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Wed Jun 22, 2022, 02:10 PM

Comment: Supreme Court erodes wall between church, state [View all]

By Noah Feldman / Bloomberg Opinion

In an extremely important church-and-state decision, the Supreme Court has held that if the state of Maine decides to pay for a childís private education in lieu of a public one, it must allow its tuition money to be used at religious schools. The 6-3 decision, Carson v. Makin, profoundly undermines existing First Amendment law.


The framersí conception of the two religion clauses of the First Amendment had two parts that fit together. The establishment clause meant the government couldnít make you perform a religious act or spend taxpayer dollars on religion. The free exercise clause said the government couldnít stop you from performing a religious act, understood as prayer or preaching or teaching or belief.

For most of U.S. history, the Supreme Court enforced these clauses by, among other things, saying that the government could not fund the teaching of religion in religious schools. That principle was substantially undermined 20 years ago when the court held that states could fund religious education ó including Catholic schools ó indirectly via voucher programs that could be used at secular or religious private schools.

But until today, the Supreme Court didnít go the next step, which has been sought by advocates of religious education ever since. It had never held that if the state pays for private secular education, it must ó not may ó also pay for religious education. The key case holding the line was a 2004 decision, Locke v. Davey. In that ruling, the court said that the state of Washington did not have to allow a student to use a state scholarship to pay for religious training in a religious institution.


The Supreme Court Just Fused Church and State ó and It Has Even Uglier Plans Ahead

Itís that time of year again, when six conservative lawyers impose a retrograde view of the world on unsuspecting people everywhere. Yup, itís the end of the year for the Supreme Court. And this year, the rightwing hijacking of the court is going to be more apparent than ever.

Tuesdayís decision in Carson v. Makin really sets the tone for the next two weeks. In this case, two Christian private schools challenged a program in Maine that provided tuition assistance to families in rural school districts that donít have their own public school. Parents could use the tuition assistance to send their children to private school, but Maine prohibited parents from using the money to attend a religious school. The rationale behind that carve-out was that the First Amendmentís prohibition on establishing a religion, so the state banned its tax dollars from going to religion.

Sounds straightforward and reasonable enough, but not to this Supreme Court. This court, dominated by conservative Christians, has almost never faced a claim brought by a religious entity that it didnít agree with. Looking for exceptions from birth control mandates, anti-discrimination law, and COVID protections? If youíre religious, this court has your back! How about forcing state and local governments to give you money, assistance, and support? Again, if youíre religious, youíre in luck once again!

So the ruling wasnít much of a surprise, but itís still a shock to the American system of government. The schools that asked for public tax dollar support from Maine have discriminatory admissions and hiring policies against gay and trans people as well as those who are non-Christian. No matter to this court. If Maine is funding allows tuition assistance to go to any private school, it has to allow the funding to go to religious schools as well, even ones with discriminatory policies. Chief Justice Roberts, writing for himself and the other five conservatives on the Court (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett), explained that ďa state need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.Ē


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