Tag: Wall of Separation

Flast v. Cohen (1968)

~ Blue Cereal

NOTE: This is an excerpt from “Have To” History: A Wall of Education.

Three Big Things:

1. To bring a case before any court, one must first establish “standing.” Typically this means proving specific individual harm resulting from the actions of another and demonstrating that the offending party has the power to change whatever’s causing the harm.

2. Being a taxpayer is rarely sufficient to prove standing in the courts to complain about how one’s tax dollars are being used, even if that use is clearly unconstitutional.

3. According to Flast v. Cohen, when it comes to violations of the Establishment Clause, however, unwanted exposure to the offense can be sufficient to show standing in the eyes of the law… because establishment isn’t like anything else.

Standing Before the Court

During the same session which determined in Board of Education v. Allen that states could provide textbooks to public and private schools alike without violating the Establishment Clause, even if many of those private school students were attending religious institutions, the Court announced in Flast v. Cohen that taxpayers had the right to oppose their tax dollars being used to do just that.  

This was new. Sort of. But maybe not. It was also sort of confusing.

The case began when Florence Flast and other New York taxpayers objected to federal legislation which provided funds for the purchase of secular textbooks for use in religious private schools. They argued that using their tax dollars in this way violated the Establishment Clause. The government responded with a derisive chuckle and a gaze full of pity for these poor fools who clearly didn’t understand how these things worked.

See, way back in Commonwealth of Massachusetts v. Mellon (1923), the Court had specifically addressed the question of whether or not taxpayers had standing to sue based on being taxpayers. “No,” they said. “Absolutely not. Don’t be stupid.” If the government takes your money against your will and then uses it for something you don’t like – especially something you’re pretty sure they’re not supposed to be doing anyway – take it up with your elected representatives. That’s totally not the job of the judicial branch – “separation of powers” and all that.  

Besides, both the gathering of taxes and the distribution of state funds were simply too general and, you know… big. It was impossible to connect specific state expenses to individual taxpayer contributions in more than a theoretical way – like identifying which raindrops were responsible for a flood downriver weeks later. Besides, every act of legislation, particularly when it involves spending, potentially impacts the economy. Maybe the very act you’re opposing is actually lowering your taxes somehow – did you think of that, Little Miss Lawsuit-Pants?

Honey, Have You Seen My Precedent?

This reasoning remained largely unchallenged for several decades, at least directly. In a few cases involving church-state issues in relation to public education, however, it’s more like it was pragmatically ignored.

Everson v. Board (1947) was initiated by a taxpayer who didn’t like state funds being used to pay bus fare to religious schools. The Court ruled against him, but not for lack of standing. Neither the majority opinion nor Justice Robert Jackson’s dissent questioned the plaintiff’s right to bring the complaint; the case was determined entirely on grander constitutional grounds.

The plaintiffs in McCollum v. Board (1948) were parents of children in the district, but also filed as taxpayers who didn’t want their money used to support “released time” programs for religious instruction during the school day. Justice Robert Jackson’s concurrence addressed the issue of taxpayer concerns, finding that the cost of the program was negligible (unlike the bus fare issue in Everson). What he did not suggest was that taxpayer status itself was insufficient to bring the suit to begin with. The majority opinion itself focused on compulsory education laws and the role of parents as advocates for their children. Taxpayer status was simply not a factor.    

A few years later in Zorach v. Clauson (1952), parents who opposed “released time” programs during the school day (but not actually on school grounds) claimed standing both as parents and taxpayers. Nothing in the record indicates anyone challenged this, and no one even mentioned Mellon.

Just to keep everyone on their toes, however, that same year, in Doremus v. Board of Education (1952), the Court shot down plaintiffs opposed to a New Jersey law mandating that Bible verses from the Old Testament be read to students at the beginning of each school day. One had filed suit as a parent, but the child in question didn’t seem sufficiently traumatized to establish “injury,” and by the time the case reached the Supreme Court, they’d graduated anyway – rendering that parent’s complaint moot in the eyes of the Court. The other had filed as a taxpayer, which the Court declared insufficient to establish standing.

Unlike in Everson, there was no specific legislative outlay of funds in Doremus for a taxpayer to challenge. Daily Bible-reading didn’t actually cost anything extra; school budgets stayed pretty much the same whether they pushed Old Testament theology on students or not. With no qualified plaintiff, the Court saw no need to rule on grander constitutional questions. (Dissenters argued that schools using their limited time and resources to promote faith instead of, say… math or reading was in fact of interest to taxpayers, but the majority was not convinced. The Supremes have rarely proven sympathetic towards Rune Goldberg arguments – it looks for immediate cause and effect whenever possible, and “coulda been studying the demise of the Whigs instead” simply wasn’t compelling.)

It Followed Her To School One Day (Which Was Against The Rules)

In the early 1960s, the Court struck down several varieties of state-sponsored prayer and Bible-reading in public schools. In Engel v. Vitale (1962), Abington v. Schempp (1963), and Chamberlin v. Dade County Board of Public Instruction (1964), the plaintiffs were each time parents of school-aged children who objected to this particular mixture of church and state. Their status as taxpayers was periodically referenced in records, but never as the crux of their standing before the courts.

What did emerge, however, in the Supreme Court’s Engel decision (and quoted in Abington the following year) was a critical distinction in how the twin religion clauses of the First Amendment should be approached:

Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce non-observing individuals or not…

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion…

The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate.

The twin religion clauses are often portrayed as pulling against one another, but Justice Black insisted, rather, that they in fact operate on two entirely different levels. “Free Exercise” constrains what the government can do that might interfere with sincerely held beliefs. It’s intended to allow personal pursuit of the divine as long as the general good is not overly compromised. It’s pragmatic and statutory. “Establishment,” on the other hand, is grander and more idealistic. It proclaims a principled division between the secular and the divine – between man’s laws and the whispers of the spirit. In so doing, it protects both.

Government sacrifices credibility the moment it dabbles in religious messaging, thus elevating some of its citizens over others and eroding the social contract. And while religion can benefit immensely from government sponsorship, true faith rarely survives it.

