Jurisprudence

The Supreme Court’s New Religious Liberty Case Could Destroy Public Education

A conservative supermajority may soon force states to fund Christian schools that indoctrinate students with hate.

A woman with long hair raises her hands to the heavens before the Supreme Court at night
An anti-abortion activist raises her hands in prayer outside the U.S. Supreme Court on Nov. 30. Chip Somodevilla/Getty Images

After a year of nationwide panic over what’s taught in publicly funded schools, the Supreme Court’s upcoming argument in Carson v. Makin deserves more attention. The questions posed in the case have major ramifications for the engineered hysteria over critical race theory, as well as the general dismay many Americans feel over the kind of education they’re subsidizing with their tax dollars. Carson v. Makin asks whether the First Amendment compels individuals of every faith to help finance the indoctrination of children by conservative Christians to discriminate against LGBTQ people, women, religious minorities, and liberal Christians. This pedagogy is so extreme, so divisive and fanatical, that it makes critical race theory look like Blue’s Clues. Yet the Supreme Court will almost certainly force taxpayers to subsidize these harmful teachings, no matter how gravely it violates their own sincerely held moral and religious beliefs.

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Carson is the latest in a line of decisions that has obligated Americans to underwrite religious instruction. In 2020’s Espinoza v. Montana, the conservative justices held that Montana infringed on the free exercise clause by subsidizing private secular schools but not private parochial schools. The justices declared that once a school funds private education, “it cannot disqualify some private schools solely because they are religious.” That decision compelled Montana’s taxpayers to help finance Christian schools that inculcate students with virulently anti-LGBTQ ideology, teaching pupils that homosexuality is akin to bestiality and incest.

The decision also marked a complete reversal of the court’s precedents. Only in 2002 did the Supreme Court even permit states to provide tuition aid to children for religious education. Before that point, the court insisted that the use of any public money to underwrite religious schools ran afoul of the First Amendment’s establishment clause, which erects a wall of separation of church and state. Espinoza used the free exercise clause to bulldoze that wall. But the justices feigned modesty by preserving a distinction between “status” and “use”: States could not discriminate on the basis of religious “status,” the court asserted, but they could withhold funding for religious “use.”

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This principle constitutes the last remaining barrier between church and state in the field of education. And Carson may obliterate it. The case involves a tuition program in Maine that helps children who live in rural areas without a public school. Maine provides funding to private schools that educate these students so long as their education is “roughly equivalent” to what public school students receive. While the schools may be affiliated with a religion, they must provide “secular instruction” to qualify for funding. Maine therefore complies with Espinoza: It declines to put public money to religious “use,” but does not discriminate against schools because of their religious “status.” For that reason, a panel of judges for the 1st U.S. Circuit Court of Appeals—which included retired Justice David Souter—upheld the program.

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Why, then, did the Supreme Court take up Carson? There’s only one plausible explanation: The GOP-appointed justices are preparing to reverse the 1st Circuit, abolish the distinction between status and use, and require Maine residents to fund Christian indoctrination.

Public education is a bedrock of American democracy. A bad decision in Espinoza would shake the foundation of the nation’s education system, spurning the notion that state-funded schools should teach students how to engage in diverse and pluralistic self-governance. The Christian schools that would receive a windfall from Maine operate as prejudice academies, instructing students to hate people who are different from them. They reject equality in favor of intolerance, preaching a fundamentalist ideology that’s incompatible with multicultural democracy.

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In its own briefs, Maine highlights this problem by describing the policies at two schools that would presumably receive public funding if SCOTUS rules against the state, Bangor Christian School and Temple Academy. For instance:

• Bangor Christian School expels all students who identify as gay or transgender, or who display any gender-nonconforming behavior, on or off campus. Children who profess to be gay are expelled even if they swear to remain celibate.

• BCS compels all teachers to affirm that they are a “Born Again” Christian and an “active, tithing member of a Bible believing church.” It will not hire teachers who are gay, transgender, or gender-nonconforming.

