Radical Republican Supreme Court Tears Down What Remained Of The Wall of Separation And Church And State

Almost exactly two years ago I posted, SCOTUS tears down a section of the wall of separation of church and state (excerpt):

Founding Father James Madison must be turning over in his grave today. James Madison was the chief author of the Bill of Rights and thus of the First Amendment. He was the foremost champion of religious liberty.

James Madison’s “Memorial and Remonstrance Against Religious Assessments”, a document presented to the Virginia General Assembly in 1785, argued for complete religious liberty and against government support of religion in any form. Memorial and Remonstrance (The First Amendment Ecyclopedia):

Madison’s target was an assessment bill that would have imposed a general tax on Virginians to pay “teachers of the Christian religion” a modest salary. His efforts not only helped defeat the bill, but also created a political climate in Virginia that enabled him to secure passage the next year of the Virginia Statute for Religious Freedom, the first unreserved guarantee of religious liberty and full separation of church and state in U.S. history. The “Memorial” also reveals Madison’s thinking about religious freedom four years before he introduced a national Bill of Rights in 1789.

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Madison argued Christianity flourished best without the support of government. Religious establishments bred “pride and indolence in the clergy,” and the assumption that Christianity could not survive without the patronage of government was “adverse to the diffusion of the light of Christianity.”

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Madison’s ”Memorial” was widely circulated throughout the state, and with the support of Baptists and Methodists, who distrusted religious establishments from long experience, the assessment bill was defeated. Madison used the political momentum of the assessment contest to secure passage in 1786 of the Virginia Statute for Religious Freedom, originally drafted by Thomas Jefferson, who in 1786 was serving as a diplomat in France. Madison wrote to Jefferson that passage of the bill has “extinguished forever the ambitious hope of making laws for the human mind.”

Or so they thought. Since the modern conservative movement on the U.S. Supreme Court, beginning with Chief Justice William Rehnquist, there has been a steady erosion of the wall of separation of church and state with a revisionist reinterpretation of the First Amendment far different from the “original intent” of James Madison.

Amy Howe at SCOTUSblog reports, Opinion analysis:Court rules that religious schools cannot be excluded from state funding for private schools:

In 2015, the Montana legislature created a scholarship program that provided a dollar-for-dollar tax credit for donations to private scholarship organizations. Those organizations used the money to fund scholarships for children to attend private schools – which, in Montana, are primarily religious schools. In 2018, the Montana Supreme Court struck down the tax-credit program, holding that it violated the state constitution’s ban on aid for churches and religious schools.

Note: This is commonly referred to as the Blaine Amendment, a failed amendment to the U.S. Constitution that would have prohibited direct government aid to educational institutions that have a religious affiliation. Thirty-eight of the fifty states later adopted provisions of Blaine in their state constitutions. See, Arizona Constitution, Article 2, Section 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”

Today the U.S. Supreme Court threw out the Montana Supreme Court’s decision. By a vote of 5-4, the justices ruled in Espinoza v. Montana Department of Revenue that the state court’s interpretation of the Montana constitution violated the U.S. Constitution, which protects the free exercise of religion. States are not required to subsidize private education, Chief Justice John Roberts explained in his opinion for the majority. But if they opt to do so, they cannot exclude religious schools from receiving those funds simply because they are religious.

Today Chief Justce John Roberts tore down what remains of the wall of separation of church and state for religious schools, building upon his prior decisions.

Supreme Court reporter Mark Joseph Stern explains, The Supreme Court Just Forced Maine to Fund Religious Education. It Won’t Stop There.

The Supreme Court’s conservative supermajority effectively declared on Tuesday that the separation of church and state—a principle enshrined in the Constitution—is, itself, unconstitutional. Its 6–3 decision in Carson v. Makin requires Maine to give public money to private religious schools, steamrolling decades of precedent in a race to compel state funding of religion. Carson is radical enough on its own, but the implications of the ruling are even more frightening: As Justice Stephen Breyer noted in dissent, it has the potential to dismantle secular public education in the United States.

Carson challenges Maine’s effort to provide quality civic education to every child in the state. The government created a tuition assistance program to help families who live in remote, sparsely populated regions without any public schools. Under the program, parents can send their kids to certain private schools, and the state covers the cost of tuition. To qualify, these schools must give students a secular education. They may be affiliated with, or even run by, a religious organization. But their actual curricula must align with secular state standards.

