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The first words of the First Amendment to the US Constitution are: “Congress shall make no law respecting an establishment of religion.”
That’s pretty clear. We know what Congress is. We know what a law is. We know what religion is.
But too often people have interpreted this to mean that government and religion must be completely separate — which was not the intention.
On Wednesday, the Supreme Court heard a case that challenges this belief, and could allow states to be free once again to enact religious policies they believe best serve their citizens.
Justices in the past have noted that the Establishment Clause’s whole purpose was to protect states from federal action on matters of religion.
The most respected justice of his time, Joseph Story, wrote in 1833 the Establishment Clause’s “real object” was “to prevent any national ecclesiastical establishment,” by leaving “the whole power over the subject of religion . . . exclusively to the state governments.”
Yet the Supreme Court ruled in 1947 that the Establishment Clause, which limits what Congress can do, also limits what states can do.
It did so by invoking the 14th Amendment, which says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”
Never mind the Establishment Clause did not create a right in any individual but rather protected the states’ right.
As Sen. Mike Lee points out in his book “Our Lost Constitution: The Willful Subversion of America’s Founding Document,” later Supreme Court justices — such as Potter Stewart and Clarence Thomas — noted the irony of using the Establishment Clause’s language, designed to protect state laws on religion, as a weapon to nullify those same laws.
So how did the Supreme Court do such a thing? The story rests on the shoulders of Justice Hugo Black — a former avowed Ku Klux Klan member who incorporated its stated goal of eliminating Catholic parochial schools into an opinion he wrote for the court, prohibiting the use of state funds for even such schools’ nonreligious expenses.
That opinion, and the fact he was on the court in the first place, is an embarrassment to the reputation of our highest judicial body.
The issue is now central in a case out of Oklahoma, argued Wednesday before the Supreme Court.
Hugo Black’s decision created a bizarre precedent the court has had to wrestle with ever since — chipping away at it, piece by piece.
Will the court take this opportunity to right the wrong more broadly by reversing that precedent outright, by name?
As Justice Brett Kavanaugh said Wednesday, “some of the most important cases we’ve had” say, “You can’t treat religious people and religious institutions and religious speech as second class in the United States.”
And as Justice Samuel Alito noted, Oklahoma’s ban on religious public schools has an “unsavory discriminatory history.”
The students whose futures hang in the balance are those in rural Oklahoma who want a quality education from the St. Isidore of Seville Catholic Virtual School — a would-be charter school whose survival depends on being able to depend on state funding.
We should all pray the court gives school choice — including charter schools such as St. Isidore — a real chance. It may be our only shot to rescue our children from the rubble of a public school system that has failed them — and all of us.
Phillip C. McGraw, Ph.D., a k a Dr. Phil, hosts “Dr. Phil Primetime” on MeritTV, the multiplatform TV network he founded in 2024.
He was born in Oklahoma, attended elementary and middle school in Oklahoma and began his college career at the University of Tulsa.
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