On Tuesday, the Supreme Court took another major step toward tearing down the wall separating church and state by ruling that Maine is constitutionally required to subsidize religious education when it pays for private secular education. The implications of this decision for government financial support for religion are enormous.
The First Amendment states that “Congress shall make no laws concerning the establishment of a religion or prohibiting its free exercise.” In 1947, the Supreme Court ruled that the ban on establishing a religion extended to the actions of state and local governments. All nine judges in this case agreed that this provision can best be understood through Thomas Jefferson’s words that there should be a wall separating church and state.
For decades, the court has applied this principle by limiting the state’s ability to provide financial support for religious activities, including religious schools. This followed James Madison’s view that it is disgusting to tax people to support foreign religions. The central idea is that government and its use of funds should be secular.
But now the law has changed drastically, and the Supreme Court not only allows aid to religious schools, but says it’s required by the constitution.
Tuesday’s case, Carson v. Makin, involved a Maine law that applies to areas too rural to support public school systems. In these areas, school administrations provide funds to parents to send their children to private schools. The Maine demands that the money be used in secular, not sectarian schools. Meng says his goal is to provide every student with a free, non-religious education.
Two families who wanted to send their children to religious schools defied Maine law, arguing that refusing to subsidize religious education violates their free practice of religion. The court’s decision 6-3, divided on ideological grounds, ruled in favor of the applicants, holding that the lack of state fees for religious education while it pays for non-religious education violates the Constitution.
This majority opinion, written by Chief Justice John G. Roberts, completely ignores the First Amendment’s prohibition against establishing a religion. As Judge Stephen Breyer pointed out in his dissent, “The Article of Establishment forbids the State from paying for the practice of religion itself. And state neutrality with regard to the teaching of religious practice lies at the heart of this clause.”
Five years ago, never in American history did a court decide that the free exercise of religion required the government to subsidize religion. But in the 2017 Trinity Lutheran v. A Comer court ruled that the state of Missouri violated religious freedom when it subsidized playground renovations in public schools and secular private schools, but not in religious schools. Roberts, who also wrote the opinion, included a footnote emphasizing that the case only concerned the issue of allocating money for “renovating the playground” and not for other “religious purposes”.
Now the court is tearing down the separation wall, already damaged by the Lutheran Trinity cause, by saying that every time the government subsidizes private education, it is constitutionally required to pay for religious education.
This decision has huge implications for many areas of public policy. Throughout the country, including California, the public school system pays for charter schools. The law has always stated that publicly funded charter schools must be secular. But now, with this decision, there is a strong argument that refusing to pay for religious charter schools violates the free practice of religion.
There is no stopping point and no reason why this approach would be limited to a school context. If the government allocates funds for the preservation of historic buildings, it will be obliged to subsidize the maintenance of churches, synagogues and mosques. If the government pays for alcohol or drug rehabilitation programs, it will have to subsidize religious programs.
There has long been debate about whether the government can even provide such assistance to a religious group or whether its decision to do so would be an unacceptable establishment of religion. Now, however, the conservative majority in the court says the subsidy for religion is constitutionally mandated. In fact, this is the cutting of the clause on the establishment of the Constitution.
Shortly before leaving the Supreme Court, former Justice Sandra Day O’Connor remarked: “Those who want to redefine the boundaries between church and state must therefore answer the difficult question of why we should change a system that has served us so well to a system that serves us so well? served others so badly? Unfortunately, Roberts and the Conservatives do not provide an answer to this question.
Erwin Chemerinsky is dean of the UC Berkeley School of Law. © 2022 Los Angeles Times. Distributed by content agency Tribune.