. For nonpreferentialists on the Court, neutrality has meant

that the state may fund at least the secular

component of religious schools, but it is not required

to provide any funding for personnel, material, or

services support at all. See, e.g., the majority in

Everson.8

Both separationists and non-preferentialists

advocate very strange notions of neutrality. The

state taxes everyone and provides so-called nonreligious education that is free, but parents who are

motivated by conscience to provide their children

with a religious education must pay both taxes and

tuition. These notions of neutrality are supposedly

justified by a false bifurcation of reality between the

secular and religious. Things secular, including law,

inhabit the secular realm to be governed by

autonomous reason. Things religious, are banished

to the realm of personal belief and practice governed

by faith rather than reason. See Tuomala at 107579.

This bifurcation leaves the state free to establish

an orthodoxy of secular beliefs in public schools and

to prohibit teaching from a perspective based on the

authority of the Christian faith or any other

disapproved faith or ideology. Although the Court

has strongly hinted at the death of the Lemon test,9

See Tuomala, at 1079-1082.

Lemon requires a secular purpose, and prong

9 Prong one of

it will not be able to cast aside the secular-religious

bifurcation without a major shift in its thinking.

This false bifurcation of secular and religious

explains why the Oklahoma Attorney General has

taken his position of opposing religious charter

schools. The Oklahoma Charter School Board is

attempting to treat religion and nonreligion

neutrally. Quite commendably, St. Isidore rejects a

false bifurcation of the secular and religious in its

program of education: “[St. Isidore] fully

incorporates these [teachings of the Catholic

Church’s Magisterium] into every aspect of the

School, including but not limited to its curriculum

and co-curricular activities.” Drummond ex rel. State

v. Oklahoma Statewide Virtual Charter School

Board, 558 P.3d 1, 6 (Okla. 2024).

The Court’s separationist approach prevailed in

the 1970s and 1980s, but eventually the nonpreferentialist approach gained ascendency. Its

Establishment Clause jurisprudence since the 1990s

has trended toward an amelioration of the disparity

of treatment between religion and nonreligion. This

ascendancy is evident in the provision of tutors and

testing services in religious schools (Agostini v.

Felton, 521 U.S. 203 (1997)), provision of computers

and other equipment for religious schools (Mitchell

v. Helms, 530 U.S. 793 (2000)), and vouchers that

can be used in religious schools (Zelman v.

two prohibits state action that has a primary effect of

advancing or inhibiting religion. Lemon v. Kurtzman, 403 U.S.

602, 612-13 (1971). But just as the Court has not defined what

religion means in the First Amendment, it has not defined

what secular means in Lemon.

Simmons-Harris, 536 U.S. 639 (2002)). All these

funding and support schemes further the freedom of

choice in education, but the aid provided in those

cases still came nowhere near equality of treatment

for religion.

Separationists on the Court have expressed

moral indignation that “religious” speech they

disagree with should be supported by their taxes.

They claim it is a violation of their consciences, and

they are right, but their concern for the violation of

the consciences of other taxpayers appears totally

lacking. See, e.g., Zelman v. Simmons-Harris, 536

U.S. 639, 715 (2002) (Souter, J. Dissenting).

D. The shift of focus to the Free Exercise

Clause has, in principle, furthered the

equality of treatment between religion

and nonreligion.

The Court’s more recent Free Exercise Clause

jurisprudence holds greater promise for alleviating

lack of neutrality and the disparity of treatment

between religion and nonreligion. In a trilogy of

cases, Trinity Lutheran Church of Columbia, Inc. v.

Comer, 582 U.S. 449 (2017), Espinoza v. Montana

Department of Revenue, 591 U.S. 464 (2020), and

Carson ex rel. O.C. v. Makin, 596 U.S. 767 (2022),

the Court has required states to afford equal

treatment for religion and nonreligion, at least in

certain situations.

