Supreme Court Decides the Free Exercise of Religion Clause Means Exactly That

Joe Raymond

Held: 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.


The case was 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?”

Because of the low population density in some school districts, Maine has an education program that permits the State to pay tuition assistance payments to parents who wish to send their children to private schools. Originally, the option of using religious schools was available under the Maine program. 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. Kurtzman decision, the legislature restricted funding to secular schools. In 2018, two families sued the Maine Department of Education commissioner, alleging discrimination under the First Amendment.

Under 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, the First Circuit panel that heard this case on appeal tied itself in knots, implausibly separating Carson from Espinoza and other cases to arrive at a progressive decision. Oddly enough, one of the panel members was retired Supreme Court Justice David Souter, which probably explains the stupid baked into 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, the decision was announced. The majority opinion is below.

Carson vs. Makin, Majority Opinion by streiff on Scribd

The dissenting opinions by Breyer and Sotomayor are below.

Carson vs. Makin, Dissent by streiff on 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). My colleague Joe Cunningham covers some of the reactions today, including some strange stuff from the dissenting opinions, 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.


The establishment of a church requires at least four things. First, it requires a single, like in one, church to be established. Second, the established church must perform governmental or quasi-governmental activities. Third, membership in that church is required to participate in some aspects of political life. Fourth, the church is subsidized by the action of the state. What the Founders were reacting to was the role of the Anglican Church in the Colonies. The Anglican Church supported the indigent, found homes for orphans, and provided the official roll of marriages and deaths. 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. You had to be a member of the Anglican Church to hold office. Tithing to the church was enforced by civil authority. That is what “establishment” looks like, and you can see why such an arrangement violates conscience if your denomination is not the preferred one. That Breyer would end his career spouting such a lie is little short of incredible.

This is the Wise Latina’s  opinion:

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.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). 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.


That argument is basically the one used by the legal Jack Russell at Slate Mark Joseph Stern:

Or the schizoid blogger at the Washington Post:

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. That is all that it is. It is not found in the Constitution. It is not found 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.


Where she is dishonest is framing the issue as one of the states being forced to fund 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. So the education is the same. 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 outlined a hypothetical involving two religious schools, only one of which is obligated by its religion to educate students in its faith. When Taub told Roberts that the school that educated students in its faith would not receive funding under the Maine program, while the other would, Roberts concluded that funding for the schools hinged on the beliefs of the two different religions. “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. When Taub seemed to indicate that such a school might be eligible to receive funds under the Maine program, Alito bridled. 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.”


A problem, indeed.

As important as this case is, it is only a baby step towards unraveling the state monopoly on education. The schools eligible under the state program have to be accredited, which means they are, in effect, government licensed. Homeschoolers and home school pods are not eligible. While this loosens the reins of government control over education some, it doesn’t loosen them enough.




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