In a 6-3 decision issued today, the extremist supermajority on the U.S. Supreme Court has dealt another major blow to true religious liberty in its judgment on the Carson v. Makin school voucher case.
Outgoing Justice Stephen Breyer, whose resignation is effective before the next term, wrote the dissent, signed by Justices Elena Kagan and, excepting one section, by Sonia Sotomayor, who wrote her own dissent as well. Breyer warns that the majority is effectively abandoning longstanding doctrine, while Sotomayor fears that it is rejecting the principle of separation between state and church altogether.
The court has gone contrary to the country’s foundational constitutional principles in striking down Maine’s “no aid” law, a provision meant to ensure that no citizen is forced to fund religious indoctrination at private religious schools, or any religious education that conflicts with their personal beliefs. The Supreme Court’s judicial activism and faulty reasoning will undoubtedly lead to many additional violations and litigation in other states as Christian nationalists seek to fund private Christian education with taxpayer money.
The plaintiffs want to use state money in this instance to send their children to Christian schools that provide religious instruction. One of the schools in question, Bangor Christian School, has a mission of instilling a biblical worldview that is “completely intertwined” with the curriculum and identifies the bible as its “final authority in all matters.” The First U.S. Circuit Court of Appeals concluded in its judgment two years ago that the “nonsectarian” requirement in Maine’s tuition assistance program did not exclude religious schools based on their religious status, but rather protected the state’s interest in only supporting nonreligious education.
However, the majority opinion, written by Justice John Roberts, asserts that Maine’s law impermissibly infringes on the rights of religious schools: “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” Roberts added, “A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
This claim misconstrues the real religious freedom at stake in the case, which is the right of every taxpayer to be free from funding religious indoctrination, and the right of every student in Maine to an education free from religiously motivated discrimination. Shockingly, the Supreme Court’s opinion explicitly acknowledges that private religious schools are very different from the public school education that Maine’s program is intended to offer. Roberts notes, “private schools are different by definition because they do not have to accept all students. Public schools generally do,” and moreover, “the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools.”
The two religious schools acting as plaintiffs in the case “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,” according to Maine’s brief to the Supreme Court. But rather than observing that these differences warrant Maine’s decision to limit its funding to schools that do not indoctrinate students, the court reasons that giving money to any private school means the state must fund religious education as well.
The Freedom From Religion Foundation filed a brief (prepared by FFRF Constitutional Attorney Sam Grover) with the Supreme Court siding with the state of Maine in its refusal to use taxpayer money to fund religious education. As FFRF’s brief points out, Maine’s original purpose in passing its no aid law is unimpeachable; the principle itself dates back to the Founding era. Striking down Maine’s law has the immediate, disastrous effect of compromising the religious freedom of every citizen in the state. “The Supreme Court could not have gotten this one more wrong in its results-oriented pursuit of solidifying Christian favoritism,” Grover observes.
Breyer’s dissent notes that the Free Exercise clause does not require Maine to fund schools that will use public money to promote religion, and that longstanding doctrine, which this decision is overthrowing, has permitted states to adopt constitutional language that is stricter than the federal Establishment Clause.
The heart of Breyer’s dissent is this paragraph:
"In my view, Maine’s nonsectarian requirement is also constitutional because it supports, rather than undermines, the Religion Clauses’ goal of avoiding religious strife. Forcing Maine to fund schools that provide the sort of religiously integrated education offered by Bangor Christian and Temple Academy creates a similar potential for religious strife as that raised by promoting religion in public schools. It may appear to some that the State favors a particular religion over others, or favors religion over nonreligion. Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money for religious education. Taxpayers may be upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree. And parents in school districts that have a public secondary school may feel indignant that only some families in the State—those families in the more rural districts without public schools—have the opportunity to give their children a Maine-funded religious education."
“As Breyer points out in his dissent, the Supreme Court is increasingly ignoring the Establishment Clause of the First Amendment — which was adopted by the Framers to avoid the ‘anguish, hardship and bitter strife’ that results from the union of state and church — and concentrating only on the Free Exercise Clause,” comments Annie Laurie Gaylor, FFRF co-president.
“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.”
In a blistering dissent, Sotomayor writes: “What a difference five years makes. In 2017, 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.”
The Freedom From Religion Foundation — a national educational nonprofit organization based in Madison, Wis. — is the largest association of freethinkers in the United States, representing over 36,000 atheists, agnostics and other nonreligious Americans, including hundreds of members in Maine. It has several local and regional chapters across the country, including a Maine chapter.