Or so the Court has repeatedly suggested, at least until recently.

What does this have to do with taxpayer standing in the courts? Everything. Establishment is the very first protection of the entire Bill of Rights, as well it should be. At the same time, it’s not quite like the other protections. More than free speech, a free press, freedom of assembly, or the right to petition for a new dress – more, even, than the free exercise of religion, the Establishment Clause seeks a grander right than those guaranteed to one citizen at a time. It claims for American citizens the right to render unto Caesar only the things that are Caesar’s and render unto God the things that are truly God’s – whatever those might be – without input or influence from secular authority.

Governmental violations of such a thing, then, don’t always work the same as other forms of state intrusion or overreach. They may even arrive as angels of light – generalized benefits disproportionately assisting religious institutions, rituals meant to acknowledge the dominance of some faiths over others, or public displays reinforcing the majority culture at the expense of those on the outside looking in. What makes Flast such an odd little outlier of a case is the Court’s stretch to recognize and accommodate this difference in objective, legal terms.

Flast v. Cohen (1968)

In Flast, a group of taxpayers objected to the use of public funds to provide secular textbooks for sectarian schools. The government argued that based on established precedent, they had no right to sue. The case, then, became about standing rather than the merits of their complaint. If they weren’t qualified to bring the suit to begin with, it didn’t really matter how right or wrong they were on substance.

The Supreme Court determined that there was nothing in the Constitution barring federal taxpayers from challenging taxing and spending they believed to be unconstitutional, so long as they could persuasively demonstrate a “necessary stake” in the results. Plaintiffs had to demonstrate that a legislature had exceeded its constitutional authority for taxing and spending AND identify a specific constitutional right being violated in order to show actual “harm” being done to them in some way.

Here’s how Chief Justice Earl Warren put it in the Court’s majority opinion (internal quotes and citations have been omitted for clarity):

The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court, and not on the issues he wishes to have adjudicated. The gist of the question of standing is whether the party seeking relief has alleged such a personal stake in the outcome of the controversy…

{W}e find no absolute bar in Article III to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs…

First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Article. I, Section 8, of the Constitution… Secondly, the taxpayer must… show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power, and not simply that the enactment is generally beyond the powers delegated to Congress…

While we express no view at all on the merits of appellants’ claims in this case, their complaint contains sufficient allegations under the criteria we have outlined to give them standing to invoke a federal court’s jurisdiction for an adjudication on the merits.

In practice, this turned out to mean that only when the Establishment Clause was involved would being a taxpayer secure standing in the eyes of the law. The decision in Flast wasn’t quite that specific, but in the half-century since, that’s how it’s worked out.

The Lemon Aid

A few short years later, in Lemon v. Kurtzman (1971), the Court ruled against state support of religious education via materials and – in some cases – salary support, declaring it a constitutional no-no. The plaintiffs were taxpayers in the relevant districts and several also had children in the local schools, so standing wasn’t an issue. The aid was a bit more involved, making it different from mere “textbooks” in the eyes of the Court. From Lemon emerged the “Lemon Test,” an informal tool often utilized by the Court to weigh the church-state constitutionality of government actions. The Lemon Test has three parts:

First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion” …

Those first two would come up more often than the third, and later evolve into what’s commonly referred to as the “endorsement test.” While not official (and recently all but officially overturned), the Lemon Test acknowledges the importance of how government actions are perceived as well as their intent. In other words, establishment is not just about the letter of a law – it’s about motivations and practical results as well.

“Unwanted Exposure”

Sometimes, of course, Establishment Clause violations come without obvious taxing and spending involved, meaning they don’t trigger the standing requirements outlined in Flast. In these cases, the Court will often allow plaintiff standing based on what Professor Carl H. Esbeck of the University of Missouri School of Law calls “unwanted exposure.” In practice, this means that even if someone’s tax dollars aren’t directly paying for something, that doesn’t mean it’s OK for the government to push a message approving some faiths over others, or faith in general over no faith at all. Violations of the Establishment Clause don’t have to be expensive to be violations.

In Stone v. Graham (1980), the Court invalidated a Kentucky state law which required public schools to post the Ten Commandments in classrooms. The actual copies of the Decalogue were donated by outside organizations, so there was no legislative spending involved. As with the mandatory prayer or Bible-reading in Engel or Abington, however, students were still exposed to a daily religious message brought to them on behalf of their government and with subtle but unpleasant consequences for those who chose not to play along. The plaintiffs in Stone, several parents and one teacher, had standing based on this “unwanted exposure” not covered in Flast.

In Valley Forge Christian College v. Americans United for Separation of Church and State, Inc. (1982), the Court refused standing to taxpayers who complained about the transfer of government property to a Christian college. The decision had been made by the Executive Branch; there was no legislation instituting new taxes or creating new spending involved. The Court based its reasoning on the two-part test established in Flast.

Marsh v. Chambers (1983) originated with a Nebraska state legislator who didn’t like paying local clergy to offer a prayer at the beginning of each day. The government didn’t make standing a major issue, but the Supreme Court’s majority opinion acknowledged in a footnote that “we agree that Chambers, as a member of the legislature and as a taxpayer whose taxes are used to fund the chaplaincy, has standing to assert this claim.” In short, he had standing based on both taxpayer status and “unwanted exposure.” (Chambers lost his case on its merits, however, based largely on the idea that adults aren’t children forced to do what others tell them to all day. “Legislators, federal and state, are mature adults who may presumably absent themselves from such public and ceremonial exercises without incurring any penalty, direct or indirect.”)

