The Hammer That Breaks The Church State Wall Has Hit Public Education Once Again. What Parts Of Our School System Will It Bring Down?

Say this for John Roberts; He writes the arguments that are clear and straightforward, in language that even non-lawyers can follow. In Carson v. Makinhe lays out the exact same reasoning that pleased conservative fans in the religion Trinity Lutheran and Espinoza, Taking us one step further down the road to a country where taxpayers are required to fund private religious activities.

In particular, we have repeatedly held that a state violates the Free Exercise Clause when it excludes religious observers from other available public benefits.

And as that applies in this case regarding Maine’s system of funding education for students whose town has no school of its own:

The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion.

Therefore, the court’s majority declares that taxpayers must fund private religious schools.

This flips the First Amendment’s handling of religion over its head, but it simply follows the precedent that this court set when it decided Trinity Lutheran v. ComerGeneral Chat Chat Lounge At the time of that decision, Noah Feldman, professor of law at Harvard University and former clerk to US Supreme Court Justice David Souter, wrote:

This is the first time the court has used the free exercise clause of the Constitution to require direct transfer of taxpayers’ money to a church. In other words, the free exercise clause has trumped the establishment clause, which was created precisely to stop government money going to religious purposes.

Or, as Justice Sontomayor says in his dissent:

After assuming an Establishment Clause violation, the Court revolutionized Free Exercise Doctrine by equating a State’s decision not to fund a religious organization with presumptively unconstitutional discrimination on the basis of religious status.

The Supreme Court has gone there in steps; Trinity Found that public funds can be used by a church for general secular purposes like a parking lot, then Espinoza Found that public funds can be spent on a private school that just happens to be run by a church. With Makin, Which involves two schools that exclude policy from LGBTQ people as well as those not “born again,” we arrive at the conclusion that taxpayer dollars can be used to fund very religious, openly discriminatory schools.

The schools named in the suit said they would not accept taxpayer funding if those dollars would require them to stop discriminating. And in fact, Maine got ahead of the Supreme Court passing an amendment to the state’s anti-discrimination law expressly forbidding certain types of discrimination by any school that accepts public funds. But opponents of the church-state wall have been working on that issue as well.

The court is also expected to rule on this Kennedy v. Bremerton School District, in which a high school coach is suing the right to lead students while performing their duties as a district employee. Should the court decide in his favor, we will be moving towards a world in which taxpayers must fund private religious education, but the state cannot exercise any oversight of overtly religious and discriminatory behavior.

The through-line court’s free exercise decision is that the religion of free exercise is not possible without taxpayer subsidy. At this point, the wall between church and state is beginning to look less like a wall and more like a game of later stages of Jenga. What comes next?

In his dissent, Justice Breyer points out some possible consequences:

What happens once “may” become “must”? Does that change mean that a school district that pays for public schools must pay attention to parents who want to send their children to religious schools? Does it mean that school districts that use vouchers for charter schools must pay taxes to parents who wish their children a religious education? What other social benefits are there for the State’s provision — that means, under the majority’s interpretation of the Free Exercise Clause — that the State must pay the secular benefit of the religious opposition for the parents?

That first question is a big one. If the state funds education through public schools, is it now discriminatory for them to also fund private religious schools?

Other questions will arise before that one. CU Boulder Professor Kevin Welner, who directs the National Education Policy Center, points out that the ruling does open the door to religious charter schools, as well as setting up what he calls “the outsourcing of discrimination.” Equally troubling, it sets the stage for the government picking winners and losers among various religious schools.

If lack of state funding is, as Roberts asserts, a religion against discrimination, who exactly will decide the conditions of religious equity in the eyes of the state? As Breyer points out, “Members of minority religions, with very few adherents to established schools, may see the disadvantage in the fact that only those belonging to more popular religions can use state money for religious education.” How is the state expected to resolve such “discrimination”?

Justice Sontomayor offers the last word on this new shift:

In 2017, I feared that the court was “lead[ing] us. General Chat Chat Lounge General Chat Chat Lounge 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.

The notion that it denies discrimination for religious schools is a share of taxpayer dollars that just keeps busting holes in the wall separating church and state for education. Time will tell where it will land next.

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