The U.S. Supreme Court’s 6-3 decision handed down Tuesday in Carson v. Makin is not a surprise: It struck down a 1981 law that limited “school choice” funding to secular schools.
Its immediate effect will be limited; Maine has an unusual “school choice” system in which towns with no schools – there are many in the lightly populated hinterlands – send students anywhere they want to go, at public expense.
Yet it also represents a tectonic shift in our understanding of the Constitution, as interpreted by the court. Like many features of our founding document, it has provisions that appear to be in tension.
The Maine case involves two key phrases of the First Amendment, back to back. Congress is restricted from “creating an establishment of religion” and also barred from “prohibiting the free exercise thereof.”
In the original understanding, an “established” church was a state church – such as Britain still has, and which some of the original colonies, chiefly in New England, also possessed. Gradually, it came to mean what Thomas Jefferson called “separation of church and state,” which has preserved America from the religious wars that wracked Europe for three centuries.
It’s part of the genius of the Constitution that its guarantee separating church from state also produced an explosion of religious sects, and the highest level of church-going in the Western world – the “free exercise” part.
Maine’s Protestant establishment once held sway over the Catholic minority. In a crucial 1854 decision, the state Supreme Judicial Court ruled that a Catholic girl could be forced to read the Protestant version of the Bible in class. This led to the first Catholic schools in Maine, several of which still flourish today.
After World War II, the first federal aid to education statutes spawned a battle over what schools could receive funding. Boston’s Cardinal Francis Spellman labeled a congressman a “bigot” for insisting church-state separation meant that Catholic schools couldn’t receive funding. But other Catholics agreed with the public-private distinction, and parochial schools have generally not received public funding.
Lines between public and private have long since blurred, however – and the Supreme Court appears intent on blurring them further. It’s approved “school choice” programs involving tax breaks and public funding, offered from Montana to New Hampshire.
Chief Justice John Roberts cited those decisions in Carson v. Makin, and gave every indication the court majority will continue to weigh the “free exercise” clause more heavily than the “establishment” clause.
There are dangers here. Another remarkable feature of American government was the first universal public education system, with compulsory attendance. By the mid-19th Century, Americans were more literate, and educated, than in Europe – a feature intimately tied to our remarkable economic growth.
Public and private schools have prospered. And the movement to break down the barrier between public and private is a relatively recent project – even a renowned conservative like Justice Antonin Scalia was a committed secularist who’d doubtless have opposed the Carson decision.
When Republicans were briefly in control of the Governor’s office and the Legislature from 2010-12, they installed Maine’s first “charter schools,” capped at 10 – essentially private schools funded by taxpayers.
This begs the question of what taxes are raised to do. If private institutions can garner an increasing share of public dollars to spend as they see fit, the erosion of the universal public system will accelerate.
Allowing religious schools into the mix – one can imagine a religious charter school being welcomed by the court majority – heightens the dangers.
At the turn of the 20th Century, Supreme Court Justice David Brewer excited controversy by proclaiming this “a Christian nation.” He voiced what was then a common understanding – the vast majority of Americans then were Christians.
Brewer’s words were dismissed as unfortunate, and never figured in a majority opinion. Yet today’s court could produce exactly that result – unseparating church and state, with grave consequences, as we see now in nations as different as India and Israel.
The “Christian right” has become increasingly aggressive, a driving force behind various movements dominating the Republican Party. But this is manifestly not a “Christian nation” now.
There are dozens of religious denominations from around the world, just as hundreds of languages are spoken. All are protected; none are favored.
By removing boundaries between public and private funding, and upending a 75-year-old understanding of the Constitution, the court invites a future in which a dominant religion could indeed oppress others.
Never has the saying “the Constitution is what the judges say it is” been more relevant – as another strand of the bonds holding Americans together begins to fray.
Douglas Rooks, a Maine editor, commentator and reporter since 1984, is the author of three books. His first, “Statesman: George Mitchell and the Art of the Possible,” is now out in paperback. He welcomes comment at drooks@tds.net
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