Lynch v. Donnelly (1984) – The Message Conveyed

Lynch v. Donnelly challenged the constitutionality of a Christmas display put up by the city of Pawtucket, Rhode Island, each year which prominently featured a full Nativity Scene (Mary, Joseph, a glowing Baby Jesus, etc.) The Court did not address standing as such, but the plaintiffs were local residents who would have easily qualified under the “unwanted exposure” principle inherent in the Court’s previous decisions. In terms of its impact on cases related to education, the real significance of Lynch was captured in the concurring opinion of Justice Sandra Day O’Connor:

The Establishment Clause prohibits government from making adherence to a religion relevant in any way to a person’s standing in the political community. Government can run afoul of that prohibition in two principal ways. One is excessive entanglement with religious institutions, which may interfere with the independence of the institutions, give the institutions access to government or governmental powers not fully shared by non-adherents of the religion, and foster the creation of political constituencies defined along religious lines…

The second and more direct infringement is government endorsement or disapproval of religion. Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message…

The meaning of a statement to its audience depends both on the intention of the speaker and on the “objective” meaning of the statement in the community. Some listeners need not rely solely on the words themselves in discerning the speaker’s intent: they can judge the intent by, for example, examining the context of the statement or asking questions of the speaker. Other listeners do not have or will not seek access to such evidence of intent. They will rely instead on the words themselves; for them, the message actually conveyed may be something not actually intended. If the audience is large, as it always is when government “speaks” by word or deed, some portion of the audience will inevitably receive a message determined by the “objective” content of the statement, and some portion will inevitably receive the intended message. Examination of both the subjective and the objective components of the message communicated by a government action is therefore necessary to determine whether the action carries a forbidden meaning.

Although Justice O’Connor doesn’t explicitly connect the two, this is why “unwanted exposure” was (and is) a valid foundation for standing. It doesn’t mean the individual will win every time they complain (the Court said Pawtucket could keep its Nativity Scene, for example), but it does recognize that violations of the Establishment Clause aren’t always full of obvious arm-twisting or overt threats to “non-adherents.” There’s more to many government messages than the literal, face-value words or actions. Just like your kids, teachers, co-workers, boss, or spouse, sometimes you know quite well what’s being communicated even if the other person doesn’t come right out and say it.

Also coming before the Court in 1984 was the case of Allen v. Wright, in which some very messy issues regarding racial segregation and the ugly history of private schooling across the south. In Allen, a conglomeration of Black parents argued that tax-exempt status for segregated private schools and tax deductions for those who supported them were unconstitutional based on the Court’s ruling in Brown v. Board of Education (1954) a generation before and numerous acts of the federal government since. They were rejected for lack of standing.

Turns out the issue still wasn’t as clear cut as Flast or subsequent decisions had presumably tried to make it.

 

Stomping Decisis / A Matter of Degrees (Introduction)

~ Blue Cereal

NOTE: I’m toying with the idea of a follow-up volume to both “Have To” History: Landmark Supreme Court Cases and “Have To” History: A Wall of Separation. The working title is Stomping Decisis (I’ll probably change it if I can think of something better) and the central subject would be major Supreme Court decisions of the Roberts Court with focus on the past few years and the nature of the Court’s lurch to the far right. We’ll see if it actually happens. 

What follows is a rough draft of one possible introduction. I’ve begun playing with the intro this early in the process because I’m trying to figure out the exact approach and “shape” of the book if I actually end up writing it. I’m not even sure at this point if this intro even makes sense or fits where the book is likely to go, but one sure way to get honest feedback is to put it out there and see what happens. Plus, I haven’t posted anything in over a week, and it seemed time. 

As always, your comments and questions are welcome below or via email. You are appreciated. 

MAGA JusticeStomping Decisis (Introduction)

In the spring and summer of 2022, the United States Supreme Court began announcing its findings in the dozens of cases it chose to hear that session. As its decisions began to circulate, there was much rejoicing on the far right and substantial shock from progressives and moderates at the radical direction the Court seemed to be taking. Apparently, social media informed us, states now have to pay for religious education (including overt homophobia and science denial) and public school teachers can pray in front of their students. States are no longer allowed to regulate guns and the C.I.A. doesn’t have to tell anyone the locations of its favorite torture chambers. The Environmental Protection Agency is prohibited from protecting the environment quite so much. Oh, and yes – Roe v. Wade has been overturned. Everyone who gets pregnant for any reason, with their cooperation or without, must now carry the child through delivery whether it’s alive or dead and whether they’re likely to survive the experience or not. 

What the hell happened?

That’s what we’re going to look at in the following pages – once we get through a few spoilers by way of context. 

First, while the Court’s decisions absolutely indicate a lurch to the far right, the descriptions above aren’t entirely accurate or fair – at least not for every case. The emotional reactions many of us experienced (and may still be experiencing) are perfectly understandable and perhaps even justified, but once our collective blood pressure has stabilized a bit, it’s worth looking at precisely what the Court did and didn’t say in its recent decisions. It’s not always as insane as it sounds at first. (Well, except some of the parts written by Justice Thomas.)

Second, shifts like these rarely come completely out of nowhere. It’s easy to miss the signs along the way because most of us have busy lives and other things to pay attention to. When we hear on the news that the Court “saved” the Affordable Care Act or neglected to overturn Roe, we file it all away under “no change” even if that’s not the full story. We rarely dig deeper to see what, in fact, they did say. Sometimes the details just aren’t quite right yet. Other times, the Court is still too ideologically balanced to allow destabilizing lurches to the left or right without better reasons. 

Spoiler alert: that last one is not currently an issue. The far right is in complete control of this Court and will be for the foreseeable future. 

Finally, many of the issues addressed in these cases are simplified and summarized as a practical matter during most media coverage. The Court’s reasoning can get a bit verbose or technical. Other times, there are legal technicalities impacting the specific decision but not directly related to the larger issues involved. And, to be fair, the average American isn’t well-known for their firm grasp on the U.S. Constitution and its amendments or landmark jurisprudence over the past century.

If that’s you, don’t feel too bad – it’s possible you’ve simply had better things to do than slog through this stuff repeatedly during each slew of announcements. 

A Matter Of Degrees

Activists and ideologues have a vested interest in keeping their audiences as stirred up as possible by unfolding events. (That doesn’t mean they’re always wrong – merely that they’re not always the most rational, balanced folks in the conversation.) One of the most foundational means of maintaining this is to repeatedly frame everything in terms of dichotomies – this belief vs. that one, this value vs. the opposite value, and perhaps most importantly, us vs. them.  

