The Supreme Court will soon hear a case involving religious freedom and church/state separation… which almost certainly means the Supreme Court will destroy another brick in the wall of separation.
Now, several groups that promote church/state separation and advocate atheism have filed amicus briefs hoping to persuade the justices to respect the Constitution.
Here’s the backstory: Students in Maine are guaranteed free public education until they graduate high school. But in some rural parts of the state, where there are no local schools, students have the option of attending a private school on the state’s dime (assuming they’re accepted into those schools). State law, however, mandates that those schools must be secular. Taxpayer money can’t be used to pay tuition at a religious school. Makes perfect sense.
But a few years ago, three sets of families represented by the (Libertarian) Institute for Justice and the (conservative) First Liberty Institute sued the state claiming it was illegal for Maine to deny funding to the Christian schools the students wanted to attend. Their schools met every condition laid out by the state for a tuition reimbursement… except for the religion part. (Amy and Dave Carson are two of the parents involved in the lawsuit, and Maine’s Commissioner of Education is Pender Makin, so the case is called Carson v. Makin.)
The Christians lost an earlier version of this case, but in 2020, the Supreme Court threw them an unexpected lifeline. The conservative majority decided a case called Espinoza v. Montana Department of Revenue in which they decided that taxpayer funding could subsidize private religious education. If states offered funding for private schools at all, the justices ruled, they may also have to extend that offer to private religious schools. (It depended on the kind of funding program the state offered.)
With that in mind, the conservatives sued again… and lost. Then they appealed… and lost. In fact, the U.S. First District Court of Appeals didn’t buy their argument at all. They said the schools those families wanted to attend discriminated against LGBTQ people and required teachers to accept Jesus. One school even made employees sign a statement saying “God recognize[s] homosexuals and other deviants as perverted.” In other words, these weren’t just regular schools that happened to be run by churches; these were schools that existed to promote a certain ideology.
One of the judges even said the Maine program was acceptable because it only denied subsidies if the school’s educational program was explicitly religious. Judge David Barron wrote, “Sectarian schools are denied funds not because of who they are but because of what they would do with the money — use it to further the religious purposes of inculcation and proselytization.”
No wonder the conservatives asked the U.S. Supreme Court to overrule that decision. The Court agreed to hear the case back in July. It’s possible that a decision favorable to the Christian schools could apply to other states, too. Not just Maine.
That’s where the various church/state groups enter the picture. This week was the deadline for them to file their arguments as to why the earlier rulings should be upheld.
Attorneys Richard B. Katskee and Alex J. Luchenitser of Americans United for Separation of Church and State, Monica L. Miller of the American Humanist Association, and a coalition of other allies filed a brief saying that overturning Maine’s law would violate established legal precedent and that nothing in the Constitution requires public funding for religious education.
Maine’s program here restricts funding based on religious use, not status; it is designed to extend public rather than private education; and it is funded by mandatory taxation rather than by tax credits. Petitioners are thus seeking a substantial expansion of Espinoza that would for the first time require taxpayers to support a specifically religious activity — religious instruction.
This unwarranted expansion of Espinoza would be contrary to the Court’s precedent, which has long permitted states to decline to fund distinctly religious activities… And it would contradict the original meaning and purposes of the Free Exercise Clause. Historical evidence, from the founding era through the adoption of the Fourteenth Amendment, makes clear that the Free Exercise Clause does not require states to fund religious instruction — an activity central to the maintenance and growth of ministries — on an equal basis with secular education.
Attorneys Alison M. Gill and Geoffrey T. Blackwell of American Atheists filed their own brief arguing that Maine’s tuition program is already neutral toward religion, that the arguments for overturning the law “endorse a longstanding hostility toward atheistic belief systems,” and the revised conception of free exercise being promoted here would harm atheist families.
Every Maine resident has a choice between a sectarian education that endorses or inculcates their belief system or a secular education free of bias toward any such system. Petitioners believe they are discriminated against by such a system (though they do not identify anyone whom the state treats differently) because they contend that “secular” schools actually take a religious position — that they are “atheistic.” That is not what “secular” means and the education Maine strives to provide is not “atheistic” but religiously neutral.
If the Court were to adopt the Petitioners’ argument and require Maine to undermine its neutral system of education, it would inflict a serious and quantifiable harm on the families of Maine that hold atheistic or theistic-minority beliefs. Religious bias in the education system is correlated to a startling level of discrimination, harassment, and stigmatization of atheist young people. That treatment leads many to conceal their beliefs, leading in turn to increased depression, difficulty bonding with peers, social isolation, and decreased psychological well-being.
This Court should recognize the Petitioners’ fallacious arguments for what they are — sophistry and word games intended to make a neutral position seem polarized — and avoid needlessly inflicting harm on those who do not share the majority’s religious beliefs.
Attorneys Patrick Elliott and Samuel T. Grover of the Freedom From Religion Foundation, along with the Center for Inquiry, also weighed in with a separate brief arguing that the First Amendment ensures “that taxpayers are not compelled to subsidize religious teaching or worship” and that the Constitution’s “no aid” principle “avoids government entanglement” with both religious education and the taxpayer-funded oversight that would be necessary if we gave religious schools public money.
This most basic religious liberty protection has been drowned out in this case by three families of Maine Christians — who are members of the state’s majority religion — claiming discrimination. Their attempts to secure government funding to subsidize religious education are a direct assault on the very right to religious liberty they claim to support. The constitutional prohibition on states taxing citizens for the benefit of religion, directly or indirectly, guarantees religious liberty for all…
To open up Maine’s school funding scheme to religiously-segregated schools would imperil, not protect, religious liberty. The Petitioners argue otherwise because they have failed to correctly identify who possesses that right. The religious liberty at issue here does not lie with Christian parents or religious schools, for they remain free to operate and attend private religious schools absent government aid. The rights jeopardized in this case lie with every Maine citizen and taxpayer.
There’s no good reason for the Supreme Court to overturn Maine’s law. But there’s also no reason to expect the conservative majority on the Court to follow logic or the Constitution. You don’t have to be a legal scholar to understand we’re in the midst of an erosion of the wall between church and state. It’s only a question of how much the wall will crumble.
If the Court upholds the earlier decisions, though, these briefs will likely be among the main reasons why.
(Image via Shutterstock. Large portions of this article were published earlier)