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The conservative super-majority on the Supreme Court just punched another giant hole in the wall of separation between church and state in the case of Carson v Makin, ruling 6-3 to overturn a perfectly sensible Maine law.

What the Carson v Makin case is all about

Students in Maine are guaranteed free public education until they graduate high school. But in some rural parts of the state, where there are no local schools, students have the option of attending a private school on the state’s dime (assuming they’re accepted into those schools). State law, however, mandates that those schools must be secular. Taxpayer money can’t be used to pay tuition at a religious school. Makes perfect sense.

But a few years ago, three sets of families represented by the (Libertarian) Institute for Justice and the (conservative) First Liberty Institute sued the state claiming it was illegal for Maine to deny funding to the Christian schools the students wanted to attend. Their schools met every condition laid out by the state for a tuition reimbursement… except for the religion part. (Amy and Dave Carson are two of the parents involved in the lawsuit, and Maine’s Commissioner of Education is Pender Makin, so the case was called Carson v Makin.)

The Christians lost an earlier version of this case, but in 2020, the Supreme Court threw them an unexpected lifeline. The conservative majority decided a case called Espinoza v Montana Department of Revenue in which they decided that taxpayer funding could subsidize private religious education. If states offered funding for private schools at all, the justices said, they may also have to extend that offer to private religious schools. (It depended on the kind of funding program the state offered.)

With that in mind, the conservatives sued again… and lost. Then they appealed… and lost. In fact, the U.S. First District Court of Appeals didn’t buy their argument at all. They said the schools those families wanted to attend discriminated against LGBTQ people and required teachers to accept Jesus. One school even made employees sign a statement saying “God recognize[s] homosexuals and other deviants as perverted.”

In other words, these weren’t just regular schools that happened to be run by churches; these were schools that existed to promote a certain ideology. One of the judges even said the Maine program was acceptable because it only denied subsidies if the school’s educational program was explicitly religiousJudge David Barron wrote, “Sectarian schools are denied funds not because of who they are but because of what they would do with the money—use it to further the religious purposes of inculcation and proselytization.”

The conservatives didn’t care about those arguments. They asked the U.S. Supreme Court to overrule the decision, and the Supreme Court, with its conservative super-majority, took it up. The hope for conservatives was a favorable decision for the Christian schools could apply to other states, too, not just Maine.

Atheist and church/state separation groups urged the Court to uphold the earlier rulings for a variety of reasons:

  • Overturning Maine’s law would violate established legal precedent.
  • Nothing in the Constitution requires public funding for religious education.
  • Maine’s tuition program is already neutral toward religion.
  • The arguments for overturning the law “endorse a longstanding hostility toward atheistic belief systems.”
  • The revised conception of free exercise being promoted here would harm atheist families.
  • The First Amendment ensures “that taxpayers are not compelled to subsidize religious teaching or worship.”
  • The Constitution’s “no aid” principle is meant to prevent government entanglement with religious education and the taxpayer-funded oversight that would be necessary if we gave religious schools public money.

In other words, there were a lot of arguments that could be made in favor of upholding the earlier decisions.

What the Supreme Court conservative super-majority decided

This morning, however, those church/state concerns were summarily dismissed. Writing for the conservatives on the Court, Chief Justice John Roberts argued that Maine had broken the law by not allowing taxpayer dollars to go to schools hellbent on religious indoctrination. Simply put, Roberts say if a state allows taxpayer money to go to private schools, “it cannot disqualify some private schools solely because they are religious.” (He’s quoting the Court’s opinion in Espinoza, and building off of a previous decision in Trinity Lutheran, but says those principles also apply here.)

In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.

What that means in practice is that Maine taxpayers will now have to fund Creationism, homophobia, anti-transgender misinformation, and Sunday School nonsense masquerading as actual history and science… if parents taking advantage of the state’s program choose to have their kids attend one of those private Christian schools.

Roberts says Maine has plenty of options: They could build more public schools, make buses more available to students living in rural areas, “or even operate boarding schools of its own.” None of those are particularly viable. The program that had already been in place was perfectly fine. The conservative justices simply saw an opening to allow taxpayer dollars to go to religious organizations and they blew it wide open.

What the Court’s liberal minority said about Carson v Makin

In dissent, Justice Stephen Breyer wrote that this is a gross misreading of the First Amendment. The Constitution says the government “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” but Breyer wrote that the conservatives on the Court only seem to care about the bit after the comma. (“The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”)

He also highlighted how the majority says a state “must” (not “may”) fund religious education in these circumstances. Maine was already willing to provide funding for religious schools and no one was arguing against that; church-run schools were already permitted under the program as long as they provided a secular education. The difference now is that the state is obligated to pay for church-run schools that promote misinformation under the guise of religious education.

Breyer noted the majority’s overstepping of their own previous decisions:

… this Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization… But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put… Maine does not refuse to pay tuition at private schools because of religious status or affiliation. The State only denies funding to schools that will use the money to promote religious beliefs through a religiously integrated education—an education that, in Maine’s view, is not a replacement for a civic-focused public education.

Breyer also correctly noted that this is really a gift to religions like Christianity, which can afford to build and maintain private schools, something minority religions cannot do.

The end result is that state officials will now have to decide the “adequacy or appropriateness of the schools’ religiously inspired curriculum,” creating all kinds of conflict. Even the Christian schools don’t want that kind of intrusion. Today’s decision will create more chaos instead of resolving any kind of problem.