The financial impact of those decisions for

alleviating the disparity of treatment between

religion and nonreligion was quite small, but the

principle of equality if carried to its logical extent is

foundation shaking. That principle requires equal

funding for religious and non-religious charter

schools. In fact, it would require equal funding for

traditional religious schools and non-religious public

schools. In principle, equal funding for charter

schools is no different from vouchers that parents

could use in the school of their choice. The only

significant difference in some minds is that vouchers

go to the parents, whereas funds for charter schools

go directly to the schools—and that is why the

parties and amici have made the state action

doctrine so central to their briefs in this case.

Providing equal funding for St. Isidore and all

other educational choices would solve the problem of

inequality of funding for religion and nonreligion.

However, it would not solve the more basic question

of whether tax-funding of schools, like tax-funding of

churches, constitutes an unlawful establishment of

religion. That problem cannot be resolved without

defining “religion,” an essential task that the Court

has failed to perform. Its failure to define religion by

drawing a line between that which is within the

jurisdiction of civil government and that which is

within the jurisdiction of religion or conscience

explains its inability to provide a test for the “state

action” doctrine. For First Amendment purposes, all

human action falls within the jurisdiction of the

state or of religion; therefore, to define religion is to

conversely identify what belongs to Caesar.

II. Whether or not St. Isidore is deemed to be a

state actor, state funding for it constitutes

an establishment of religion.

A. The Court has been unable to formulate

an adequate test for identifying state

action.

A reasonable assumption is that the outcome of

this case hinges on the question of whether St.

Isidore is a state actor. This is clear from the

attention that the Oklahoma Supreme Court in its

opinion, as well as the parties and the amici, have

devoted to the state action question. The implication

is that if St. Isidore is a state actor it may not receive

state funding, but if it is not a state actor it may be

funded.

In Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985), the Court stated that

it was unable to distinguish between traditional and

non-traditional functions of civil government upon

which “state regulatory immunity” was based. In

effect, the Court rejected a history and tradition

approach for defining the functions of government.

But the Court also rejected any “a priori definitions

of state sovereignty,” meaning that it rejected a law

of nature approach. Id. at 547-48. Although there is

a role reversal in St. Isidore’s case—we have a

private party arguably playing the role of the state

rather than a state arguably playing the role of a

private party as in Garcia—the fundamental issue

is the same. Is it possible to distinguish between

state and private action? 10 Despite its decision in

Are the critical legal theorists right that there is no

Garcia, the Court has concluded that it is possible,

at least when applying the state action doctrine.

The Oklahoma Supreme Court referenced the

five “state actor” tests that the U.S. Supreme Court

identified in Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 198 (2001). The

Oklahoma Court focused on two of those tests—“the

entwinement and the public function tests.”

Drummond, 558 P.3d, at 11-12. Those two tests

appear to be the most relevant in this case. Based on

those tests, convincing arguments are made that St.

Isidore is a state actor, and equally convincing

arguments that it is not a state actor. Without a test

that defines the nature of the state, parties are left

to reason by analogy and to argue that the facts of

this case are more or less like the facts of cases that

the Court has previously decided.

The precedent that appears factually closest to

this case is Rendell-Baker v. Kohn, 457 U.S. 830

(1982). Perhaps the distinguishing fact is that the

school in Rendell-Baker independently pre-existed

the government contract to educate special needs

students, whereas in this case the creation of the

school and the formation of the contract under the

Oklahoma Charter Schools Act were nearly

simultaneous. Okla. Stat. tit. 70, § 3-134 (B) (1-35)

(See Brief in Opposition on Petition for Writ of

Certiorari 5-6).

principled distinction between the public and private realms?

Or if we do maintain the distinction, have we no better course

of action than the pragmatist who does whatever seems to

work, however “work” is measured?

B. If St. Isidore is not a state actor, failure

provide

equal

funding

with

nonsectarian schools likely violates the

Free Exercise Clause.

If St. Isidore is not a state actor, Oklahoma’s

failure to give it the same funding as non-religious

charter schools arguably constitutes a violation of

the Free Exercise Clause. This conclusion follows

from the Court’s decisions in the Free Exercise

trilogy of cases cited above—Trinity Lutheran,

Espinoza, and Carson. In principle, the extension of

the holdings in those cases to charter schools is

logical.

