The Supreme Court is making the separation of church and state unconstitutional


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Religious freedom sounds like a good idea, doesn’t it? It is in the First Amendment, afterall: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the hands of today’s conservatives, however, “religious freedom” has been flipped upside down, used as a cudgel to beat down the wall separating church and state while elevating Christianity above all other religions (or lack thereof).

The Supreme Court first applied the Establishment Clause to all the states, not just the federal government, in 1947’s Everson v. Board of Education ruling. Justice Hugh Black, writing for the majority, stated that “no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” Both Black’s majority opinion and Justice Wiley Rutledge’s dissenting opinion invoked the importance of a “wall of separation between church and state.”

Everson remained the law of the land for decades, until Chief Justice William Rehnquist got his hands on a case involving school vouchers in 2002. Zelman v. Simmons-Harris involved an Ohio program that provided public-funded tuition vouchers to parents to send their children to participating public or private schools. Some of the participating schools were religious in nature, leading to a lawsuit against the state for violating the Establishment Clause. Justices Rehnquist, O’Connor, Scalia, Kennedy, and Thomas ruled that the program does not violate the Establishment Clause because parents were making the choice, not the government:

…government aid reaches religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual aid recipients, not the government, whose role ends with the disbursement of benefits.

Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, wrote in the dissent that “[c]onstitutional limitations are placed on government to preserve constitutional values in hard cases, like these.”

How can a Court consistently leave Everson on the books and approve the Ohio vouchers? The answer is that it cannot. It is only by ignoring Everson that the majority can claim to rest on traditional law in its invocation of neutral aid provisions and private choice to sanction the Ohio law. It is, moreover, only by ignoring the meaning of neutrality and private choice themselves that the majority can even pretend to rest today’s decision on those criteria.

The following years just brought more erosion of the wall separating church and state. In Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) the Supreme Court ruled that the exclusion of churches from an otherwise neutral and secular aid program violates the First Amendment’s guarantee of free exercise of religion. Justice Sotomayor, joined by Justice Ginsburg, dissented:

This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.

Then, in 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that a state-based scholarship program that provides public funds to allow students to attend private schools cannot discriminate against religious schools under the Free Exercise Clause. Justice Sotomayor called the majority’s ruling “perverse” (Ginsburg, Breyer, and Kagan each wrote their own dissents):

Today’s ruling is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place. We once recognized that “[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs.” Today’s Court, by contrast, rejects the Religion Clauses’ balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints.

Following their win in Espinoza, attorneys for the Institute for Justice, who argued on behalf of parents in the case, turned their attention to Maine’s exclusion of religious schools from a “tuitioning towns” program.

“We are going to build upon this decision…to make sure that any further legal impediments don’t stand in the way of school choice programs,” IJ President General Counsel Scott Bullock said on a call with reporters Tuesday.

Yesterday’s ruling

The Supreme Court on Tuesday ruled 6-3 along partisan lines (in Carson v. Makin) that Maine must fund religious education as part of a school voucher program that pays tuition for students in rural parts of the state without public schools.

In some of the more sparsely populated areas of Maine, school districts opt not to run their own secondary schools. Instead, families receive tuition vouchers that can be used to pay for private education—but only at nonsectarian schools (i.e. schools that don’t provide religious instruction). Two couples sued the state, arguing that Maine is denying educational opportunity through religious discrimination.

As the state explained in its brief, the families didn’t sue just to send their children to a religious school with taxpayer money, they sued to send their children to schools that teach hate of LGBTQ+ individuals and discriminate against LGBTQ+ teachers and students. One of these schools, Bangor Christian Schools (BCS), “believes that a student who is homosexual or identifies as a gender other than on his or her original birth certificate” cannot be admitted to the school. BCS also “ will not hire teachers who identify as a gender other than on their original birth certificates, nor will it hire homosexual teachers.”

Among BCS’s educational objectives are to: 1) “lead each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of his/her life;” 2) “develop within each student a Christian world view and Christian philosophy of life;” and 3) “prepare each student for the important position in life of spiritual leadership in school, home, church, community, state, nation, and the world.”

The other school the plaintiffs wish to send their children to is Temple Academy (TA), which “has a ‘pretty hard lined’ written policy that states that only Christians will be admitted as students.” TA provides a “biblically-integrated education,” which means that the Bible is used in every subject that is taught.

TA will not admit a child who lives in a two-father or a two-mother family. TA will not admit a student who is homosexual…A child who identifies with a gender that is different than what is listed on the child’s original birth certificate would not be eligible for admission…

A person must be a born-again Christian to be eligible for all staff positions at TA, including custodial positions. Homosexuals are not eligible for employment as teachers at TA. In their employment agreements, teachers must acknowledge that the Bible says that “God recognize[s] homosexuals and other deviants as perverted” and that “[s]uch deviation from Scriptural standards is grounds for termination.”

Just as he did in Trinity and Espinoza, Chief Justice John Roberts ruled in favor of breaking down the church-state wall. “There is nothing neutral about Maine’s program,” Roberts wrote for the 6-3 majority. “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” Having chosen to provide public funding for private schools, Roberts concluded, “it cannot disqualify some private schools solely because they are religious.”

Justice Sotomayor dissented (Breyer wrote his own dissent, joined by Kagan), writing that in a short time, the Supreme Court has “shift[ed] from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build…From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction. In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds. The upshot is that Maine must choose between giving subsidies to its residents or refraining from financing religious teaching and practices…

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 without 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.

What this means

Chief Justice Roberts’ opinion in Carson means that once states start spending taxpayer dollars on private schools through vouchers, tax credits, or scholarships, the state must open that money up to religious as well as secular schools. Currently, 15 states offer school vouchers and 17 states offer scholarship tax credits for private schools. These states must now either allow public money to go to religious schools—even those that propagate bigotry—or end funding for private schools altogether.

The conservative majority does not seem to care about the Americans who do not want their taxes supporting religious indoctrination and LGBTQ+ discrimination. Instead, the court is too caught up in perceiving anti-Christian persecution where none exists, resulting in the exact opposite outcome that the catchphrase “religious freedom” would imply: the elevation of one religion, Christianity, above all others.