Everything's On Fire, But Did You Notice That SCOTUS Just Burned Down The Separation Of Church And State?

"What a difference five years makes," writes Justice Sonia Sotomayor in a bitter dissent released this morning, as the conservative justices take advantage of another day without decisions on guns and abortion to dump a raft of godawful holdings that fundamentally alter Americans' lives for the worse. But today's ruling in Carson v. Makin is another strike of the wrecking ball against the wall between church and state, and we're not looking away from it.

The case concerns education subsidies in Maine, the most rural state in the country, where more than half of all school districts lack a secondary public school. Leave aside for the moment the sin and shame of a rich, developed nation which theoretically enshrines the right to a free, public education in federal law but where wide swathes of the country fail to run schools at all. Maine offered a subsidy to parents living in districts with no public education to use at private schools, but barred them from using the money at religious schools.

Up until this morning, this made sense under the First Amendment's Establishment Clause, which reads, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For a long time, we all understood this to mean that the Constitution protected the government's right, not to say its obligation, not to subsidize religious activity. But thanks to the AHEM unfortunate events of 2016, the Court has fallen under the control of theocrats who have flipped this formulation on its head. Now, any government benefit must be extended to religious organizations — i.e. the government must "establish" religion — and any refusal to do so is presumptively an encroachment on the "free exercise thereof."

"The State pays tuition for certain students at private schools — so long as the schools are not religious," writes Chief Justice John Roberts in doe-eyed wonder that anyone would accuse him of abandoning 50 years of precedent. "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."

Welcome to America where "sincerely held religious beliefs," no matter how bigoted, trump everyone else's right to marry, adopt, control our own bodies, or direct our own taxpayer dollars. Let's take a wild shot in the dark that if a liberal synagogue tried to open a women's healthcare clinic which provided abortions, the Court would take a different position if the state refused to subsidize it.

The decision is a broadside against the separation of church and state, of course, but it's also part of a concerted attack on public education itself and its role in crafting a body politic of Americans able to function in a civil democracy. Because, in case you didn't notice, Republicans are waging an all-out attack on public education in this country.

Writing for the Court's liberals, Justice Stephen Breyer dissents:

What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education? What other social benefits are there the State’s provision of which means — under the majority’s interpretation of the Free Exercise Clause — that the State must pay parents for the religious equivalent of the secular benefit provided? The concept of “play in the joints” means that courts need not, and should not, answer with “must” these questions that can more appropriately be answered with “may.”

Justice Breyer's dissent refers multiple time to "play in the joints" between the first and second parts of the Establishment Clause, the balance between the ban on government "establishment" and the individual's right of "free exercise." But in many ways, it reads as a paean to a bygone era where judicial ambiguity allowed states to craft individualized solutions to meet the needs of their own citizens. But to hold this era of judicial restraint up as a model, you have to pretend that we still live in a country with majority rule. And we do not.

This is a country which routinely puts a man in the White House who lost the popular vote. Where Democrats need a titanic wave to overcome the small-state advantage in the Senate and massive gerrymandering in the House. Where state legislators pick their voters, and not the other way around. Where wide majorities of Americans support abortion rights and gun control, but cannot enact laws to protect themselves. And where our nation's highest court is stacked with appointees of presidents who could not garner the support of a majority of citizens and consistently gives us laws we do not want.

Justice Sonia Sotomayor suffers from no such lack of clarity in her own dissent, noting that the Court's 2017 holding in Trinity Lutheran Church of Columbia, Inc. v. Comer, in which the Court held that state funds for playground resurfacing had to be extended to religious schools, was the camel's nose under the tent.

"[T]he Court for many decades understood the Establishment Clause to prohibit government from funding religious exercise. Trinity Lutheran veered sharply away from that understanding," she writes, noting that the majority waves off the obvious difference between government funding for playground rehab and the state satisfying its obligation to educate children by subsidizing religious indoctrination.

"The 'unremarkable' principles applied in Trinity Lutheran and [its 2020 successor] Espinoza suffice to resolve this case," shrugs the Chief Justice blithely.

"This Court continues to dismantle the wall of separation between church and state that the Framers fought to build," Justice Sotomayor laments, concluding:

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. With growing concern for where this Court will lead us next, I respectfully dissent.

With growing concern for where this Court will lead us next, your Wonkette agrees.

[Carson v. Makin]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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