In reality, however, there aren’t that many issues over which a clear majority of Americans absolutely, dogmatically disagree in all possible situations. Most of the time, controversies come down to matters of degrees. We’re often working with the same basic sliding scale; we just don’t like where the other guy is trying to mark what’s acceptable and what’s not in ways which then impact all of us.   

Take, for example, the issue of religion in public schools. There are two clauses in the First Amendment which involve religion – the very first two, in fact:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”

That’s it. Sixteen words. These are where all the kerfuffles begin. 

The first bit is known as the Establishment Clause. It’s widely understood to mean that government (including states and local governments, thanks to the Fourteenth Amendment) should avoid doing anything that promotes religion in general, or one type of religion or belief system over another. The second part is the Free Exercise Clause. It says that government shouldn’t do anything to hinder or punish religious beliefs or practices. In short, government at all levels should simply stay out of people’s religions. 

It certainly sounds straightforward enough. How hard could this be? 

Now, imagine that there’s a fire in a little Methodist church down the street from wherever you are now. You’ve never been there, but they seem nice enough. Should the fire department rush to the scene and try to save the church, or merely stand by ready to protect nearby homes and businesses if the flame starts to spread?

Most people would insist that the fire department should respond and treat the situation the same way they would any other fire. I could argue, however, that this is a violation of the Establishment Clause because the city is using public resources to promote religion. The faster those firefighters respond and the harder they work, the less damage that fire will do and the more resources that little church will have left over to proselytize and organize potlucks and run Vacation Bible School over the summer.

The same is true of police protection. Road repairs. Ambulance service. You get the idea. Our tax dollars help religious people and organizations all the time. If state or local government refused to do for that little church what it does for every everyone else in town just, it would in effect be punishing church members for their faith. If they wish to participate in the traditions and activities of their religion, they must give up benefits they could have if they weren’t being all “religious.”

Sliding The Scales

Now let’s imagine that we’re not talking about fire or police protection, but public transportation. The city has invested in some stylin’ new shuttles and wants to make it easy for people to get around, no matter what their income levels. There’s a small cost for a ticket to the airport, the mall, downtown, or the theater district, but tickets are free for passengers going to school, a public library, the local health department, or any of the churches along the route – including that little Methodist chapel we’ve been discussing.

How about now? Is this the same as fire protection and road repairs, or is this a special benefit for religion? It’s not even for all religions – just churches which happen to be near established routes! We’re still pretty close to the “put out the fire” end of the scale, but we’re definitely moving a bit. 

Maybe the county has been given funding to improve the lives of children in the area. As part of this, they’re offering to pay for playground upgrades (including that bouncy foam stuff to replace dirt or sand) for any qualifying site. Several schools secure the grant, as does the privately managed area outside the Children’s Science Museum across town. Should our church down the street be allowed to apply as well on the same terms as everyone else? On the one hand, it’s just a playground. On the other, they make no secret of their desire to bring kids into their faith. They use their playground extensively on Sundays and during Vacation Bible School, even though it’s accessible to the neighborhood year-round. 

We’re definitely further along that scale now. Are you still comfortable with letting them partake, or have we crossed a line somewhere along the way from “free exercise” to “establishment”?

As the church grows, perhaps they add a homeless shelter and food pantry comparable to those in other parts of town which receive government grants to support their efforts and ask for similar assistance. Should the state allot funds to this location as well? Would it be OK if the state only provided funds on the condition they be used exclusively for food and shelter and not in direct support of proselytizing or other religious teaching? Does such a distinction even matter when every dollar the church doesn’t have to spend on bread and peanut butter can go to providing Bibles?

Where are we on that scale now?

Homelessness often involves mental illness or other extenuating circumstances. Now the church wants to incorporate counseling and rehab services. Their personnel are trained professionals, but they’re also faithful Christians who share elements of their faith during discussions with clients. If the state supports these efforts to the same extent they do secular services, they’re definitely supporting religion now – right? So what if they only support the “clinical” parts of the counseling and not the “religious” parts. Like, every time someone mentions Jesus, they hold down a button that stops the timer for a bit or something. What do you think now?

Perhaps there’s a lawyer or two in the congregation and the church gradually becomes a primary provider of adoption services in the area as part of their mission to serve the community around them. They’re not comfortable placing children with same-sex couples or divorced women, however. This service isn’t even receiving direct government funding, although it does have to contend with the complex web of laws regulating adoption and they’ve effectively become the only real option in this half of the state. Should they be allowed to pick and choose who they’ll serve, like restaurants in the 1950s?

While we’re at it, we might as well have our little Methodist church start its own private school and ask for the same per-student funding as the public school down the street. We’re not quite to the opposite end of that sliding scale from where we started, but we’re heading that way at a good clip. 

Let’s cap the far end with your legislature declaring the United Methodist Church the official religion of your state and instituting a new tax enabling them to pay for Methodist Preachers and more Methodist buildings. They will not, however, imprison or execute you for believing differently – as long as you pay your taxes. Unless you’re Clarence Thomas, you probably wouldn’t consider that a good balance between establishment and free exercise, meaning somewhere along our scale (or in one of the endless variations continually complicating the issue in real life), you decided there’d been enough “free exercise” and the government was now veering into “establishment.” Lines needed to be drawn to clarify the difference. 

And, if you’re like most Americans, you consider wherever you drew the line to be so obvious that anyone too far right or left of your mark is a bit of a wacko, and possibly dangerous.  

Staking Out Positions

In each iteration, treating the church’s efforts the same as other institutions risks promoting their religion, thus violating the Establishment Clause. The church’s activities aren’t independent of its beliefs; this particular little church strives to serve people and their community because they believe that’s what Jesus wants them to do. On the other hand, treating the church differently than other groups might very well infringe on their faith by denying them the same cooperation or support they’d receive if they weren’t religious (or if they gave up their faith). This violates the Free Exercise Clause. 

