Jurisprudence

The Supreme Court Is Poised to Turbocharge “Religious Liberty” Litigation

Six justices think the separation of church and state is unconstitutional. The consequences will be revolutionary.

Actors portraying Jesus and Mary stage a nativity scene on the sidewalk in front of the Supreme Court.
A live nativity scene in front of the Supreme Court Mark Wilson/Getty Images

The Supreme Court appears poised to reject a fundamental principle of constitutional law: the proposition that states have a compelling interest in keeping religion out of public schools. Six Republican-appointed justices indicated on Wednesday that preserving a secular public education system constitutes “religious discrimination” in violation of the First Amendment. In the short run, this conclusion will force taxpayers in several states to fund openly discriminatory fundamentalist Christian schools. In the long run, it imperils public education as we know it.

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Wednesday’s case, Carson v. Makin, involves a Maine program that provides a subsidy to students who don’t live near a regular public school. These students can spend the money on any private school that provides a “rough equivalent” of a public education. Eligible schools can be affiliated with a religion, though they can’t infuse their curriculum with religious doctrine. If a school compels students to engage in religious exercise—and discriminates against those who don’t adhere to the faith—it doesn’t qualify for the program under state law. A Christian family in Maine filed a lawsuit alleging that this restriction violates the First Amendment’s Free Exercise Clause, handing the Supreme Court another opportunity to obliterate the separation of church and state.

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During oral arguments, Maine chief deputy Attorney General Christopher Taub raised several justifications for the state’s refusal to underwrite religious education. Most of them began from the presumption that the government has a compelling reason to build a wall between religion and state-sponsored education. Taub had good reason for this presumption: It’s called the Establishment Clause of the First Amendment. In a long line of cases, the Supreme Court has prohibited states from using their “public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals.” The court has routinely explained that this bar does not “manifest a governmental hostility to religion or religious teachings,” but simply enforces the First Amendment’s guarantee against any law “respecting an establishment of religion.” Moreover, the court has held that states may erect a wall between church and state that goes higher than the Establishment Clause requires, acknowledging “antiestablishment interests” in preventing entanglement of religion and government.

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For most of the 20th century, the Supreme Court mandated religious neutrality in public education. Now a majority of justices think this neutrality is “odious” discrimination. How did it come to this? Justice Amy Coney Barrett provided a clue when she told Taub that “all schools” have “some belief system”; even public schools must decide “the kind of values they want to inculcate in the students.” To Barrett and her conservative colleagues, religion is just one of many competing “values” that schools might teach. Taub identified some of these values—“public service, be kind to others, be generous”—as the foundation for a civic-minded education in a pluralistic democracy. The conservative justices were more skeptical: They think that, by selecting these (secular) values as the bedrock of public education, Maine disfavors institutions that would rather  instill overtly religious values.

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Our current Supreme Court sees things differently. In question after question, the justices appointed by Republican presidents suggested that neutrality toward religion actually constitutes hostility toward religion. Justice Brett Kavanaugh told Taub that declining to subsidize religious schools was just as “odious to our Constitution” as funding Protestant schools while excluding Catholic and Jewish ones. “The exclusion of religious people and religious institutions from public benefits solely because they’re religious,” Kavanaugh declared, “is itself discriminatory.” Justice Clarence Thomas implied that secular education is just a pretext for anti-religious animus, mocking Taub’s claim that there are legitimate benefits of non-sectarian schooling. (Thomas imagined a student at a secular school proclaiming: “Oh, I’m so glad I’m here because you don’t have a lot of Catholicism here.”)

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Justice Sam Alito drew upon this argument when he asked if a private school could receive money if it “inculcates a purely materialistic view of life.” Taub hedged, explaining that “there are other aspects of what a school could do that would be inconsistent with public education,” like teaching “Marxism or Leninism” or “white supremacy.” If such a school applied for funding, Taub said, “a way would be found to ensure that that school is not allowed to participate.” Alito responded: “Would you say the same thing about a school that teaches critical race theory?” (Taub: “I don’t really know exactly what it means to teach critical race theory.”) Barrett, too, did not seem to believe that Maine would truly pull funding from private schools that teach offensive ideas. She accused the state of failing to engage in real “oversight,” discriminating against sectarian schools while giving secular schools “a thumbs-up” to teach dangerous ideas.

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Marxism, Leninism, white supremacy, critical race theory: They’re just “values” to the conservative justices, no different from the divinity of Jesus Christ or the immorality of homosexuality. Maine’s Department of Education polices the teaching of Christ’s divinity in publicly financed schools, but not the teaching of critical race theory. So, according to Alito and Barrett, it’s discriminating against religion.

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The low point of arguments arrived when Justice Neil Gorsuch seemed to insult more liberal and tolerant religions as “watered down” versions of the real thing. Gorsuch asked Taub if Maine’s rules “favor religions that are more watered down, some might say, or more majoritarian, more comfortable with what a bureaucrat in Bangor might say.” (Maine’s Department of Education is in Augusta, but put that aside.) In other words, religions that have value overlap with public school curricula get a pass, while fundamentalist religions—which, to Gorsuch, are more genuine and undiluted—face discrimination. With this comment, Gorsuch revealed that he sees progressive religions as weak, compromised, and inauthentic because they do not demand the kind of bigotry and indoctrination as hard-line religions. (If a state official made this remark, SCOTUS would probably accuse them of anti-religious animus.)

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It appears inevitable that the court will side against Maine and order the state to start funding private parochial institutions like Bangor Christian School, where students are taught to “refute the teachings of the Islamic religion” and get expelled if they’re LGBTQ. In theory, the decision could be limited to Maine, Vermont, and other states that impose secular requirements on publicly funded religious schools. But as Vox’s Ian Millhiser pointed out, the implications of Carson go far beyond the “school choice” context. If SCOTUS agrees with the plaintiffs that religious families cannot be compelled to “choose between their religious beliefs and receiving a government benefit,” it will undermine the premise of public education in America. States might be obligated to subsidize private tuition for religious students who assert that secular public schools discriminate against their beliefs. And if the court transforms neutrality toward religion into hostility toward religion, it will open a whole new frontier of “religious liberty” litigation, inviting challenges to every single government program that refuses to fund religion.

The stakes are sky-high. And the conservative justices’ nonchalant attitudes bely the revolutionary nature of their position. Since the 1940s, the Supreme Court has embraced the principle that states can—and often must—exclude religious individuals, schools, and organizations from government benefits to protect the wall between church and state. Today’s court will likely reject the very premise that states can safeguard that wall, reinterpreting separation of church and state as unconstitutional animus. In the name of promoting religious liberty, SCOTUS is poised to repeal the Establishment Clause itself.

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