“Holden: Maine’s “nonsectarian” requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.”
With that sentence, a six-justice majority led by Chief Justice John Roberts mostly demolished one of the last vestiges of anti-Catholic bigotry, the Blaine Amendments, and articulated a crystal clear principle that government can’t penalize parents who prefer a religious education to a secular-religious education for their children.
This was the case Carson vs. Makin and the question it sought to answer was, “Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction?”
Maine offers tuition assistance to families who want to send their children private schools because of its low population density. The Maine program originally offered the possibility of secular schools. But in 1980, the State Attorney General, a Republican, advised the State Legislature that sending money to religious schools violated the so-called “separation of church and state.” Based on that advice driven by the horrendous Lemon v. KurtzmanThe legislature also restricted funding for secular schools as a result of the decision. Two families filed a lawsuit against the Maine Department of Education Commissioner in 2018 alleging discrimination under Section 1 of the Constitution.
According to the Supreme Court Decision Espinoza vs. Montana Department of Revenue (see School Choice Scores Major SCOTUS Win as John Roberts Finally Finds a Conservative Issue He Supports), a case with facts nearly identical to that in Carson vs. Makin, the cause should’ve been a slam-dunk. Instead, however, the First Circuit panel which heard this case in appeal was knotted up, making it impossible to seperate. CarsonStarting at Espinozato reach a positive decision in other cases. Strangely, David Souter (retired Supreme Court Justice) was one of the panel members. This probably accounts for the absurdity in the decision.
It was obvious that Maine had an uphill slog during the oral arguments (see the bloodletting at Supreme Court Seems Ready to Nuke Maine’s Law Discriminating Against Religious Schools)
Tuesday saw the announcement. Below is the majority opinion.
Carson vs. Makin by Scribd
Below are the dissenting views of Breyer and Sotomayor.
Carson vs. Makin. Dissent by Scribd
As I pointed out at the time, the left was obviously going to go batsh** if the decision went the way it did (read The Left Goes Nuts as the Supreme Court Seems to Signal That Their Monopoly on Propagandizing Kids Is at an End). Joe Cunningham, my colleague, covers the reaction today. He also includes strange things from the opposing views in “The Left is Really Losing it After Supreme Court Sides with Religious Schools.”
I don’t have time to go into all the crazy; I just want to point out some notable contributions toward building a mountain of lies to try to bury the truth about Carson vs. Makin. Both Breyer and Sotomayor are openly untruthful about what the “anti-establishment” clause of the First Amendment means. This is Breyer’s take:
The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” 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.
There are at most four requirements for the establishment of a church. To be established, a church must have a single church. The church established must also perform quasi-governmental and government activities. To participate in certain aspects of politics, thirdly, you must be a member. The fourth is that the church receives subsidies from the state. The Anglican church in the Colonies played a significant role in what the Founders wanted to address. Anglican churches supported the poor, provided homes for orphans and maintained the official register of marriages and death. The Anglican vestry “processioned” property lines each year; that is, a church representative and the relevant landowners rode the property lines to ensure everyone agreed on boundaries. To hold office, you had to be an Anglican Church member. The civil authorities enforced the tithing requirement for the church. That is what “establishment” looks like, and you can see why such an arrangement violates conscience if your denomination is not the preferred one. It is amazing that Breyer would choose to end his career by telling such lies.
This is the Wise Latina’s opinion:
Five years is a big difference. In 2017, I feared that the Court was “lead[ing]Contact us . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). The Court today leads us to the point where seperation of church and State is a violation of constitutional law. A State can’t offer subsidy to citizens without having to pay for religious exercise. Any state that places greater importance on its antiestablishment history than the Court will need to cut back its support to citizens.
This is the argument used by Slate Mark Joseph Stern, the legal Jack Russell.
Carson v. Makin has major implications for the state’s funding of religious activities. A conservative majority believes that Maine’s First Amendment requires taxpayers to pay explicitly for religious education. It is quite a radical belief. https://t.co/saVbopQJyq
— Mark Joseph Stern (@mjs_DC) June 21, 2022
Oder the Washington Post’s schizoid blogger:
Christian Nationalists believe that religious education should be funded by the state. Carson v. Makin.
— Jennifer ‘I stand with Ukraine’ Rubin 🇺🇦🇺🇦 (@JRubinBlogger) June 21, 2022
For the record, if this decision actually forwarded the cause of Christian Nationalism, I’d be running down the street while shooting off fireworks.
Sotomayor is correct that “separation of church and state” is a slogan. It is that simple. It isn’t in the Constitution. It was not in the original debates. It is a bullsh** argument. To the degree that Jefferson envisioned such a principle, everything about the man and the time tells you that what he was against was the state interjecting itself into the affairs of the church to avoid the very “establishment’ problem Jefferson was familiar with as a Virginian.
What she does not disclose is that she frames the problem as one of many states forced to finance religion. That’s wrong. What the decision says is that if the state decides to provide tuition assistance to children attending private schools, it can’t discriminate between secular and religious schools. Furthermore, Maine requires all schools receiving assistance to be accredited by the same body accrediting Maine’s public schools. The education system is identical. In the oral arguments, Justice Alito pinned Maine’s Deputy Attorney General on the question of Maine objecting to religion or religious doctrine.
But even beyond the premise of Maine’s argument, several of the court’s conservative justices made comments and asked questions indicating that they regarded the state’s exclusion of schools that teach religion as unconstitutional discrimination. Chief Justice John Roberts presented a scenario involving two religious schools. Only one is required by the religion of its students to teach them in their faith. Roberts was informed by Taub that the Maine school which educates students according to its faith will not get funding, and the Maine school that does, however, receives funding. Roberts then concluded the funding of these schools depended on the religious beliefs of each. “And we have said,” he stressed, “that is the most basic violation of the” Constitution – “for the government to draw distinctions between religions based on their doctrines.”
Alito described a different religious school with religious beliefs much like the Unitarian Universalist Church that are infused into the school community – for example, that all people are created equally. Alito was not impressed when Taub indicated that such a school could be eligible for funding under the Maine program. Unless you can say that you would treat the Unitarian Universalist school the same way as a Catholic or Orthodox Jewish school, Alito cautioned Taub, “I think you’ve got a problem.”
Problem indeed.
While this is a significant case, it’s only the first step to resolving the state’s education monopoly. Schools that are eligible for the state program must be accredited. This means that they have been licensed by government. Eligible are homeschoolers, and pods of home school students. While this loosens the reins of government control over education some, it doesn’t loosen them enough.
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