Yesterday, the U.S. Supreme Court was handed another opportunity to interpret the First Amendment’s religion clauses correctly. This time, instead of “story time” books in Maryland’s public schools, the context for the oral argument was Oklahoma prohibiting a Catholic school from being a state tax supported charter school. I expect the Court to get it wrong again, because everyone relies on judicial precedents, not the Constitution’s text and history.
I know the view of the First Amendment that follows is as mainstream in the Christian legal community as Martin Luther’s 95 Thesis was among Catholic theologians. But I write for a similar reason: I pray God would use my analysis and “sample” Court opinion to encourage Christian lawyers to reconsider what they are doing regarding the First Amendment. A constitutional reformation in regard to that amendment is needed.
If what I propose succeeds (and it may take multiple efforts), states can enact righteous laws without the U.S. Supreme Court holding them unconstitutional under the First Amendment’s religion and speech clauses. And Christians in those states won’t be asking for free-exercise-of-religion crumbs from the tables of ungodly rulers, as they were doing in Maryland.
The brief of Oklahoma’s attorney general rightly said, “the obvious question is whether Oklahoma’s charter schools are public schools.” If the answer is yes, the attorney general says Oklahoma cannot allow tax dollars to go to a clearly sectarian school that is effectively a government school.
The attorney’ general’s brief cites U.S. Supreme Court Establishment Clause precedents in its favor:
[T]he Establishment Clause embodies the Founders’ concerns that “the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services” was “one of the greatest dangers to the freedom of the individual to worship in his own way.” Engel v. Vitale, 370 U.S. 421, 429 (1962). This principle has particular salience for public education—where the Court has repeatedly held that a State cannot use “its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” Illinois ex rel. McCollum v. Board of Educ. of Sch. Dist. No. 71, Champaign Cnty., 333 U.S. 203, 211 (1948). Indeed, “[t]he Court has been particularly vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools.” Edwards v. Aguillard, 482 U.S. 578, 583-34 (1987).
Three U.S. Supreme Court precedents. Oklahoma wins!
Alliance for Defending Freedom, representing the Catholic school, denies that a charter school is really a government actor subject to the establishment precedents cited by the Oklahoma’s attorney general. But, in any event, it says, the prohibition violates the Court’s Free Exercise Clause precedents:
The Free Exercise Clause “protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Carson, 596 U.S. at 778 (cleaned up). So this Court has “repeatedly held that a State violates the … Clause when it excludes religious observers from otherwise available public benefits.” Ibid. (collecting cases). In recent years, this Court has “applied these principles in the context of [now three] state efforts to withhold otherwise available public benefits from religious organizations.” Ibid.
One U.S. Supreme Court Free Exercise precedent citing numerous other precedents. Oklahoma loses!
Instead of debating the proper application of arguably unreconcilable precedents, it would be helpful if the Court (and all attorneys) read the text of the whole First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. (emphasis supplied)
A quick lesson from my 7th Grade English teacher, Captain Russell Tate, would quickly clear up the problem with these precedents. Capt. Tate taught me how to diagram sentences.
I used AI to narratively “diagram” the one sentence that is the whole First Amendment and notice what the one subject of the whole sentence is (hint: it is not “state” or “states”):
We have one subject, one verb, and three clauses each connected to them by an “or.” If you see multiple subjects in this sentence, you need remedial education.
Merriam-Webster’s online dictionary can help the Court, too. It defines a “clause” as “a group of words containing a subject and predicate and functioning as a member of a complex or compound sentence.” That is exactly what we have in that one sentence!
Next, a lesson on semicolons. The dictionary says: “Semicolons (;) separate independent clauses that are related in meaning (sic) and they separate items in a list when those items are long or include commas. For example, this summary could say “Semicolons are useful; they show that clauses are related in meaning,” (emphasis supplied). That, too, is exactly what we have in that one sentence!
Now, let’s apply what we have learned today, and add to it the history of the clause I commented on previously.
I hope I can get the attention of the Court and those who practice before it. To that end, I will post an intentionally curt sample opinion on the Cross Politics community’s online door, and hope you share it:
As my esteemed colleague, Justice Thomas, once wrote:
“The question presented in this case is not whether our entire Fourteenth Amendment jurisprudence must be preserved or revised, but only whether, and to what extent, a particular Clause in the Constitution protects the particular right at issue here. With the inquiry appropriately narrowed, I believe this case presents an opportunity to reexamine, and begin the process of restoring, the meaning of the Fourteenth Amendment agreed upon by those who ratified it.”
McDonald v. City of Chicago, 561 U.S. 742, 812-13 (2010) (Thomas, J., dissenting) (emphasis added).
Indeed, it is time for a re-examination. And the particular “question presented in this case” respects the application of First Amendment’s religion clauses to the States “under our Fourteenth Amendment jurisprudence.” Id.
As my colleague said, on another day and in a particular case, we can determine whether a “particular clause” in amendments two through eight should continue to apply to the states “under our Fourteenth Amendment jurisprudence.” Id. Such a clause may have become, over our nation’s first century, one of “Privileges and Immunities” applicable by that Clause’s terms to “Citizens of the United States.” By that means and not a clause in the Fourteenth Amendment addressed to legal process, citizens in the states would have “national” rights. And I am of the opinion that our equal protection jurisprudence would require that non-citizens in the states be given the equal protection of those laws.
But the First Amendment cannot continue to be applied to the states through the Fourteenth Amendment’s Due Process Clause, as we have done in recent decades. Our doing so has rendered the clear grammatical thrust of the First Amendment meaningless and ignored the historical intent of its religion clause.
As to its grammatical meaning, this Court has said, “It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.” Marbury v. Madison, 5 US 137, 174 (1803).
Therefore, to employ any language in the Fourteenth Amendment in a way that would render meaningless a proper grammatical construction of the unique use of the word “Congress” in First Amendment in relation to its absence in the rest of the Bill of Rights is “inadmissible.” Nothing in the Fourteenth Amendment’s text makes it clear that the First Amendment’s application to Congress was abrogated. Therefore, all our First Amendment religion precedents to the contrary should be reversed.
Moreover, and from an historical perspective, Justice Story made the purpose of the First Amendment clear: it was only intended to prohibit a national ecclesiastical establishment. Story, Commentaries on the Constitution of the United States (1833), Secs. 1865-73. History is against our modern precedents.
Finally, the Blaine Amendment proposed to Congress after adoption of the Fourteenth Amendment testifies against our “Fourteenth Amendment jurisprudence.” McDonald, 561 U.S. at 812. It would have prohibited states from using tax money for sectarian purposes. Surely, it would not have received a two-thirds of the vote in the U.S. House of Representatives and a majority of the votes in the Senate if its members thought the Fourteenth Amendment had done what that amendment proposed.
Therefore, if Oklahoma’s Supreme Court says this use of Oklahomans’ tax dollars violates its Constitution, and it did, who are we to say otherwise on First Amendment grounds? The First Amendment’s religion clauses do not give this Court jurisdiction to legislate a tax and educational policy for those in Oklahoma.
