Oklahoma special-needs children recently lost a battle in their four-year war for education freedom. But it isn’t just their opportunity for a better education that’s at stake. Oklahoma’s commitment to religious freedom, pluralism, and social harmony between people of different beliefs is also implicated. If Oklahoma wants to be a state where people of many beliefs share the public square in peace, there are both principled and practical reasons to expand school choice as far as possible.

In late August, Oklahoma County District Court Judge Bernard Jones ruled that some uses of Oklahoma’s school choice program for special-needs students violate the state constitution. The program allows families to choose a private school, so they are no longer at the mercy of the often-dysfunctional special-education bureaucracy in the government monopoly system. The program doesn’t harm public schools—studies find programs like this one have beneficial effects on public schools—and it doesn’t cost taxpayers a dime.

It does, however, treat church-affiliated private schools in exactly the same way as all other private schools. The program does not allow the state to discriminate against these schools by excluding them from the program on grounds of their faith. Such disgusting bigotry is not part of the program’s design.

That, according to the judge, is the problem. Like those of many states, Oklahoma’s constitution is marred by a “Blaine Amendment” that forbids the state to spend money “for the use, benefit, or support” of religious institutions. Such provisions are named in dishonor of the bigoted James G. Blaine, who built his political career on vicious hatred of Catholics.

States like Oklahoma can put this ugly past behind them by interpreting such provisions to require only that religious institutions receive no favoritism in the use of public funds. Justice and common decency demand it. And if those are insufficient to move us to such a policy, the equal protection clause of the federal constitution might provide an additional impetus.

One would think this was only common sense: If the church is burning down, don’t call the fire department! That’s using government funds to benefit a church. If someone scrawls swastikas on the synagogue, don’t call the police! And heaven forbid we allow the mosque to use our municipal water and sewer lines. Alas, Judge Jones doesn’t see things that way, and the case will continue its four-year journey through the courts.

Parents can still use the program at some schools, but even this raises urgent questions about Oklahoma’s commitment to religious freedom. Thanks to a quirk in the phrasing of the constitution and the judiciary’s interpretations of it, not all religious institutions are covered by the ban, only those that are formally part of a church. In addition to non-religious schools, schools that are “religiously affiliated” but not “church affiliated” are still eligible for the choice program.

This may seem like good news, and I do appreciate that it represents a well-intentioned effort to restrain the destructive logic of Blaine Amendments. However, it puts the state in a position of choosing which schools are church-affiliated and which are not. That may seem simple, but it isn’t. Are non-diocesan Catholic schools church affiliated? How about a school that shares a building and board members with a church? How about a school that subscribes to a faith statement historically associated with a denomination?

Such complexities are actually the least serious of the problems created by this approach. A more serious problem is the opportunity to use such judgment calls as a cover for arbitrary favoritism. Politically well-connected schools will be more likely to get the coveted “religious but not church-affiliated” designation.

The worst problem is that government shouldn’t be interpreting the meaning of religious questions in the first place. “What is a church?” is a deeply theological issue. Sometimes government can’t help but face such questions, such as when courts have to settle civil disputes between church bodies or gauge the limits of free exercise of religion. But we want to keep law and politics as far away from theology as we possibly can.

The irony here is that school choice is actually one of the best ways ever discovered to promote religious freedom, pluralism, and peace. It’s folly to be afraid of letting religious institutions participate in public programs on the same terms as everyone else. That kind of oppressive Kemalism has only exacerbated religious hatred when it’s been tried in places like Turkey or France. Americans have historically been more enlightened.

Believe it or not, school choice often helps children learn to respect the rights of those who don’t share their faith, and has never been found to have the opposite effect. A large body of empirical research (reviewed by Patrick Wolf in an article titled “Civics Exam” in the journal Education Next) finds that private school students are more likely to support civil rights for those whose beliefs they find highly unfavorable. Five of these studies have specifically looked at school choice programs; of those, three found the choice students were more tolerant of the rights of others while two found no difference. No empirical study has ever found that school choice makes students less tolerant of the rights of others.

There are a number of reasons why private schools might be more effective at teaching toleration. One is that private schools are more effective at teaching in general. If they teach math and reading better, why not respect for the rights of others?

More important, though, is the freedom of private schools to explain why we should respect others. Because they are a compulsory public monopoly, public schools cannot ground moral imperatives in a view of the universe that justifies
them. Public schools usually do try to teach students virtues like honesty, diligence, self-control, and respect for others. But they cannot explain why we ought to have these virtues, because any substantial answer to that question would offend some parents. So they rely on a mixture of sentimental gas and stern finger-wagging, neither of which is highly effective. Private schools can not only tell you that you should respect others, they can tell you why.

School choice not only respects everyone’s equal rights today, it helps raise up generations who will do the same tomorrow. Everyone from evangelicals to atheists benefits from that. At last, something that can bring us all together! Oklahoma can’t get rid of its Blaine Amendment fast enough.

Greg Forster (Ph.D., Yale University) is a senior fellow with the Friedman Foundation for Educational Choice. He is the author of five books, and has written numerous articles in peer-reviewed academic journals as well as in popular publications such as the Washington Post and the Chronicle of Higher Education. His latest book is Joy for the World: How Christianity Lost Its Cultural Influence and Can Begin Rebuilding It (Crossway Books, 2014).