Supreme Court Opens Floodgates To Taxpayer-Funded Religious Schools

// Well, the Establishment Clause had a good run.

This morning, the Supreme Court stretched the Free Exercise Clause to swallow the Establishment Clause altogether in Carson v. Makin. Before today, the Court already hamstrung the Establishment Clause by ruling that government programs that funnel funds to religious entities don’t necessarily violate the First Amendment, if citizens simply had the choice of sending those funds to religious institutions. Now, for the first time, the Court ruled that government programs must send money to organized religion if a citizen wants to.

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You know, that deeply held religious tenet to… have your neighbors pay for your kid to go to religious school.

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As Justice Breyer wrote in dissent:

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.

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Textualists just ignoring clauses willy-nilly? Man is he going to be disappointed when the Bruen opinion comes out!

But the decision is also a lesson in this Supreme Court’s new conception of “precedent.” When recent past opinions opened the door to government funding of religious schooling, some folks genuinely believed that carefully constructed carveout language cast in stone the outer bound of these new readings of the Constitution. That’s just not how this Court works. If any opinion stops short of a maximalist position, the extreme read is precedent and the limitations are dicta. Full stop.

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Superficially, the Carson opinion deals with a quirky Maine law with no applicability to the rest of the country. But that’s not how it plays out when the Supreme Court rewrites the Bill of Rights — welcome to the new normal of taxpayer-funded religious schools.

Maine boasts some secluded rural areas where it’s just not financially feasible to build and maintain a public school. However, the state also enshrines a right to publicly funded education. To square these circumstances, the state provides money to parents to send their kids to private schools. In order to comply with the First Amendment, the state limited these public funds to use at non-sectarian private schools.

You could try to explain this away by saying it’s all Maine’s fault for having a private school tuition support program in the first place.

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But this proves too much, because if simply not offering the program is a viable way out of a Free Exercise problem, then it can’t really be about free exercise. If not using taxpayer dollars on religious schools hampers someone’s ability to practice their religion then not offering taxpayer dollars at all necessarily hampers their ability to practice their religion. Citizens in districts with public schools can then argue their freedom to practice religion is hindered by not getting a check for religious instruction instead.

Which, of course, is the next frontier. The next challenge will attack a state for only allowing public funding to go to public schools arguing that the Free Exercise Clause requires that states give funding for parents to send students to religious schools instead.

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The floodgates are open.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

Courts, Education / Schools, First Amendment, Religion, Supreme Court