Any claim Attorney General Drummond makes

that equal funding of religious charter schools

violates the Establishment Clause is weakened by

the Court’s general shift towards a nonpreferentialist approach that religion and nonreligion may be treated equally. This shift is evident

in Agostini, Mitchell, and Zelman.

The Free Exercise trilogy of cases, as well as the

latest Establishment Clause cases serve to

undermine the effects of the false bifurcation

between the secular and the religious and to

ameliorate the harm caused by laws that

discriminate against religion and in favor of nonreligion in educational funding. The inexorable

movement of the Court’s religion clauses

jurisprudence is to require equal funding for all

educational options.

C. If St. Isidore is a state actor, it is more

likely that state funding constitutes a

violation of the Establishment Clause.

If St. Isidore, an admittedly religious school, is a

state actor, it logically follows that Oklahoma’s

funding constitutes an establishment of religion. It

might appear that the Oklahoma Constitution’s

“little Blaine Amendment” and implementing Act is

congruent with the Establishment Clause, but that

depends on the test that the Court applies. If rumors

of Lemon’s death are true, the history and tradition

test is probably most relevant. It could be argued

that the Founding generation’s friendliness toward

religion is evidence that tax-funded religious schools

do not constitute an establishment.

If Oklahoma, or any other state, were to remove

its statutory and constitutional exclusion of tax

funding for religious charter schools, and if charter

school cases are treated like school voucher cases,

then arguably tax-funded religious charter schools

would not violate the Establishment Clause. This

further assumes that the Court eliminates the false

bifurcation of secular and religious and allows equal

funding for both non-religious and religious charter

schools and school voucher schemes. As with any

religious school that is worth its salt, St. Isidore

acknowledges that its faith undergirds the entire

educational enterprise, so it would be impossible to

apportion tax-funding only to the secular portion of

the education it provides.

Logically, if the religion clauses require the

states to be neutral between religion and

nonreligion, Oklahoma would have to fund every

kind of education equally, including traditional brick

and mortar schools, charter schools, voucher

schemes, and homeschools. Following this line of

reasoning, establishment issues morph into equal

protection issues and become a logical extension of

the line of reasoning the Court adopted in the trilogy

of Free Exercise cases.

III. The Court must properly define religion as

it is used in the First Amendment.

Up to this point in the brief, “religion” has been

used in the narrow sense of a system of beliefs and

practices associated with a particular religious

cultus or sect. The term religion, as it is used in the

First Amendment and as informed by the definition

whose meaning was hammered out during the

Virginia establishment controversy, has a far

broader meaning than that usually associated with

a religious cultus or sect. That obviates the need to

try to shoehorn various “secular” -isms, like secular

humanism and atheistic humanism, into the mold of

religions readily identified by doctrine and practice.

For good reason, religious liberty has been called

the “fundamental liberty upon which all other forms

of civil liberty depend.”11 The reason that all other

forms of liberty depend on religious liberty is that

religion constitutes all forms of beliefs, speech, and

actions that are outside the jurisdiction of the state

and are therefore exclusively governed by

conscience. The Court, having failed to provide a

careful exposition of the definition of religion, leaves

John Ragosta, Religious Freedom: Jefferson’s Legacy,

America’s Creed 125 (University of Virginia Press, 2013).

nothing outside the jurisdiction of the state,

including the hearts and minds of the people. This

failure forced one federal judge to admit that he was

not able to “formulate” a definition of religion and

then claim that it would be “unwise and even

dangerous, to put forth as a matter of law one

definition of religion.” Glassroth v. Moore, 229 F.

Supp. 2d 1290, 1313 n. 5, 1314 (M.D. Ala. 2002).

A. A definition of religion and the basic

principles of religious liberty were

established

during

the

Virginia

establishment controversy.

On June 12, 1776, Virginia adopted its

Declaration of Rights,12 which included a provision

guaranteeing religious liberty and defining religion.

