I do not know what most people think “separation of church and state” means, but I can tell you that the six conservative justices on the Supreme Court think it means nothing. There is no meaningful check anymore on whether conservatives will allow religious concerns to supersede secular laws. Can businesses run by religious people deny health care to women? Yes, according to Burwell v. Hobby Lobby Stores. Can religious schools use public funds to upgrade their school playgrounds? Yes, according to Trinity Lutheran v. Comer. Can the state be forced to give scholarship aid to students attending religious education? Yes, according to Espinoza v. Montana Department Of Revenue. Can religious organizations or institutions get state funds to discriminate against LGBTQ couples in adoption services? Yes, according to Fulton v. City of Philadelphia. Can houses of worship ignore occupancy restrictions during a pandemic? Yes, according to Roman Catholic Diocese of Brooklyn v. Cuomo.
Now, the Supreme Court has ruled that taxpayer funds must be used to pay for tuition at religious schools if the state also makes taxpayer dollars available for private, nonsectarian schools.
The case, which was decided Tuesday, is called Carson v. Makin. It deals with a law in Maine that provides tuition assistance—vouchers, basically—for students who live in districts where no public secondary school is available. The public, taxpayer money is available to families so they can send their kids to private schools in their area, but not “sectarian” schools. Some families in Maine wanted to use this public money to send their kids to religious schools, specifically Bangor Christian Schools and Temple Academy. Both schools “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” The New York Times reports (citing Maine’s Supreme Court brief).
The state and the lower federal courts said no, the families could not get money to send their kids to these schools. That’s because using public money to pay for tuition at a religious school is, or should be, a point-and-click violation of the First Amendment’s prohibition on the “establishment” of religion. In a secular country, the state should play no role in funding religious education.
But the Supreme Court, by a vote of 6-3, reversed the lower courts and ordered the state to pay tuition to these religious institutions. Writing for the majority, Chief Justice John Roberts ruled that Maine’s prohibition on funding religious education actually discriminated against those religious institutions, and thus violated the “free exercise” clause of the First Amendment. Roberts argues that since Maine makes tuition assistance available for nonsectarian private schools (which it does), it must make the same money available for religious instruction.
There is, of course, an argument to be made that Maine shouldn’t make public money available for private schools at all, regardless of religion. There is an argument to be made that Maine should get its act together and provide free middle schools and high schools to students in all of its districts. But the argument that money that is made available to help families pay for private schools must be made available to help them pay for parochial schools has as much merit as saying that every library that carried a copy of On the Origin of Species must also carry a picture book of Jesus riding a velociraptor, or else we’re discriminating against Chris Pratt (don’t get any ideas, Florida).
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Free exercise of religion should mean that religious schools in Maine are free to indoctrinate their charges however they want. But taxpayers in Maine should not have to pay for it.
The 6-3 ruling broke down along the usual party lines, with all six conservatives standing behind Roberts’s opinion while the three liberals dissented. Justice Stephen Breyer wrote a dissent criticizing the majority’s analysis of its own prior theocratic rulings. But Justice Sonia Sotomayor brought the thunder in her separate dissent. The whole thing is worth reading, but here are the closing lines:
What a difference five years makes. In 2017 [in Trinity Lutheran v. Comer], 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.
She’s right, of course, and what should truly worry the remaining secularists in this country is the sheer speed with which the conservative court has torn down the wall between church and state. Trinity Lutheran, the case that Sotomayor references, was the inciting moment. It involved a Missouri program to update school playgrounds with recycled tires. Schools had to get on waiting lists to get the upgrade, meaning it was a scarce resource and not every school would end up with a new playground. The state prohibited religious schools from getting the upgrade, but the Supreme Court ordered the state to include parochial schools in the program. At the time, Sotomayor wrote in dissent: “The Court today profoundly changes that relationship [between state and church] by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” She was right.
As Sotomayor points out, 2017 wasn’t that long ago, and it really hasn’t taken the Supreme Court, emboldened by its Republican appointees, that much time to functionally overturn the separation of church and state.
And the hits will keep on coming, within the next few weeks, most likely. As of this writing, we’re still waiting for the Supreme Court to decide Kennedy v. Bremerton School District. That’s the case of the public school football coach who prays at the 50-yard line. One takeaway from Sotomayor’s salty dissent in Carson is that the Kennedy case is probably not going her way either.
Americans tend to think of the separation of church and state as one of our foundational principles. And it was. But it’s not anymore. Nothing good can survive the conservative takeover of the Supreme Court. And it doesn’t take these conservatives long to dismantle whatever it is you hold dear.
Correction: An earlier version of this story included a description of the procedural history of Trinity Lutheran v. Comer that was inaccurate. The case was not argued twice—first, after Antonin Scalia’s death and then again after Neil Gorsuch’s appointment—but just once, in 2017. We regret the error.
