News and Notes: The War of Words
By George Francis Kane
What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens with- out being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.
With those words Justice Sonia Sotomayor concluded her dissent to the decision of Carson v. Makin that was released in June. The case concerned a school voucher program that is unique to Maine. Much of Maine is rural, and its population so sparse that public high schools are not economically feasible in some districts. Maine law permits these school districts to provide vouchers to students to attend private schools. Although the voucher program provides for the parents to select the school, the state must approve it. A school does not qualify to receive a voucher if religious advocacy pervades the curriculum. At issue in this case is not the mere religious status of the schools, being owned and operated by a church, but rather the religious content of their curricula.
The plaintiffs, however, want to use state money to send their children to Christian schools that provide religious instruction. Bangor Christian School identifies the bible as its “final authority in all matters.” Since the schools provide religious instruction, Maine’s nonsectarian requirement appears to be insulated against the finding in Espinoza v. Montana Department of Revenue that the state was demonstrating bias against religion by excluding schools because of their religious status rather than what they do with the state funding they receive. However, Justice Roberts wrote in his decision that “the prohibition on status-based discrimination under the Free Exercise Clause is not a permission to engage in use-based discrimination.”
As in Espinoza, the decision completely ignored the right that has always been considered central to the Establishment Clause, to be free of compulsion by the state’s power of taxation to pay for the support of a religion with which one disagrees. Based on the Free Exercise Clause, it permits no government restrictions, but it has no concern at all for the Establishment Clause.
The court might have dismissed the case because the two religious schools discriminate against homosexuals and non-Christians. They claim a religious exemption to Maine’s law against discrimination in hiring, and they would not agree to give up this exemption as a condition of receiving the state tuition vouchers. The court ruled, however, that government may not condition an otherwise generally available benefit on a restriction of the freedom of religious exercise. In this case, however, that prohibition entangles Maine in subsidizing bigotry that it officially forbids. It seems that there is nothing that this court recognizes as an Establishment Clause violation.
Supreme Court decisions reliably supported a robust Establishment Clause twenty years ago. At that time, Souter, Breyer, Ginsburg, and Stevens were vigorous supporters of the separation of Church and State, frequently joined by the swing vote, O’Connor. Since O’Connor’s retirement, the court has chipped away at the wall of separation incrementally, bit-by-bit. Now, since Ruth Bader Ginsburg was replaced by Amy Comey Barrett, the drip of government support to religion leaking through the wall has become a torrent. We can guess steps that the Supreme Court will take in future cases. Once the state is paying vouchers to religious schools in districts where there is no public school, parents of students in other school districts will complain that they are excluded from the voucher program. Soon, the state will be required to pay the tuition of all students in religious schools. This will break the bank for public schools.