James Madison and George Mason coauthored

section 16:

Sec. 16. That religion, or the duty which we

owe to our Creator and the manner of

discharging it, can be directed only by reason

and conviction, not by force or violence; and

therefore all men are equally entitled to the

free exercise of religion, according to the

dictates of conscience; and that it is the

mutual duty of all to practise Christian

forbearance, love, and charity towards each

other.13

12 Virginia

may have been the colony most repressive of

religious liberty leading up to the War for Independence. See

Tuomala, at 1021-1024 (2024) (based largely on Ragosta,

Religious Freedom ch. 2.)

13 Richard L. Perry (ed.), Sources of our Liberties 312

(American Bar Foundation 1978).

This definition of religion became a focal point

around

which

the

Virginia

establishment

controversy culminated in 1786 with the enactment

of the Virginia Statute for Establishing Religious

Freedom. 14 In Everson v. Board of Education, 390

U.S. 1 (1947), this Court identified the Virginia

Statute as the progenitor of the First Amendment

Establishment Clause. U.S. Const. Amend I.

This Court has previously recognized that the

provisions of the First Amendment, in the

drafting and adoption of which Madison and

Jefferson played such leading roles, had the

same objective, and were intended to provide

the same protection against governmental

intrusion on religious liberty as the Virginia

statute. Reynolds v. United States, supra, at

98 U. S. 164 . . . Davis v. Beason, 133 U. S.

333, 133 U. S. 342.15

Although the Everson Court did not offer a

definition of religion, it did cite Reynolds v. United

States, 98 U.S. 145 (1878), which quoted part of the

definition provided in section 16 of the Virginia

Declaration of Rights. Id. at 163. The Everson Court

also cited Madison’s famous Memorial and

Remonstrance against Religious Assessments

(Remonstrance) in support of its decision. Everson at

12, n.12. Justice Rutledge’s dissent, agreeing with

See generally Tuomala, at 1016-38 for a survey of the key

persons, events, and documents involved in the Virginia

establishment controversy.

15 Everson, 390 U.S., at 13. In Davis v. Beason, 133 U.S. 333

(1890), which Everson cited, the Court gave a longer

explanation of the term “religion,” but cited neither Madison

nor Jefferson.

the importance of the Remonstrance, attached it as

an appendix to his opinion. Id. at 63. The

Remonstrance begins by quoting the definition of

religion from section 16 of the Virginia Declaration

Rights.

large

measure,

Madison’s

Remonstrance is an extended explication of that

definition of religion. Tuomala at 1029-34. The

“Virginia statute,” to which the Everson Court

referred is the Virginia Statute for Establishing

Religion Freedom. That Statute articulates two

fundamental principles of religious liberty. They

are, first, that “Almighty God hath created the mind

free,” and second, “that to compel a man to furnish

contributions of money for the propagation of

opinions which he disbelieves is sinful and

tyrannical.”

It is especially noteworthy that Virginia defines

religion by drawing a jurisdictional line between

matters belonging to the state and those belonging

to religion. Matters properly within the jurisdiction

of the state may be directed by “force or violence.”

Those matters belonging to religion may be directed

only by “reason and conviction.” Once a matter is

objectively determined to be outside the jurisdiction

of the state and within the jurisdiction of religion, a

person’s beliefs, words, and actions are governed

solely by the individual’s conscience. The individual

conscience, however, does not determine what falls

within the jurisdiction of religion. Tuomala at 102426.

Certainly, the parents’ decision whether to read

Curious George, The Federalist, or the Bible to their

children is governed by conscience, not by “force or

violence.” In other words, it is a matter within the

jurisdiction of religion, not civil government. The

state has no jurisdiction over the mind of the parent

or the child; thus, the state may not use force or

violence to decide what they may read or listen to.

Education is within the jurisdiction of religion;

therefore, all tax-funded education constitutes an

establishment of religion.

B. James Madison’s opposition to a bill that

Patrick Henry introduced resulted in

the Virginia Statute for Establishing

Religious Freedom.

1. Patrick Henry introduced “A Bill

Establishing a Provision for Teachers

of the Christian religion.”

