For a decade or more, U.S. Supreme Court justices have been arguing about the separation of church and state. What we keep seeing is a clash between two different forms of “liberalism,” with that term defined into terms of political science instead of partisan politics.
Some justices defend a concept of church-state separation that leans toward the secularism of French Revolution liberalism. The goal is for zero tax dollars to end up in the checkbooks of citizens who teach or practice traditional forms of religious doctrine (while it’s acceptable to support believers whose approach to controversial issues — think sin and salvation — mirror those of modernity).
Then there are justices who back “equal access” concepts articulated by a broad, left-right coalition that existed in the Bill Clinton era. The big idea: Religious beliefs are not a uniquely dangerous form of speech and action and, thus, should be treated in a manner similar to secular beliefs and actions. If states choose to use tax dollars to support secular beliefs and practices, they should do the same for religious beliefs and practices.
At some point, it would be constructive if journalists spotted these “equal access” concepts and traced them to back to their roots in the Clinton era (and earlier). But maybe I am being overly optimistic.
You can see these tensions, kind of, in the Associated Press coverage of the new SCOTUS decision that addressed a Maine law that provided tax funds for parents who chose secular private schools, but not those who chose religious schools. The headline of the main report stated, “Supreme Court: Religious schools must get Maine tuition aid.”
Chief Justice John Roberts wrote the opinion for the majority in this 6-3 ruling. In this story, “liberal” is used to describe the majority.
“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” Roberts wrote.
The court’s three liberal justices dissented. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Justice Sonia Sotomayor wrote.
Justice Stephen Breyer noted in a separate dissent that Maine “wishes to provide children within the State with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion.”
The “equal access” concepts are clearly stated in the next paragraph:
… Roberts wrote that states are not obligated to subsidize private education. Once they do, however, they can’t cut out religious schools, he wrote, echoing his opinion in a similar case from two years ago. “Maine chose to allow some parents to direct state tuition payments to private schools; that decision was not ‘forced upon’ it,” Roberts wrote.
It’s interesting to note that the more elite the newsroom, the more likely it was that the journalists leaned toward a more secular, French Revolution view of this case, with more space dedicated to voices on the secular side of the fight.
National Public Radio (funded, in part with tax dollars) was the best example of this trend, with coverage that really needed an “analysis” tag. Readers with a few moments to spare might enjoy contrasting the NPR story (click here) with the Baptist Press coverage (click here), provided by an openly conservative press service linked to the Southern Baptist Convention. Spot any patterns?
As one might expect, the Washington Post story focused on the blunt debates between the justices themselves, with little material dedicated to insights from church-state activists on the political left and right. That’s a valid choice, I guess, for the D.C. Beltway audience.
The New York Times — no surprise here — offered the strongest material warning that scary armies of religious conservatives could use this ruling (think freedom of association) to create institutions that express and defend their beliefs (while liberal religious schools could do the same thing, of course). Thus:
One of the schools at issue in the case, Temple Academy in Waterville, Maine, says it expects its teachers “to integrate biblical principles with their teaching in every subject” and teaches students “to spread the word of Christianity.” The other, Bangor Christian Schools, says it seeks to develop “within each student a Christian worldview and Christian philosophy of life.”
In his dissent, Justice [Stephen] Breyer wrote that both schools “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”
The best report that I have spotted so far ran at USA Today, with this headline: “Supreme Court: Schools offering religious instruction may be entitled to state tuition aid.”
While the words “equal access” never appear, it’s pretty easy to see what is going on in the following excerpt from this news story:
… Roberts pushed back on the notion that the court is forcing school districts to fund religious schools. Maine doesn't have to fund private schools at all, he asserted in the opinion. The state could increase transportation options for students in remote areas, so they could more easily access other public schools. Or Maine could "operate boarding schools of its own."
The dispute was similar to one the Supreme Court considered in 2020. Roberts wrote for a 5-4 majority then that a Montana scholarship program could not exclude religious schools. Roberts said a state doesn’t have to provide money to private schools, but if it chooses to do so, it can’t "disqualify some private schools solely because they are religious." …
In the Maine case, the Boston-based U.S. Court of Appeals for the 1st Circuit ruled for the state, concluding that the funding was not denied because the schools are Christian but because of the Christianity the schools teach. Some of the high court's conservative justices questioned whether there's a meaningful difference between the two.
Ah. The First Amendment freedom to practice one’s religion — or to choose not to, or to choose to practice a faith more in keeping with “mainline” religious doctrines favored by the current state — might involve words and speech that reflect the beliefs of the citizens doing the choosing.
Here is my main journalism point: This point of view is part of the larger church-state debate inside the U.S. Supreme Court. This “conservative” point of view actually has some complex left-right coalition roots. At some point, reporters may want to dig into that fact.
FIRST IMAGE: Uncredited graphic with IPA Newspack feature entitled “Tearing Down The Wall Between State And Church.”