Saturday, June 25, 2022

At SCOTUS, Onward Christian Soldiers!

             The Supreme Court delivered a major victory to religious schools last week [June 21] by forcing the state of Maine to provide tuition assistance to families who want to send their children to private schools that practice religious indoctrination through an explicitly religious curriculum.

            The 6-3 decision in Carson v. Makin invalidated in the name of free exercise of religion a provision in Maine’s state constitution that prohibited government funds to sectarian schools. The ruling, written by ostensible originalists without a single word about the original meaning of the Constitution’s Religion Clauses, flies in the face of the Framers’ view that the Establishment Clause prohibits use of public funds to support religious institutions.

            Indeed, as a member of Virginia’s post-independence state legislature, James Madison authored the famous “Memorial and Remonstrance Against Religious Assessments” in 1785 in opposition to legislation to tax Virginians to provide subsidies for established churches. Madison argued that history showed that governmental establishment of religion actually corrupted the established churches and intruded on the religious liberties of nonbelievers or adherents to other sects.

            Writing for six Republican-appointed justices in last week’s decision, Chief Justice John G. Roberts Jr. concluded that Maine’s insistence on the original meaning of the Establishment Clause amounted to an unconstitutional violation of the second of the two Religion Clauses.

            In a commentary for the American Constitution Society blog, two religion law experts from George Washington Law School, Chip Lupu and Robert Tuttle, aptly captured the meaning of the decision under this headline: “The Dwindling Twilight of the Establishment Clause.” The  Court’s decision, they wrote, “has potentially opened a new world of mandatory government funding of specifically religious activity.”

            If the government must fund specifically religious activities when it funds analogous secular activity, what is left of the Establishment Clause in the funding context?” they asked rhetorically. The answer, it would seem, is “not much.”

            Ruling on the issue of government funding for religious schools seventy-five years ago, the Supreme Court set out a stricter understanding of the Establishment Clause in a unanimous decision in Everson v. Board of Education (1947). The decision allowed government funding for bus transportation for students attending religious schools, but nothing else.

            The ‘establishment of religion’ clause of the First Amendment means at least this,” Justice Hugo Black wrote for the Court. “[N]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

            In contrast to the 1947 Court, the current Court is packed with true believer justices, carefully vetted by the Federalist Society as champions of free exercise over establishment clause concerns.  As presidential candidate and as president, Donald Trump promised to repay pro-Trump evangelicals for forgiving him his trespasses by appointing judges and justices who would protect religious liberty to the utmost.

            Trump’s three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – provided the needed votes to fortify previous Roberts Court decisions assuring government assistance to religious schools. Tellingly, two of the Trump justices are observant Catholics and themselves products of Catholic education, where teachers quite possibly told them falsely that the United States was founded as a Christian nation.

            The Maine case arose against in an unusual context. Outside urban areas, the sparsely populated Pine Tree State includes “local school administrative units” with so few students that the district cannot support a public secondary school. Maine’s elected representatives crafted a solution dating from 1981 to provide tuition assistance to any students attending private schools in areas with no public high school, with tuition assistance was available to students attending secular schools, but not religious schools.

            The Maine lawmakers’ decision, Roberts concluded, “promotes stricter separation of church and state than the Constitution requires.” “A state’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

            In his coverage of the decision, the New York Times’ Supreme Court correspondent Adam Liptak aptly observed that expanding religious rights “has been a signature project of the Court led by Chief Justice Roberts.” Liptak listed, without naming them, the series of decisions in that project, including a decision to force the state of Montana to include tuition assistance for students attending religious schools and a decision to force the state of Missouri to provide church-affiliated preschools with funds to upgrade playground surfaces.

            The other decisions include ruling to allow Catholic schools to violate federal anti-discrimination laws in hiring or firing teachers, including those who teach secular subjects. The Court also allowed a huge Christian cross honoring soldiers who died in World War I to remain on public property at a major intersection in suburban Maryland. In another of the cases, the Court allowed a Philadelphia social service agency to violate a local anti-discrimination ordinance by refusing to consider same-sex couples as applicants to take in foster children.

            Dissenting in the Maine case, Justice Sonia Sotomayor criticized the latest decision and its precursors. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor wrote. “This Court should not have started down this path five years ago,” she added, referring to her dissent in the Missouri case, which she said “revolutionized Free Exercise doctrine.”

            The new decision, Sotomayor could have added, equally “revolutionized” Establishment Clause doctrine. Harking back to Madison, it is a Faustian bargain for religious schools to suck at the government’s fiscal teat by inviting entanglement and by taxing nonbelievers at the expense of their religious liberties.

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