The immediate flash point for the Virginia

establishment controversy was the proposal for taxfunded education to counter the breakdown of public

morals. Before the War for Independence, Virginia

taxed everyone for the support of the Anglican

Church but tolerated dissenting churches. To gain

support from the Presbyterians and Baptists for the

war effort, Virginia stopped exacting taxes for the

support of the Anglican Church. Ragosta at 58, 6062, 67, 74-75.

In 1785, hoping to counter the moral dissolution

that accompanied the war effort, Patrick Henry

introduced “A Bill Establishing a Provision for

Teachers of the Christian Religion,” 16 which, if

Id. at 13. Justice Rutledge’s dissenting opinion appended

Madison’s Memorial and Remonstrance and Henry’s Bill for

Establishing a Provision for Teachers. Id. at 63, 72 (Rutledge,

J., dissenting).

enacted, would have established a voucher system

for funding moral instruction. Taxpayers would

direct payment to the “society of Christians” of their

choice or to a fund for the establishment of public

schools. Tuomala at 1026-28.

St. Isidore, in arguing for equal funding of

religious and nonreligious charter schools, has taken

a position very similar to Henry’s Bill that would

have provided equal funding for educational choices.

The main difference between Virgina and the

Oklahoma Charter School Board is that Virginia

rejected Henry’s Bill as contrary to the fundamental

principle that “God has created the mind free” and

that it is “sinful and tyrannical” to tax a person “for

the propagation of opinions which he disbelieves.”

2. Madison issued a Memorial and

Remonstrance in opposition to

Religious Assessments to oppose

enactment of Henry’s Bill.

To rally opposition to defeat Henry’s Bill, James

Madison wrote his famous Remonstrance. He began

by quoting Virginia’s definition of religion from

section 16 of the Declaration of Rights. Several

important points must be emphasized. First, the

definition is from a legal document, not a theological,

psychological, or sociological treatise on religion.

The Declaration defines religion as all matters that

are properly directed only by “reason and

conviction.” The state’s jurisdiction extends only to

those matters that may properly be directed by

“force or violence.” Taxation for moral instruction is

obviously backed by force or violence.

Madison identified the objective standard by

which to determine the respective jurisdictions of

civil government and individual conscience. He

invoked “our Creator,” or “Universal Sovereign” who

governs by “the light of Christianity,” “the light of

revelation,” and “Truth.” Remonstrance paras. 1, 12.

In other words, it is the Christian faith based most

clearly and authoritatively in the Bible that places

jurisdictional limits on the state, thus guaranteeing

the freedom of conscience for those matters falling

within the jurisdiction of religion. The Declaration of

Independence likewise recognizes the distinction

between the Creator and the creature, thus

providing the only possible basis for objective

standards of law and jurisdictional restrictions on

state power that guarantee religious liberty.

Madison appealed to our Creator and Universal

Sovereign as the objective source of our rights.

“[Religion] is unalienable also, because what is here

a right towards men, is a duty towards the Creator.

It is the duty of every man to render to the Creator

such homage and such only as he believes to be

acceptable to him.” Of course we owe a duty to God

in everything we do, but here Madison distinguishes

those matters owed exclusively to God—and not

within the jurisdiction of the state—to be religion.

God is the source of all law, but he has not given the

state jurisdiction to set up institutions designed for

the purpose of telling citizens what we must think

and value. Tuomala at 1110-18.

A curriculum based on the truth of Christianity

is the only one that provides a basis for belief in the

objectivity of truth and unity of knowledge, because

in Christ all things were created and in Him all

things hold together. Colossians 1:16-17 (NIV). All

people, whether they acknowledge it or not, have a

duty to make every thought captive to Christ (2

Corinthians 10:5 (NIV)), in whom is hidden “all the

treasures of wisdom and knowledge” (Colossians 2:3

(NIV)).17 The state has no jurisdiction over the mind

because every thought is to be made captive to

Christ, who Himself chose not to propagate truth by

force or violence. Virginia Statute.