Just to complicate things, sometimes the same rules which govern how states or communities relate to or support private organizations are at odds with the specific belief systems of a particular religion. In other words, sometimes treating that little Methodist church the same as everyone else infringes on their free exercise just as much as excluding them altogether. This is when things get really interesting (or maddening, depending on your point of view). 

We can argue the details (they’re very much worth arguing), but the point is that the Establishment Clause and the Free Exercise Clause pull against one another in ways that mean anytime we try to protect one, there’s a chance we’re offending the other a little bit. I’m not aware of any major “wall of separation” cases in which either party has argued in favor of simply eliminating one clause or the other. Where the disagreement comes is precisely where on that sliding scale the lines should be drawn. 

The same sorts of “sliding scales” are present in most debates over the death penalty, immigration policy, reproductive rights, and the like, as well as many issues less likely to end up in the Supreme Court – school dress codes, regulations imposed by your local homeowners’ association, and speed limits just to name a few. This doesn’t suggest that all possible points along each scale are equally defensible or that there are no “right” answers (constitutionally speaking), but recognizing the relative nature of these arguments is often essential to making sense of them along the way and understanding the Court’s rulings and how they sometimes change over time.  

That’s what we’re going to try to do here by visiting a variety of recent Supreme Court decisions and what different justices specifically said about those decisions (whether in support or opposition). We’re also going to zoom in on a few representative topics and trace some of their jurisprudential history over the past century in order to better understand where we are now, and why. 

At every stage, my goal is to keep things as understandable as possible without overly compromising the substance of each argument or issue. It’s worth keeping in mind that I write this book not as a legal expert, but as an educator with twenty-plus years breaking down complex historical and legal issues for teenagers to better help them wrestle with many of these same subjects for themselves. While I certainly have my own points of view on most of these topics (and you’ll have little trouble figuring out what they are along the way), I’ve made every effort to make this material accessible, enjoyable, and useful for readers of all stripes.

Except Justice Clarence Thomas. I doubt he’d enjoy this one at all. 

Carson v. Makin (Analysis & Carrying On, Part Two)

~ Blue Cereal ~ 1 Comment

Stay On Your Side

Free Exercise Trumps “No Establishment”

If you’re looking for a fairly balanced overview of this case, I suggest starting here. If you’re looking for pithy, insightful analysis, on the other hand, you’re in the right place. The second part of it, anyway.

Last time, we got through opening remarks and personal disclaimers, gave a little background on the Amendments involved, and covered the Court’s introduction to the facts of the case. Chief Justice Roberts summarized the lower courts’ decisions to side with the state. Basically, they’d reasoned, Maine’s plan was intended to offer a proxy of sorts for traditional public education, and thus it was perfectly constitutional to exclude religious schools from the program.

Here’s how the Chief Justice and his cabal respond:

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions” (Lyng v. Northwest Indian Cemetery Protective Assn., 1988). In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. (See Sherbert v. Verner, 1963…; see also Everson v. Board of Ed. of Ewing, 1947…) A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith…

He then recaps Trinity Lutheran v. Comer (2017) and Espinoza v. Montana (2020) by way of demonstrating the Court’s recent fondness for free exercise, even when it means state funding of religious organizations.

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” By “conditioning the availability of benefits” in that manner, Maine’s tuition assistance program – like the program in Trinity Lutheran – “effectively penalizes the free exercise” of religion.

Roberts acknowledges that there are times when a state may be justified in excluding religious organizations from general laws or benefits, but that “this is not one of them.” For good measure, he brings in the issue of “parent choice” from one of the “voucher”-style cases the Court has tackled in recent decades.

As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. (See Zelman v. Simmons-Harris, 2002.) Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires…

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” … Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion. 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.

That’s the part that’s going to bust open the dam sooner rather than later. In and of itself, it’s entirely reasonable and constitutionally sound. As far back as Everson v. Board of Education (1947) when the state of New Jersey reimbursed parents for bus fare as part of helping their kids get to school, the Court has been fine with a “general benefit” that just happens to benefit religious organizations as well. The city repairs roads which help people get to church. The police (theoretically) protect the faithful from bad guys while they pray, chant, or sing. Fire departments respond if a mosque or temple is ablaze. The Court insists this is the same basic thing.

Except that it’s not.

General Benefits vs. Funding Indoctrination

Enabling an institution to do whatever it does by providing public services is as neutral as government can get. Those road crews don’t jump in and do repairs on the sanctuary or mosque as part of their job because that would be “establishment” – active support of specific religious activities or institutions. For them to avoid maintaining any streets which pass near a church, however, would be to deny “free exercise” – actively making it difficult for believers to partake in whatever partakery is at hand.

What the Court has done in Carson v. Makin is a substantial step further. They’ve demanded that states providing any sort of choice or flexibility in their school systems must offer comparable support for religious indoctrination in place of some of that education. They’re requiring tax dollars designated for preparing young people to function competently in a modern, diverse, complex world, be redirected to teach homophobia, science denial, sexism, misogyny, alternative history, or whatever else might be trending that week in right-wing curriculums.

A Catholic hospital is primarily a hospital; it simply happens to have a lot of Catholics working there and easy access to clergy should one be so inclined. It is unlikely, however, that the medical care itself will be substantially altered by the theology of those in charge. (I realize there are some exceptions – particularly when it comes to reproductive rights – but I’m speaking in general terms.) When Medicare reimburses the hospital for medical services provided to qualified patients, the government is playing nicely with religion. It’s neither promoting Catholicism in any meaningful way nor excluding otherwise qualified health care professionals based on their beliefs.