• BCS explicitly denounces non-Christian faiths; in social studies class, for example, ninth grade students are taught to “refute the teachings of the Islamic religion with the truth of God’s Word.” All students are instructed that men serve as the head of the household.

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• Temple Academy has a “pretty hard lined” rule against accepting non-Christian students. It will not admit students who are gay or transgender. Every student’s parents must sign a “covenant” affirming their opposition to abortion and same-sex marriage. Students must sign a “covenant” promising to glorify Jesus Christ and attend weekly religious services.

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• TA rejects any student with same-sex parents, even if the student is not LGBTQ.

• To work at TA, instructors must acknowledge “homosexuals and other deviants” are “perverted.” The school only hires born-again Christians, even for custodial positions, and openly discriminates against LGBTQ applicants.

Bangor Christian School and Temple Academy have a right to practice these beliefs. But if SCOTUS forces Maine to fund these schools, it will tacitly suggest that such noxious ideas have an equal place in a secular, diverse world. The court would implicitly endorse the radical theory that states may not favor the teaching of tolerance over the inculcation of hate, bigotry, and Christian supremacy. To frame Maine’s refusal to fund a school like Temple Academy as “religious discrimination” is to demean the value of a secular public education.

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Such framing also ignores the thousands of Mainers who disagree with these beliefs—Muslims, Jews, atheists, Christians with different conceptions of morality, LGBTQ people and their children. The First Amendment cannot possibly mandate exactions from the pockets of religious minorities to pay for indoctrination that clashes with their own beliefs. Its author, James Madison, was vigorously opposed to the taxation of citizens to fund religion, viewing it as an assault on taxpayers’ own religious freedom. Madison famously opposed a Virginia measure that would have taxed residents to support Christian teachers, decrying it as “a signal of persecution.”

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In light of this history, as well as ongoing clashes over critical race theory in public schools, one might expect the conservative court to let Mainers decide how to spend their education money. The campaign against CRT, after all, has focused on parents’ rights to control the curriculum in publicly funded schools—to determine how their tax dollars are spent on the education of the next generation. New laws gagging classroom discussion of race are designed to ensure that teachers drawing a salary from the state do not teach ideas deemed offensive by parents, students, and taxpayers. Proponents frame these measures as a legitimate exercise of local control over school, a long American tradition that, for better or worse, allows citizens to police pedagogy at the educational institutions they subsidize.

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Now the Supreme Court is poised to hold that Mainers must pay for students to attend schools that “refute the teachings of the Islamic religion” and claim that gay people are “perverted.” No matter that Maine’s religious minorities and LGBTQ residents view such instruction as offensive to their own religious views. No matter that Madison, the man who wrote the First Amendment, wrote that taxing citizens to subsidize religious education “degrades” non-Christians “from the equal rank of citizens.” This court appears dead set on using the First Amendment to accomplish exactly what its author sought to prevent.

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The bigger question, really, is how far the court will go. Plenty of other states fund private education and impose some secular requirements on religious schools that benefit from tuition assistance. As several of these states warned SCOTUS, a sweeping decision in Carson could render these programs unconstitutional, forcing states to underwrite discriminatory Christian education.

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And let’s be clear: The overwhelming majority of institutions that will benefit from these decisions are Christian. Although the plaintiffs here appeal to gauzy abstractions about religious pluralism, it’s almost always Christian parents and Christian schools seeking public money. Most parochial schools in the United States are Christian because most people in the United States are Christian. Carson is not about religious pluralism. It’s about empowering the majority religion to use the machinery of the state to establish its supremacy at the literal expense of nonbelievers.

At the heart of Carson lies a rejection of public education as we know it—an insistence that the government engages in noxious discrimination when it demands secular instruction in publicly funded schools. This idea, taken to its extreme, would obligate states to spend as much money on religious schools as it does on public schools, essentially destroying the public school system. SCOTUS might not take this leap in Carson, but it will transfer millions of dollars to Christian schools that will use it to teach hatred of minority groups. And by normalizing bigoted ideas, it will undermine a guiding principle of public schooling in America for more than a century: the proposition that every student deserves an education that prepares them to participate equally in democracy.

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