Acknowledging God as the source of authority for

the state, for law, and religious liberty does not

constitute a religious establishment. In fact, there is

no other basis for a belief in the rule of law or rights

of any kind. This proposition is well-stated as a

rhetorical question:

What happens when the positive laws of the

state lose all touch with the higher law and

come to be seen as nothing more than the

outcomes of a power struggle? Can the ideals

of autonomy and generality in law survive the

demise of the religious beliefs that presided

over their birth?18

The answer is obviously “No!”

What the state may not do is set up institutions,

be they churches, schools, or media, for the purpose

of establishing an orthodoxy of opinion. Opinion

should be governed solely by one’s conscience as

See Jeffrey C. Tuomala, Christian Legal Education: From

Bologna to Lynchburg and Beyond, 19 Liberty U. L. Rev. 60-65

(2024).

18 Roberto M. Unger, Law in Modern Society 83 (The Free Press

1976).

directed by reason and conviction rather than force

or violence.

3. Virginia enacted the Statute for

Establishing Religious Freedom that

enshrines the fundamental principles

of religious liberty.

Not only did Madison defeat Henry’s Bill, but he

also persuaded the Virginia legislature to enact the

Virginia Statute for Establishing Religious

Freedom. That Statute, which the Everson Court

identified as particularly significant, articulated the

two principles of fundamental importance, that

“Almighty God has created the mind free,” and “that

to compel a man to furnish contributions of money

for the propagation of opinions which he disbelieves

is sinful and tyrannical.”

The Virginia Statute makes explicit what is

implied in the definition of religion: the imposition

of a tax for educational purposes constitutes

unlawful force or violence, which seeks to shape the

conscience. The conscience can be directed only by

reason and conviction and not by force or violence.

The entire state educational venture constitutes an

establishment of religion regardless of whether it

promotes a particular theological or philosophical

perspective, or many perspectives. The Statute

places even “opinions in physics and geometry”

within the Statute’s protection, thus belying any

false bifurcation of reality between “secular” and

“religious.” Tuomala at 1034-38.

As with the case of St. Isidore, the problem of

defining religion is usually not obviously in issue.

Here all parties have simply assumed that St.

Isidore as a Catholic Charter School is religious. If a

claimant says, “these are my religious beliefs,” and

if a court believes that they are sincerely held, those

beliefs are deemed religious. In other words, the

definition of religion is treated as subjective in

nature and thus varies from individual to individual.

See Tuomala at 1038-53 (addressing the problem of

defining religion subjectively).

If something constitutes religion under the Free

Exercise Clause, how can it not also constitute

religion under the Establishment Clause? Professor

Tribe suggested a possible fix: give religion a broad

definition under the Free Exercise Clause but a

narrow definition under the Establishment Clause.

Laurence H. Tribe, American Constitutional Law

826-28 (1978). Under Tribe’s approach, an activity

may be religion for free exercise purposes (e.g., use

of peyote), but not establishment purposes (e.g.,

accommodate only religious use of peyote). Of

course, Tribe does not provide a definition or source

of authority for defining religion under either clause.

If religion has no objective meaning under the

Establishment Clause, what authority, i.e., whose

subjective conscience, gives it meaning? It must be

the collective subjective conscience of the American

people in 1791 or 1868 for the originalist and the

ever-evolving collective conscience of the American

people for the non-originalist.

C. The Court has affirmed the fundamental

principles of religious liberty in

numerous cases.

Because the Court has not defined religion, it has

sent mixed signals regarding the freedom of the

mind, the power of the government to impose taxes

for the propagation of opinions, and the power of the

government to impose state-favored orthodoxies of

opinion.

