Dr. Phil has something to say about religious liberty and public education.
The TV therapist made popular by Oprah has taken a very public conservative bent lately, and this week he wrote an op-ed for the New York Post explaining why the traditional view of First Amendment religious liberty is all wrong.
When the First Amendment states, “Congress shall make no law respecting an establishment of religion,” that only applies to the federal government and not the states, Phil McGraw said in the piece. Thus, the Oklahoma Charter School Board was well within its rights to approve public funding for a Catholic charter school, he argued.
That was the subject of a case appearing before the U.S. Supreme Court this week. The case pits a modern conservative view of religious liberty against a more traditional view. Conservatives, including those wanting public funding for the Oklahoma charter school, emphasize the Free Exercise Clause of the First Amendment over the Establishment Clause. They often argue, as was done in the Supreme Court hearing April 30, that free exercise takes precedence over prohibitions against favoring one religion over another.
But McGraw took a different tack entirely. The Establishment Clause, he argued, should only prohibit the federal government from favoring one religion and directing states in such a manner. But states, he said, should have free reign to favor whatever religion they want.
“The Establishment Clause’s whole purpose was to protect states from federal action on matters of religion.”
“Justices in the past have noted that the Establishment Clause’s whole purpose was to protect states from federal action on matters of religion,” McGraw wrote. “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.’”
The problem, as McGraw sees it, is a 1947 Supreme Court ruling that “limits what states can do.”
Ironically, the ruling in that case, Everson v. Board of Education, actually favored some public funding of religious education. The court upheld a New Jersey law that reimbursed parents for transportation costs to both public and religious schools. Including the religious schools in the program did not violate the Establishment Clause of the First Amendment, the court ruled.
However, to make that decision, the Supreme Court also declared the Establishment Clause could be enforced against states through the 14th Amendment.
The 14th Amendment, adopted in 1868, extended the protections of the Bill of Rights to the states, a process known as “incorporation.” That’s the part McGraw doesn’t like.
“Never mind the Establishment Clause did not create a right in any individual but rather protected the states’ right,” he wrote.
Notably, the 14th Amendment also clarified some other major issues in a nation that at the time was less than a century old.
It guaranteed citizenship and equal rights to formerly enslaved people and their descendants, thus setting up a legal basis for the Civil Rights Movement. It also reinforced the doctrine of birthright citizenship and equal protection under the law, two legal protections currently under assault by the Trump administration.
McGraw then blames the nation’s current confusion on religious liberty on former Supreme Court Justice Hugo Black, who he calls “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.”
“Hugo Black’s decision created a bizarre precedent the court has had to wrestle with ever since — chipping away at it, piece by piece.”
While Black was a former member of the Klan, his legacy as a senator from Alabama and as a Supreme Court justice offers a mixed bag of ideology. One thing is certain: Black was a devoted evangelist for President Franklin Delano Roosevelt’s New Deal — another legacy Trump and his allies are working to dismantle.
For good or for ill, Black is considered one of the most consequential and influential justices in American history.
McGraw claims: “Hugo Black’s decision created a bizarre precedent the court has had to wrestle with ever since — chipping away at it, piece by piece.”
McGraw is a native Oklahoman, and he sees the Oklahoma Supreme Court case as pivotal for reclaiming a lost heritage.
“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,” he wrote. “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.”
The day after the Supreme Court hearing, McGraw was at the White House where President Trump named him to serve on a controversial new Religious Liberty Commission. The Rose Garden ceremony coincided with the National Day of Prayer.
“I can’t tell you how proud I am to see religion coming back to the White House,” McGraw said. “God bless you for doing this.”
Trump created the Religious Liberty Commission by executive order to “vigorously enforce the historic and robust protections for religious liberty enshrined in federal law.”
Related articles:
Supreme Court appears inclined to establish Free Exercise Clause
Oklahoma Supreme Court says Catholic charter school unconstitutional
Supreme Court will hear Oklahoma charter school case
Opponents file suit to stop unprecedented Catholic charter school in Oklahoma