Two families challenged this limitation, arguing that it violated the First Amendment’s free exercise clause. Just two decades ago, this claim would’ve been laughed out of court: SCOTUS only permitted states to subsidize religious schools in 2002; at the time, it would’ve been absurd to say that states have a constitutional obligation to subsidize them. Beginning in 2017, the court began to assert that states may not exclude religious schools from public benefits that are available to their secular counterparts. And in 2020, the conservative justices forced states to subsidize religious schools once they began subsidizing secular private education.

Tuesday’s decision in Carson takes this radical theory to a new extreme, ordering Maine to extend public education funds to religious indoctrination.

The upshot of Chief Justice John Roberts’ opinion for the court is that states have no compelling interest in providing public, secular education to children. Indeed, Roberts suggests that the very concept of secular schooling is a smokescreen for “discrimination against religion”—a pretext for unconstitutional animus toward pious Americans. His opinion reaches far beyond Maine. About 37 states have amendments to their constitutions that bar government funding of religious institutions, including schools. Carson essentially invalidates those laws while undermining the broader constitutional basis for the nation’s public school system.

Roberts reached this astonishing result by overruling broad swaths of precedent respecting states’ authority to separate church and state more strictly than the U.S. Constitution requires. The court previously upheld states’ interest in avoiding the “establishment” of religion by refusing to underwrite the indoctrination of students into a particular faith. No longer. Roberts condemned Maine’s efforts to guard against religious establishment as nothing more than “discrimination against religion”—an effort to “exclude some members of the community” from public benefits “because of their religious exercise.” He also overruled a line of cases that let the government withhold funding on the basis of religious use (like indoctrination) but not religious status (like affiliation with a church). That distinction, he wrote, “lacks a meaningful application not only in theory, but in practice as well,” tossing it in the precedential dumpster.

The chief justice maintained that Carson’s rule only kicks in once a state starts sending taxpayer dollars to private schools through vouchers, tax credits, or scholarships. So, in theory, a state can send all its money to public schools and avoid constitutional concerns. Even if that’s true, the consequences are sweeping: Most states offer at least one of these programs, so Carson gives millions of families an opportunity to bail out of the public school system and demand public money for parochial education.

But can this distinction hold? Roberts’ bright line dims under scrutiny: Maine, after all, wanted private schools to replace public education for some students, not supplement it. And yet the court found no good reason for the state to insist that these substitute schools adhere to secular standards. Indeed, the chief justice’s rhetoric depicts education not as a state-sponsored benefit for all, but rather as a personal matter best left up to parents. There is, he claimed, no “historic and substantial state interest” in preserving secular education. If that’s true, how can any state refuse to fund religious schooling?

Breyer raised these questions in dissent. Does Carson, he asked, “mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” In other words, must every state begin cutting checks to parents who want to give their kids a Christian education? Does Carson mean “school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?” Can states even mandate secular curricula at charter schools any more? Who knows? In the end, the only limit on Carson is whatever five justices want it to be.

It’s worth pausing, as both Breyer and Justice Sonia Sotomayor did in dissent, to reflect on the victims of Tuesday’s decision. The two Maine schools that may now receive public funding are openly discriminatory, expelling students and teachers who do not adhere to evangelical Christianity. LGBTQ students, as well as straight children of same-sex couples, are not welcome, nor are LGBTQ teachers. Even custodians must be born-again Christians. One school teaches students to “refute the teachings of the Islamic religion” and believe that men serve as the head of the household. Another requires students to sign a “covenant” promising to glorify Jesus Christ and attend weekly religious services.

“Legislators,” Breyer wrote, “did not want Maine taxpayers to pay for these religiously based practices,” as doing so might violate their own faith or conscience. The majority tells these Mainers their own views don’t matter, because the First Amendment forces them to foot the bill for other people’s religious indoctrination. Doing so creates a “serious risk of religion-based social divisions,” Breyer explained, exacerbating the “religious strife” that the religion clauses “were designed to prevent.” Sotomayor put the point more sharply: “While purporting to protect against discrimination of one kind,” she wrote, “the court requires Maine to fund what many of its citizens believe to be discrimination of other kinds.”

The conservative majority, however, has perfected the art of ignoring genuine discrimination while perceiving anti-Christian persecution where none exists. In the process, they are elevating the rights of one sect over all others. Carson will not benefit any religious minorities; there are not enough Muslims or Jews to create a school in the far-flung corners of Maine. Every time Roberts uses the word “religion,” he might as well be saying “Christian.” The right will praise Carson as a triumph of religious liberty. But if you practice a religion that does not stand to gain from the ruling, your liberty does not matter to this Supreme Court.

As I said at the top, Founding Father James Madison must be turning over in his grave today.