The constitutional separation between church and state is contained in a two-part sentence at the start the 1st Amendment.
Observing both clauses has always required a delicate balance, since the two parts could be in conflict if each were taken to their logical extremes. Through most of our history, courts have given states the leeway to pass laws that don’t go too far in one direction or the other.
But that has changed with the arrival of a new Republican majority on the Supreme Court. Instead of trying to balance the two ideas, the justices have just picked a winner. In a series of rulings the majority has focused entirely on the freedom to practice a religion, even if that requires government involvement.
In the words of one court watcher, free exercise has swallowed the establishment clause.
The latest evidence for this is a ruling striking down a Maine law that excluded sectarian religious schools from the high-school tuition programs that some rural towns use to fulfill their obligation of providing a free public education.
In Carson v Makin, the six Republican appointees ruled that as long as taxpayer funds are used to send students to non-sectarian private schools, the state is also bound to pay for religious education, even if that includes teaching intolerant views that are at odds with community values. Anticipating this decision, the Maine Legislature passed a law that would prohibit schools that accept state-subsidized tuition aid from discriminating against students based on sex, sexual orientation or gender identity. But it does not prevent these schools from spreading the religious teaching that those students are sinful in the eye of God.
As Justice Sonya Sotomayor pointed out in her dissent, “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.”
Maine’s religious school exemption has been on the books since 1980, and has survived numerous court challenges. Up until last week, state and federal courts found that Maine does not prevent anyone from practicing their faith when it avoids merging government and religion.
What’s changed is the right-wing takeover of the Supreme Court which began in 2016, when Senate Republican Leader Mitch McConnell refused to consider then-President Obama’s Supreme Court nominee, an unprecedented move that left the court shorthanded for more than a year.
In 2017, McConnell and Senate Republicans (including Maine Sen. Susan Collins) broke precedent again by eliminating the 60-vote threshold for Supreme Court nominees, allowing the partisan confirmation of three hard-right ideologues. They were all vetted by the same dark-money groups led by the Federalist Society and Judicial Crisis Network that spent millions to support their nominations and pack the court. The groups got their money’s worth with decisions like this one.
It’s also worth noting how this case got to the Supreme Court. The Maine families who wanted the state to pay for their children’s religious education did not have to pay for this lawsuit. It was brought on their behalf by the Institute for Justice, a libertarian public-interest law firm that was started with a donation from the ultra-conservative Koch brothers. The donor-funded firm finds cases in which it can sue state and federal governments to attack various regulations.
These law firms work hand-in-hand with groups that recruit and advocate for conservative judges, and the ideological organizations that file friend-of-the court or “amicus” briefs, which are quoted by the Federalist-Society-picked judges in their rulings.
It’s a safe bet that none of these groups and funders care very much about the complexities of educating children in rural Maine. But you can be sure that they care a great deal about disrupting public education and allowing more government support for religion.
Writing for the majority, Chief Justice John Roberts says that this decision takes a neutral view to religious schools. Parents, not the state, choose the school that their children will attend. Religious parents, he reasons, should not be treated differently than secular ones when it comes to this government benefit.
But allowing some parents to direct taxpayer money to religious groups could quickly turn into the establishment of a government religion.
What would stop a group of parents in a rural Maine town with no high school from creating their own religious school and choosing to send their children there – at the rate of $10,000 in state money per child? If it attracted just 20 students, it could operate with $200,000 a year in taxpayer money – but without any oversight from a local school board.
That might be consistent with a broad reading of the the 1st Amendment’s free exercise protection, but it obliterates the establishment clause. Instead of finding balance, the justices picked a winner.
The Supreme Court and its big money allies have used Maine to blow a hole in the wall between church and state. We will soon find out if this is going to be good for the church or the state.
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