On occasion, the Court has affirmed the principle

that God has created the mind free and that the

state has no jurisdiction to impose an orthodoxy of

opinion or belief by force or violence. An oft-quoted

and celebrated statement of these principles comes

from the Court’s opinion in W. Va. Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943):19

If there is any fixed star in our constitutional

constellation, it is that no official, high or

petty, can prescribe what shall be orthodox in

politics, nationalism, religion or other matters

of opinion or force citizens to confess by word

or act their faith therein.20

In Wooley v. Maynard, 430 U.S. 705 (1977), the

Court affirmed the proposition that the First

Amendment secures “the right of freedom of

See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 12–13 (1947);

id. at 22 (Jackson, J., dissenting); Schware v. Bd. of Bar

Exam’rs of N.M., 353 U.S. 232, 244 n.15 (1957); Agency for Int’l

Dev. v. All. for Open Soc’y Int’l, 570 U.S. 205, 220–21 (2013);

Wallace v. Jaffree, 472 U.S. 38, 51–52, 55 (1985); Wooley v.

Maynard, 430 U.S. 705, 714 (1977); Planned Parenthood of Se.

Pa. v. Casey, 505 U.S. 833, 851 (1992); Texas v. Johnson, 491

U.S. 397, 415 (1989); Lee v. Weisman, 505 U.S. 577, 638–39

(1992) (Scalia, J., dissenting); Beilan v. Bd. of Pub. Educ., 357

U.S. 399, 413 (1958) (Douglas, J., dissenting); First Unitarian

Church of L.A. v. Cnty. of Los Angeles, 357 U.S. 545, 548 (1958)

(Douglas, J., concurring).

20 Id. at 642.

thought.” Id. at 714.21 The Wooley Court recognized

the right as extending equally to “religious, political,

and ideological causes.” The rights to speak and

refrain from speaking “are complementary

components of the broader concept of ‘individual

freedom of mind.’” Id.22

On numerous occasions the Court or individual

justices have quoted or cited the Virgina Statute’s

maxim that it is “sinful and tyrannical” to tax a

person for the “propagation of opinions which he

disbelieves.”23 For example, in Janus v. Am. Fed’n of

State, Cnty., and Mun. Emps, 585 U.S. 878 (2018),

the Court ruled that public employees can’t be forced

to fund any category of labor union speech. In

support of that holding, the Court quoted the

celebrated statement in Barnette “that no official,

high or petty, can prescribe what shall be orthodox

in politics, nationalism, religion or other matters of

opinion.” Id. at 892 (quoting Barnette, 319 U.S. at

642). The Janus Court then quoted Jefferson’s Bill24:

Barnette, 319 U.S. at 633-34.

Barnette, 319 U.S. 637.

23 See, e.g., Everson, 330 U.S. at 12–13 id. at 45 (Rutledge, J.,

dissenting); Chi. Tchrs. Union v. Hudson, 475 U.S. 292, 305

(1986); Keller v. State Bar of Cal., 496 U.S. 1, 10 (1990);

McGowan v. Maryland, 366 U.S. 420, 465 (1961) (Frankfurter,

J., separate opinion); Int’l Ass’n of Machinists v. Street., 367

U.S. 740, 791 (1961) (Black, J., dissenting); Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 869–71 (1995)

(Souter, J., dissenting); Johanns v. Livestock Mktg. Ass’n, 544

U.S. 550, 572 (2005) (Souter, J., dissenting); Zelman v.

Simmons-Harris, 536 U.S. 639, 689 (2002).

21 Citing

22 Citing

24 Note that Jefferson’s Bill, with minor changes, was enacted

by the Virginia legislature as the Virginia Statute for

Establishing Religious Freedom.

“to compel a man to furnish contributions of money

for the propagation of opinions which he disbelieves

and abhors is sinful and tyrannical.” Janus, 585 U.S.

at 893. The Court drove its point further home by

citing Jefferson’s Bill a second time. Id. at 905.

Assume that Janus had been a public-school

teacher who was required to pay union agency fees.

It would be “sinful and tyrannical” to force him to

pay those fees. How much more sinful and

tyrannical is it to force taxpayers to pay a teacher’s

salary to propagate opinions the taxpayers

disbelieve? Not only that, but the taxpayers are also

forced to send their children to school for

indoctrination unless they opt out by paying tuition

to attend a private school. To label compulsory union

fees sinful and tyrannical, but not taxes for public

schools as sinful and tyrannical, constitutes a classic

case of “straining out a gnat but swallowing a

camel.” Matthew 23:24 (NIV).