You’ll notice, however, that there aren’t many hospitals run by the Jehovah’s Witnesses or Buddhists. Imagine that there were, and that you were rushed into the ER at either one after a serious accident. The JWs would no doubt do their best to care for you, but they don’t believe in blood transfusions, so… bad luck, there. The Buddhists believe that suffering is part of life and must be met with acceptance rather than complicated with medical technology and all that rushing around and beeping. Now imagine that the Court has just determined that if Medicare is going to pay for SECULAR treatment (like blood transfusions or life-saving technology), it must be just as willing to pay for ALTERNATIVE treatments like prayer, mediation, and denial of such worldly approaches. In fact, there will now be LESS money to pay for the worldly approaches so that your tax dollars may be spread more equitably among those freely exercising their own approaches to healing and happiness – snake oil, bloodletting, Ayurveda, trepanation, etc.

It’s an extreme example, sure – and I promise you I have absolutely nothing against the JWs or Buddhists. I just don’t want to pay either group out of my tax dollars to provide their own alternatives to modern medical care. Nor do I want to pay evangelicals to educate kids who a mere decade from now will be voting and making world-altering decisions about health care, the role of women in society, civil rights, foreign relations, and whether or not Jesus wants us to beat the sh*t out of the gay kids.

Did I mention that I feel rather strongly about this?

Private Schools Aren’t Meant To Serve Everyone

The lower courts accepted Maine’s use of this program as essentially a substitute for traditional public schools, but Roberts isn’t buying that even a little…

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” …

To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall pay the tuition . . . at the public school or the approved private school of the parent’s choice at which the student is accepted.” The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.

He’s not wrong. This was clearly the weak point in the state’s argument to begin with based on the direction the Court has been going with these sorts of issues for the past several decades. I don’t agree with many of those earlier decisions, but given that they’ve become pretty solid precedent, Maine should have seen this coming.

This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide.

Ironically, these are two of the primary arguments against “school choice” or “vouchers” as a valid means for improving education for all kids through competition – traditionally one of the primary talking points of the same folks currently giddy over this decision. Private schools always have and always will pick and choose their students, making comparisons to public schools largely meaningless. The “choice” being made is that of each school “choosing” who it will and won’t accept – NOT of parents choosing any school they like. Vouchers make private religious education more affordable for those wealthy enough to pay the difference; poor people are still left choosing from what their coupons will buy.

This decision seems likely to increase that disparity, beginning in Maine.

Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools… Participating schools need not hire state-certified teachers… And the schools can be single-sex… In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools.

I don’t believe the Chief Justice intended to echo some of the most common arguments against what counts as “school choice” in many states. He’s simply refuting the idea that these private school options are in any way “just another version of the state providing a public school education.”

Which to my way of thinking, of course, is the whole problem.

But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools.

Well, yes. Exactly.

The (Former) Wall Of Separation

This apparent “gotcha” is, in fact, the whole point. States don’t traditionally support religious education because they’re the state. Besides, prior to last week the establishment clause said that was a big no-no.

It’s this next bit, however, that might be my favorite of the entire majority opinion:

Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education” – meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like {the one in Maine} or in a party’s reconceptualization of the public benefit.

The thing is, if Montana’s voucher program had specified that religious schools were eligible as long as they made some token effort to provide “the rough equivalent of a Montana public education,” we could have avoided all sorts of problems. I might not love the idea of paying religious institutions to perform state functions, but it would at least maintain the principle that public education is intended to provide young people with a fairly consistent body of skills and knowledge and a general understanding of civilized society and their place in it.

Arguments about the fundamental purposes or priorities of public education are varied and endless, but whatever else schools are designed to do, we at least hope they prepare young people to function capably in the world. We hope they’re able to become educated voters, to form meaningful relationships, and to pay their bills and stay out of jail. Some approaches to religion support these goals, many others do not, but public schools make every effort to fulfill these functions without coloring too far outside the lines. It’s impossible to be effective and avoid ANY moral compass in a school setting; if we can’t lay some ground rules about honesty and responsibility and not being horrible to one another, there’s no way we’ll get far teaching them Algebra II. But we try to stay out of anything clearly in the purview of faith.

Religious schools do not return the favor. For many, their faith requires rewriting history, devaluing science, and the labeling of numerous “undesirables.” Free exercise has long meant the state doesn’t prevent those who so choose from indoctrinating their children in this way, whatever the long-term consequences, but for the past half-century at least the rest of us haven’t had to pay for it.

Until now.

The primary impact of Carson v. Makin won’t be limited to rural Maine. In this decision, the Court has stripped away any lingering distinctions between public funding of public good done by religious institutions and public funding of religious instruction, evangelism, or indoctrination. According to this Court, in fact, any distinction between the two is irrelevant. If a state supports a secular effort at promoting the general welfare, it must support religious endeavors which claim even a rough, unverifiable equivalence to those same goals.

It’s hard to imagine this will remain limited even to “school choice” programs. In principle, there’s no reason it should.

As of last week, it is no longer constitutional to distinguish between peer-reviewed history and the Book of Genesis or between medical science and mysticism when it comes to government funding. Public schools will continue to face heavy scrutiny and regulation, while all private alternatives must do to avoid accountability is include religious indoctrination as part of their function. According to the majority of justices, this places them above scrutiny by government bodies at any level thanks to the protections provided by the First Amendment.

I guess we should be glad it’s still doing SOMETHING.

Carson v. Makin (Analysis & Carrying On, Part One)

~ Blue Cereal

Fence of SeparationA few days ago, the Supreme Court announced its decision in Carson v. Makin, a case involving state support of religious education in rural Maine. The short version is that states which offer any sort of support for private schooling or alternatives to state-run public schools cannot deny equivalent support to religious institutions claiming a comparable role. These institutions need not follow state curriculums or abstain from indoctrination. They may pick and choose their students on any basis they like and may teach what they like, however they like, and still get paid by the state for each student they choose to accept.

The language of the decisions does not specifically prohibit states from instituting some general academic standards; the two schools in question were both on the “approved” list of state options. (They “count” as schools for purposes of students earning a diploma but did NOT qualify for state reimbursement due to their religious focus.) Then again, the Court showed little interest in the quality of education provided by any of the schools discussed in this case. Unlike in many previous cases (particularly Zelman v. Simmons-Harris, 2002), which validated an Ohio “vouchers” program largely based on the apparent underperformance of public schools in the state and established “parent choice” and the constitutional “breaker switch” between government funding and religious application), the issue isn’t even discussed.