Because of this decision, the state of Maine will basically have to pay priests to promote Christianity to students using money that should be used toward giving kids a secular education.

In a separate dissent, Justice Sonia Sotomayor added that this is the result of a slippery slope the Court began going down five years ago with Trinity Lutheran.

I warned in Trinity Lutheran, however, that the Court’s analysis could “be manipulated to call for a similar fate for lines drawn on the basis of religious use”… That fear has come to fruition: The Court now holds for the first time that “any status-use distinction” is immaterial in both “theory” and “practice”… It reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses. As a result, in just a few years, the Court has upended constitutional doctrine, shifting 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.

The ruling, she says, forces Maine to choose between giving subsidies to those who need it… and “refraining from financing religious teaching and practices.” Damned if you do. Damned if you don’t. “Nothing in the Constitution requires today’s result,” she writes.

She closes her dissent with this depressing mic drop:

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.

She’s absolutely right. The continued erosion of church/state separation will ultimately be one of the worst legacies of the Roberts Court. The conservatives have given victory after victory to religious zealots who demand taxpayer dollars to promote their religious views. It’s hard to imagine we would’ve seen similar results if the schools or programs in questions benefitted Muslims or atheists as much as they do Christians.

The reaction to Carson v Makin from church/state separation advocates

Not surprisingly, today’s decision is widely seen as an unequivocal (though predictable) disaster by those who work in the areas of church/state separation. The short-term answer may simply be to abandon school vouchers entirely. Better to fund no private schools than to fund all schools including religious ones.

That’s the position of Americans United for Separation of Church and State’s President and CEO Rachel Laser:

The court’s ultra-conservative bloc argued that refusing to tax citizens to fund religion is ‘discrimination against religion.’ It’s nothing less than gaslighting to cloak this assault on our Constitution in the language of non-discrimination. If the conservative justices were concerned with discrimination, they would not have issued this opinion because it forces taxpayers to fund two religious schools that discriminate against LGBTQ families, one barring their admission and the other forcing them to undergo ‘counseling’ and renounce their sexual orientation or gender identity, or be expelled. One school’s stated educational objective is to ‘refute the teachings of the Islamic religion with the truth of God’s word’ – and now Muslim taxpayers will be forced to fund that school.

This opinion hangs on Maine’s earlier decision to send public money to private schools. Such programs will force taxpayers to fund religious education and discrimination. It’s time to end all public funding for private schools, especially vouchers. Public funds should go to public schools.

American Atheists also condemned the ruling:

“With this decision, the Supreme Court has betrayed our nation’s founding principle that the government should not fund religion, including a majority religion like Christianity,” said Geoffrey T. Blackwell, Litigation Counsel at American Atheists. “This Court is destroying the Establishment Clause of the Constitution, which protects all Americans—especially atheists and members of minority religions.”

“Extremists are weakening our democracy,” said Nick Fish, president of American Atheists. “Calls to reform and expand the Court to limit the impact of its dangerous Christian nationalist wing will only grow louder, as the Supreme Court tries to establish what can only be described as a theocracy. Today’s decision is appalling, but it isn’t the first and it won’t be the last.”

“As Justice Sotomayor said in her dissent, ‘the Court leads us to a place where separation of church and state becomes a constitutional violation.’ Today it’s public schools; tomorrow it will be abortion. Who knows what comes next? We are embarking on dangerous, uncharted territory,” Fish added.

The Freedom From Religion Foundation said this was a direct result of “judicial activism”:

“By abandoning the concept of ‘play in the joints’ between the Establishment and Free Exercise Clauses, the Supreme Court is engaging in blatant judicial activism, supplanting Maine’s approach to public education with the court’s own views,” notes FFRF Legal Director Rebecca Markert. “Like Justice Sotomayor, I’m increasingly concerned about where the court is going next as we await another religious liberty decision this summer.”

The American Humanist Association said the decision was “only the tip of the iceberg“:

“This Supreme Court decision forces taxpayers, including the nonreligious, to fund schools that explicitly promote religion or teach through a faith-based lens,” states Legal Director and Senior Counsel, Monica Miller. “The extreme religious majority of the Supreme Court continues to dangerously undermine past precedent and further dismantle the wall of separation of church and state.”

“The outcome of this case is a blow to the right to freedom from religion, a truly American ideal guaranteed by our Constitution,” comments AHA Executive Director, Nadya Dutchin. “This decision prioritizes the constitutional rights of religious schools over Maine taxpayers, and ultimately allows the public funding of institutions that discriminate on the basis of religion. Moreover, this horrible outcome is another clear win for the far right-wing reactionary movement utilizing “school choice” as a Trojan horse for school re-segregation. We need robust public education that adheres to clear separation of church and state.

Maybe The Satanic Temple needs to work on building a school in Maine.

Either way, the critics are right to be concerned. With two more major decisions still waiting to be released, concerning prayers on a football field and abortion rights, this will likely not be the only decision this month that religious extremists have cause to celebrate. It’s the culmination of the right-wing assault on our judiciary, in which basic principles governing our country are tossed aside to benefit conservative religious groups.

Hemant Mehta is the founder of FriendlyAtheist.com, a YouTube creator, podcast co-host, and author of multiple books about atheism. He can be reached at @HemantMehta.