D. The Court has not

fundamental principles

liberty in other cases.

upheld the

of religious

Contrary to the Court’s protections for freedom of

the mind in some cases, passages from opinions in

other cases can be cited for the proposition that one

of the high purposes of civil government is to tell

citizens what they should think and what they

should value at taxpayer expense. The Court in

Pleasant Grove City v. Summum stated that “[I]t is

the very business of government to favor and

disfavor points of view.” 555 U.S. 460, 468 (2009)

(quoting Scalia, J. concurring opinion in National

Endowment for the Arts v. Finley, 524 U.S. 569, 598

(1998)).

Although the Court has never held that people

have a constitutional right to a tax-funded education

that the states must provide, it has stated that the

establishment of public schools is instrumental for

inculcating proper values and political beliefs in

citizens. In Brown v. Bd of Educ., 347 U.S. 483

(1954), the Court in dicta touted what it considered

to be the importance of compulsory attendance at

public schools for “our democratic society.” “It is the

very foundation of good citizenship. Today it is a

principal instrument in awakening the child to

cultural values . . . .” Id. at 493. The mind is created

free, but the state has the power to prescribe what

children shall believe and value regarding politics?

In Plyler v. Doe, 457 U.S. 202 (1982), the Court

made similar claims about the importance of public

schools for imposing a system of acceptable political

values:

We have recognized “the public schools as a

most vital civic institution for the

preservation of a democratic system of

government,” and as the primary vehicle for

transmitting “the values on which our society

rests.” . . . And these historic “perceptions of

the public schools as inculcating fundamental

values necessary to the maintenance of a

democratic political system have been

confirmed by the observations of social

scientists.” . . . In sum, education has a

fundamental role in maintaining the fabric of

our society.25

Both Brown and Plyler contain odes to the power

and importance of public schools as a means of

imposing an orthodoxy of opinions, beliefs, and

values on children. Even though public schools were

virtually nonexistent at the time of the founding of

this nation and could not have been essential for

creating the fabric of our society, those schools are

apparently necessary for maintaining it.26 Perhaps

it is a different society, cut from a different cloth and

changing with the latest trends, that the Court looks

to accommodate.

State funded education, especially that which is

compulsory and provided by the state, violates a

fundamental principle of our republican form of

government. In America the people are sovereign,

and governments are our agents. Madison, The

Federalist, No. 46. We are citizens, not subjects.

Citizens of a republic school their agents; agents

don’t school their principals.

CONCLUSION

The Court must take the initial steps of affirming

and explaining the definition of religion as it is used

in the First Amendment and of affirming the

fundamental principles of freedom of the mind and

the lack of civil power to establish an orthodoxy of

thought. Based on those principles, state funding for

Id. at 221 (citations omitted).

See Nathan Chapman & Michael W. McConnell, Agreeing to

Disagree: How the Establishment Clause Protects Religious

Diversity and Freedom of Conscience 146 (2023).

St. Isidore constitutes an unlawful establishment of

religion whether it is a state actor or not. But those

principles make tax-funding of any education an

unlawful establishment.

In Brown v. Board of Education, the Court ruled

that discrimination on the basis of race violated the

Equal Protection Clause and ordered an end to

segregated schools. Tax-funding for those schools

constituted an establishment of religion, but racial

discrimination only compounded that wrong.

Similarly, in this case, discrimination based on

religion only compounds the wrong done by the

funding of education in violation of the

Establishment Clause. Two wrongs do not make a

right, but one right—the equal treatment of

religion—can ameliorate the wrong of establishing

religion.

In this case the Court should put an end to

disparate treatment of religion by ruling in favor of

the Oklahoma Charter School Board and St. Isidore.

Respectfully submitted,

Roy S. Moore*

*Counsel of Record

Jeffrey Tuomala

Talmadge Butts

FOUNDATION FOR MORAL LAW

P.O. Box 148

Gallant, AL 35972

(334) 262-1245

March 12, 2025

kayla@morallaw.com

jtuomala.home@outlook.com

talmadge@morallaw.org

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.