I know, I know – “academic quality” isn’t a First Amendment issue. Religious freedom IS. Nevertheless, previous Courts have often demonstrated at least token concern for outcomes – for the likely impact of various decisions either way. This particular Court is so enamored with taking “free exercise” to Chuck E. Cheese’s that it’s left “establishment” locked in the back seat without even cracking the windows.

Also, I may have strong feelings about this one.

I wrote about this case a few days ago and linked to some very good breakdowns of the decision and its likely impacts. Here, I’d like to highlight a few specific elements from the majority opinion, written by Chief Justice John Roberts. This may end up broken into several parts depending on how carried away I get.

Most of the cases cited by Roberts, as well as those referenced by Justices Breyer and Sotomayor, are covered in some detail in “Have To” History: A Wall of Education, which I’m sure you’ve all recently ordered and read in preparation for this term. If so, you know that when I’m writing for publication, case summaries are relatively balanced and my tone largely rational. My goal is to offer useful references and accessible explanations to a wide possible audience.

That’s not always the case here on the blog. You have been warned.

A Little Background…

The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general. These first two clauses are often in tension with one another, but taken together clearly indicate a desire by the Framers that government do its best to avoid promoting OR hindering religious beliefs or behaviors.

The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be. There are a handful of influential voices, however, who really hate this metaphor and believe it misrepresents the intent of the First Amendment.

The Fourteenth Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the Fourteenth Amendment is known in legal circles as “incorporation.” It’s why the Supreme Court will hear a case involving Maine citizens and Maine public schools when it involves a fundamental right like those covered in the First Amendment.

The Fourteenth Amendment also explicitly prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” This one can be a bit redundant, but it’s often thrown in with whatever specific complaints are at the heart of cases like this one to emphasize the idea of unfair treatment – in this case, against the families wishing to sent their children to religious high schools.

Alright, let’s get to it. These excerpts of the Supreme Court’s written opinion have been edited and formatted for readability. I’ve done my best to maintain appropriate context and intent. You can read the full decision as originally written here.

The Majority Opinion (Some Of It, Anyway)

Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:

Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education” and that the required schools be operated by “the legislative and governing bodies of local school administrative units.” But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.

Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children…

Get used to seeing “SAU” for “school administrative units.” This is a term used to avoid getting bogged down by any distinctions between “districts” or “counties” or “school corporations,” etc.

Notice the root of the issue here is that Maine doesn’t actually have public high schools operating in something like half the state. There are logistical reasons for this (who knew Maine was THAT rural?), but it’s an important issue because it means parents in those areas are effectively required to utilize “school choice” if they want their children to receive an education (and they’re not up for homeschooling). Once “parent choice” is in the mix, it’s much more difficult for the state to limit which institutions can and can’t take those “vouchers” – in whatever form the funding takes.

To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law. The school must either be “currently accredited by a New England association of schools and colleges” or separately “approved for attendance purposes” by the Department. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1… In schools that qualify for the program because they are accredited, teachers need not be certified by the State and Maine’s curricular requirements do not apply…

Note that Roberts is summarizing the existing legislation in Maine, not issuing requirements. He covers a few more details and points out that the state does not automatically exclude schools associated with a religious institution but instead considers their mission and methods. In other words, Maine apparently made a distinction between schools which happened to be religious and those actively promoting specific doctrines, values, and opinions of others as part of their daily efforts.

In 2018, petitioners… alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment as well as the Equal Protection Clause of the Fourteenth Amendment. Their complaint sought declaratory and injunctive relief against enforcement of the requirement…

While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue (2020)…

I told you you should have read the book, didn’t I? Here’s the short version of Espinoza…

Montana provided tax credits to donors who funded “Student Scholarship Organizations,” which would in turn help pay private school tuition for qualifying families. (Some states like to further obfuscate these by calling them “educational savings accounts” or some other such nonsense.) Because Montana’s state constitution prohibits the use of public money to support religious institutions (a provision common to many state constitutions and known informally as the “Blaine Amendment”), the Montana Department of Revenue declared that the program must exclude religious schools. The Court determined that excluding religious schools from the program violated the Free Exercise Clause of the First Amendment. Any program available to other institutions must be available to religious groups on the same terms, no matter what state constitutions say.

Because smaller, less oppressive government means crushing state autonomy whenever it serves the agenda of entrenched economic, cultural, and political power.

The First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza. First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity – a status that in and of itself does not determine how a school would use the funds” – Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.” Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.”

Lawyers arguing for Maine had two basic choices: insist that the Court overturn its own recent precedents, or insist that this case was significantly different than those cases. Apparently, they focused on the latter and persuaded the lower courts of this distinction. The First Circuit determined that unlike in cases involving “school choice” or “vouchers” or “educational savings accounts” or whatever, Maine COULD limit where its tax dollars were being spent because the schools in question were serving as proxies for traditional public schools.

The Maine Problem

In my humble opinion, this was the weak link in the state’s reasoning. Maine unwittingly offered activists a technical crack in a much larger dam, and this ideologically driven Court is perfectly happy to play sledgehammer. That’s why conservative talking heads around the country are able to shake their heads in smug amusement at the “overreaction” by the left to this decision. They know the dam is coming down. We know the dam is coming down. The Court has been looking for the opportunity to bring the dam down for years now and said as much to anyone paying attention. In the meantime, however, we’ll have to endure the mockery and faux pity of those working so hard to knock down this particular wall as they laugh at us for thinking the dam is about to come down when of course that’s just silly and not what this case says at all.

Don’t let it get to you; in a few years, when the wall is largely washed away, these same folks will rewrite the timeline in such a way as to either condemn the wall having been built in the first place or to blame us for knocking it down while those on the right worked vigorously to defend it. Might as well roll with it, baby.

Of course, a crack doesn’t require elimination of the entire wall. Had they wished, the Court could have taken a far more moderate approach. We’ll pick up there next time.

