[guest post by JVW]
The First Amendment never uses the term “separation of church and state.” It instead contains two religion clauses: one that prevents Congress (or, since the 14th Amendment, the states) from passing any law establishing a state church or “respecting” such an establishment; and the other protecting the free exercise of religion from government prohibitions. A myth has grown up around Thomas Jefferson’s 1802 phrase “wall of separation” that treats religion, not as a thing the government cannot mandate or regulate, but as a kind of kryptonite the government must avoid any contact with even if it means separation of religious people and institutions from equal participation in what the state provides. That is not what the establishment clause was understood to mean in 1791, and today, the Supreme Court went further: It concluded that discrimination of that sort violates the free-exercise clause.
This morning’s 6–3 Supreme Court decision in Carson v. Makin, written by Chief Justice John Roberts, is a huge victory for the freedom of religious parents to educate their children in the school of their choice on the same terms as non-religious parents. Maine long ago established a school-choice program in order to resolve the tension between its state constitutional requirement of a publicly funded education and the reality that much of Maine is too rural to support a school in every town: As Roberts noted, “of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.”
So, the state established a tuition-assistance program — basically, tuition vouchers — for parents in districts without a school of their own. They could use those vouchers at a secular school, or a religious school — until 1981, when Maine passed a statute barring any “sectarian” school from the program. It did so explicitly in response to the Supreme Court’s “separation of church and state” line of cases that began in the late 1940s and reached a crescendo with 1971’s Lemon v. Kurtzman. The 1981 statute required that students attend “a nonsectarian school in accordance with the First Amendment of the United States Constitution” and “was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment.”
Blaine Amendments are named for former Speaker of the House and Senator (and 1884 GOP Presidential nominee) James G. Blaine of Maine, who while serving as Speaker in 1875 proposed a Constitutional Amendment which would have prohibited individual states from establishing a state religion and from using public dollars to fund religious schools. The proposed Amendment did not garner enough votes in the Senate for passage, but several states began the process of writing their own constitutional amendments to curtail the influence of religion and to deny public funding for parochial schools. Mr. McLaughlin argues that Blaine Amendments had been effectively hollowed out by the 2020 Court decision in Espinoza vs. Montana Department of Revenue, but though I defer to his more learned legal analysis it would seem to me that today’s ruling, in which the Court affirmed that a state legislature or the public via referendum can choose to allow public money to be used as tuition vouchers to religious schools, emphatically serves as the final nail in the coffin for Blaine Amendments.
Unsurprisingly, the Court’s left can’t let go of the “separation of Church and State nonsense that they have been pushing ever since Jefferson was electing to sleep in on Sunday mornings. As Dan McLaughlin reports:
Nonetheless, the myth of a “wall of separation” that requires discrimination against religious schooling persists, even among people who ought to know better. Justice Sonia Sotomayor complained in her dissent today:
This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. . . . In 2017, I feared that the Court was leading 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.
Well, yes: Both “separation of church and state” and “wall of separation” are, in fact, slogans rather than constitutional commitments. Allowing students to take state aid to a religious school on the same terms as a secular school does not establish a church, any more than allowing them to use Pell Grants at a religious college or, for that matter, allowing people to buy Bibles with their Social Security checks, establishes a state church. As Roberts summarized: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”
This decision doesn’t require states to fund school choice programs or provide funding to religious schools, but it does decree that a state can no longer discriminate against religious schools if the state provides funding to non-religious private schools. And now at long last the matter is in the hands of the legislature and the public, rather than being preempted by bigoted ideas from nearly a century and a half ago. This decision also undermines the Court’s decision in Lemon, in which the Burger Court attempted to place strict limits on the degree to which government could provide support to religious schools and the students who attend them. Mr. McLaughlin points out that it’s notable that neither today’s majority opinion nor the dissents cite the Lemon case, hopefully leaving it a dead issue from here on in.