Constitutional Law

SCOTUS Erodes 1st Amendment by Allowing Public Money to Go to Religious Schools

The Bill of Rights begins with this first sentence of the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first phrase is known as the Establishment Clause and the second as the Free Exercise Clause.

For centuries, when these two clauses were in conflict, the Establishment Clause usually won out. Courts had routinely held that while people had a right to the free expression of religion, government support of private religious schools violated the prohibition against an “Establishment” of religion – which has long been interpreted to create a bright line requiring “the separation of Church and State”(a phrase Thomas Jefferson invented). When Free Expression won out , it was usually because the underlying entitlement to government benefits was because of the person’s exercise of religion. See, Sherbert v. Verner, 374 U. S. 398 (1963)(Seventh Day Adventist entitled to unemployment benefits even though he was fired for refusing to work on Saturday, his Sabbath); Thomas v. Review Bd. of Ind. Employment Security Div., 450 U. S. 707 (1981)(Jehovah’s Witness who refused to participate in the production of armaments cannot be denied benefits).

SCOTUS today decided that the Free Expression Clause trumps (no pun intended) the Establishment Clause. They reduced and weakened the separation of Church and State by endorsing more public funding of religious entities. No surprise, it was 6-3, with the conservative justices siding with two Christian families who challenged a Maine tuition assistance program that excluded private religious schools. The decision built upon the court’s 2020 ruling in a Montana case that paved the way for more taxpayer dollars to flow to religious schools. The court’s 2020 Montana ruling, involving an educational tax credit, prevented states from disqualifying schools from public aid based on their religious status or affiliation. This ruling goes further – a lot further. This follows a pattern by the right to bring challenges to SCOTUS that open a narrow crack in long held doctrine that they want to change, and then bring on the big one that drives a truck through it entirely. In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. _ (2017), SCOTUS considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The
State denied such grants to any applicant owned or controlled by a church, sect, or other religious entity. When Trinity Lutheran applied for a grant to resurface its gravel playground, the State denied funding on the ground that the Center was operated by the Church. The Court held that this violated the Free Exercise Clause as the applicant was being denied merely because they were a Church. Then in 2020, the Court decided Espinoza v. Montana Department of Revenue, 591 U. S. _ (2020). Espinoza held that a provision of the Montana Constitution barring government aid
to any school “controlled in whole or in part by any church,
sect, or denomination,” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.

In Trinity, the money was specifically for providing cushioning to playgrounds, which had nothing to do with the school’s religious teachings. In Espinoza, Montana had barred schools from receiving funding “simply based on their religious identity — a status that in and of itself does not determine how a school would use the funds.”

But here, the facts are very different: Maine’s program provides public funds for tuition at private high schools of a family’s choice in sparsely populated areas of the northeastern state lacking public secondary schools. Maine was basically trying to expand its public school system in areas that it could not afford to build in. Since money was being given directly to the schools to fund education in place of public schools, Maine required eligible schools to be “nonsectarian,” excluding those promoting a particular religion and presenting material “through the lens of that faith.”

Chief Justice John Roberts wrote the opinion writing that Maine’s program “operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” Well, no. It was on the basis of not having tax dollars support one religious belief over another by providing direct money to the school. Parents would remain free to exercise their religion as they see fit. But Roberts stated that the Free Exercise Clause is more important than the Establishment Clause writing: Roberts wrote, “The State pays tuition for certain students at private schools so long as the schools are not religious. That is discrimination against religion. 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.”

The plaintiffs sought taxpayer dollars to send their children to two Christian schools that integrate religion into their classrooms and maintain policies against gay and transgender students and staff. The two schools describe themselves as seeking to instill a “Biblical worldview” in students, according to court records. They refuse to hire gay teachers or admit gay and transgender students. One of them, Bangor Christian Schools, teaches that a “husband is the leader of the household” and includes a class in which students learn to “refute the teachings of the Islamic religion with the truth of God’s Word.”

Roberts said the court previously decided that states need not subsidize private education, but because Maine chose to do so it cannot disqualify religious schools. Maine has other options, Roberts added, including expanding its public school system. This is a way to skirt the issue by arguing that once a State chooses to subsidize any private education, they must subsidize all private education. That would be okay were it not for the Establishment Clause and the Court’s long history of clearly favoring the separation of Church and State over an individual’s right to free expression. Sure, Maine can spend millions building public schools in remote areas but not if doing so would require the State to support religious discriminatory practices. Were the Klan to build a school in rural Maine and exclude Blacks, Jews, Catholics and others, would the Court have forced the State to pay for that?

But the Court has now tilted to the far right and towards Christian nationalism. Its conservative justices have been highly receptive to claims by plaintiffs – often conservative Christians – of government regulations toward religion including in education. The far right also sees public education as the purveyor of all evil – falsely arguing that public schools indoctrinate students towards homosexuality and falsely claiming that elementary schools – even kindergartens – are teaching Critical Race Theory. Their promotion of charter schools and “school vouchers ” is designed to decimate public schools and therefore the influence they see public schools and their teachers’ unions having on domestic policy.

To be clear this ruling now allows religious schools to discriminate on the taxpayer’s dime. The irony of the ruling was not lost on Justice Sotomayor who wrote yet another scathing dissent:

“Today, the court leads us to a place where separation of church and state becomes a constitutional violation,” she wrote.

Maine Attorney General Aaron Frey called it “disturbing that the Supreme Court found that parents also have the right to force the public to pay for an education that is fundamentally at odds with values we hold dear.” Frey said Maine’s law may need changes to “ensure that public money is not used to promote discrimination, intolerance and bigotry.”

The right also regularly proclaim another Big Lie: that their beloved Founding Fathers intended to create “A Christian Nation.” GOP reps and Senators alike have recently touted Christian Nationalism as central to their political beliefs and have made this claim about the Founding Fathers in support of “shaping the country through Christianity.” But facts don’t lie. And the Founding Fathers crafted the Establishment Clause to make sure that we were a secular nation.

“Wait, what just happened?”

 The Founding Fathers, while Christian, were Enlightenment thinkers and rationalists and deep lovers of science. Many followed a “deist” approach to Christianity believing that while God set the universe into motion, God did not thereafter get involved in human affairs.

John Adams and John Quincy Adams were Unitarians (did not believe in the Trinity). Thomas Jefferson was denounced as an atheist after he and James Madison outlined the Virginia Statue of Religious Freedom (see below).

They were skeptical of the Christian religion, seeing as Europe had grappled with religious freedom for so long. They clearly wished to mold a new government that allowed a separation from the possibility of such turmoil. Jefferson introduced the Virginia Statute of Religious Freedom in 1779, which became law in 1786. It separated Virginia government from any established church and asserted that the religious opinions of men were not the business of the government. The Treaty of Tripoli, one of the United States’ first treaty agreements, also reinforced this idea in its Article 11, which reads, “the Government of the United States of America is not, in any sense, founded on the Christian religion.”

Could it be any clearer? Well apparently not to SCOTUS.

Here is where you can find the ruling 

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