Carson v. Makin (My Free Exercise Can Beat Up Your Wall of Separation)

~ Blue Cereal ~ 2 Comments

SeparationWell, any pretense Chief Justice John Roberts has been maintaining about being in any way “moderate” or “reasonable” seems to have been blown to hell this week. The Court’s decision in Carson v. Makin (2022) accelerates the jurisprudential slide away from the proverbial “wall of separation” and elevates the “free exercise” of the minority with the most influence in federal government over the right of anyone else not to pay for it. In the process, the Supreme Court is now openly deriding the suggestion that states have an obligation (or even the right?) to provide a secular public education for kids to begin with.

In Zelman v. Simmons-Harris (2002), the Supreme Court decided that state voucher programs providing funding for students to attend private schools – even religious institutions – can be constitutional. It relied heavily on the role of “parent choice” to determine where state funds were actually spent. Even if the majority of vouchers were used at private religious institutions, as long as there were valid secular options and the choices were made by families rather than the government, the program did not violate the Establishment Clause.

In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court required the state of Missouri to include churches or other religious organization in a state program to modernize playgrounds. This was the first time the Court determined that the U.S. Constitution required government to provide direct public assistance to religious institutions. In so doing, it called into question the validity of “the Blaine Amendment” – provisions in many state constitutions which prohibit direct support of sectarian institutions. Usually, this meant schools.

In Espinoza v. Montana Department of Revenue (2020), the Court determined that excluding religious schools from voucher programs violated the Free Exercise Clause of the First Amendment. The Court had previously distinguished between what funds were being used to DO (meaning that general good being done by religious institutions might still qualify for public funding) vs. distinctions based on what an institution WAS or BELIEVED. Restricting public funding based on what was being promoted might be OK; restricting it based on the beliefs or values of the institution was NOT. In Espinoza, despite token acknowledgement of this historical consideration in the majority opinion, in practice the distinction was clearly beginning to crumble.

In Our Lady of Guadalupe School v. Morrissey-Berry (2020), the Supreme Court extended its earlier ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) and determined that for purposes of hiring, firing, or other human resources type decisions, teachers and staff at religious schools were clergy. Normal protections regarding age, illness, sexuality, political affiliations, race, unexpected life events, etc., simply did not and could not apply. It didn’t matter whether the teacher in question was even a member of the faith – they could be hired and fired at will and treated however the institution wishes to treat them with little redress.

As I said so very profoundly in “Have To” History: A Wall of Education…  

The combination of Espinoza v. Montana and Our Lady of Guadalupe (decided during the same session) seemed to set up something of a paradox. Private religious schools are primarily “schools” when it’s time to hand out tax dollars but primarily “churches” when the specter of accountability appears. This is a tad frustrating for public school advocates who see tax dollars being redirected for religious uses minus any real expectations or accountability.

I know – makes you wish you’d already bought the book, doesn’t it?

Now comes Carson v. Makin, in which the Court has just ruled that if Maine wishes to provide ANY assistance or aid to non-public schools, it cannot exclude religious institutions, no matter what policies they uphold or which doctrines they teach as part of that education. This is particularly problematic in Maine, where apparently there are many areas without secondary public schooling options, but the larger principle will impact educational institutions in every state, regardless of local wishes or logistics.

I’ll post a separate breakdown of the ruling in the next few days, but for now I’ll simply link to some of the better summaries of the decision by others. I don’t think any of them are behind paywalls, but honestly I lose track sometimes, so my apologies if any of the links take you to a dead end.

“Supreme Court Rejects Maine’s Ban on Aid to Religious Schools” (The New York Times) – this is one of the more balanced and succinct articles on the list and a good place to start if you don’t know much about the case to begin with.

“The Supreme Court Just Forced Maine to Fund Religious Education. It Won’t Stop There.” (Slate) – this one offers excellent analysis of the likely impact of this case and shares many of my own concerns. There are also plenty of helpful links to related cases and analyses embedded in the article itself. As a teaser, here’s the opening paragraph:

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.

“The Supreme Court Tears a New Hole in the Wall Separating Church and State” (Vox) – another excellent analysis of the case, although the tone is slightly less horrified than that of the folks at Slate or myself. I particularly like this analogy:

Think of it this way: Suppose that a state provides grants to help private institutions set up food banks and soup kitchens. If a church sought one of these grants, it could not be denied because of its Christian identity. But the state could require the church to spend 100 percent of the grant money it receives on secular activities such as feeding the poor, and not on religious activity such as distributing Bibles to the needy.

Carson effectively eliminates this distinction between organizations that have a religious identity, and organizations that want to use government funds for religious purposes. After Carson, a private school may not only receive a government tuition subsidy, it may also use that subsidy to fund explicitly religious instruction.

Even if you’re a religious person yourself, which specific theology do you think it’s most likely your tax dollars will be supporting going forward? If you need a hint, check out the dominant voices in the Republican Party over the past few years.

“Court’s Excellent Free-Exercise Ruling in Carson v. Makin” (National Review) – even if you’re not familiar with National Review, the title should tip you off that they’re not at all displeased with this decision. I’m including this piece partly to pretend I’m fair and balanced, but mostly because it includes some relevant background and perspective not present in the other links. Like most conservative voices, it deals with the worst of the decision by simply ignoring the obvious ramifications, but that doesn’t mean it’s not worth a read.

“How Supreme Court Ruling Lays Groundwork for Religious Charter Schools” (The Washington Post) – I have a digital subscription, but WP might do one of those “limited number of free articles” things. This one covers the important stuff but focuses especially on the “status-use distinction” mentioned above.

Finally, here’s a PDF of the Court’s written decision, including dissents from the usual suspects. As I’ve lovingly suggested in both of my books on our nation’s highest court, these aren’t as hard to read as they may seem when you first peruse them. Some of the language gets wonky, and the formatting is at times off-putting, but most of the various opinions are quite accessible and worth your time.

I hope to give this one further attention and perhaps draw attention to my own thoughts and concerns in the next few days. As always, your comments are welcome below.