Looking at these decisions in a broader context, they evidence a consistent strict constructionist approach to interpreting the Constitution. The Supreme Court’s conservative majority looks to what is actually written in the Constitution’s text and its history, where relevant, rather than trying to impose the justices’ own policy views on what they think the Constitution should say. The religious freedom and gun rights decisions are rooted in the explicit provisions of the First Amendment and the Second Amendment, respectively. Roe v. Wade, on the other hand, grafted a manufactured “right” onto the Constitution without any clear textual or relevant historical foundation.
This article will focus on the Supreme Court’s religious freedom decision in Carson v. Makin. The decision reinforced the enumerated constitutional right to the free exercise of religious beliefs, which is explicitly set forth in the text of the First Amendment.
The Supreme Court ruled on June 21st that Maine’s tuition subsidy program for students in school districts that neither operate a secondary public school of their own nor contract with a particular school in another district is unconstitutional. By a 6-3 vote, the conservative majority held that the program violates the Free Exercise Clause of the First Amendment. The program denies parents who send their children living in these districts to private religious schools the same financial benefits that parents who send their children to private secular schools are entitled to receive.
In short, the state of Maine stacked the deck against families of faith.
“The State pays tuition for certain students at private schools—so long as the schools are not religious,” Chief Justice John Roberts wrote in his majority opinion. “That is discrimination against religion.”
Chief Justice Roberts concluded his opinion by writing that “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
The Supreme Court majority decision dismissed the notion that honoring parental school choice in the use of Maine’s tuition funding to pay the cost of sending their children to private religious schools violates the First Amendment’s Establishment Clause.
Chief Justice Roberts wrote that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”
The three liberal justices – Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan – not surprisingly dissented.
In his dissenting opinion, Justice Breyer disagreed with how the majority interpreted the application of the Establishment Clause to this case.
According to Justice Breyer, “state neutrality in respect to the teaching of the practice of religion lies at the heart” of the Establishment Clause. “The Establishment Clause was intended to keep the State out of this area,” he wrote.
Justice Breyer objected to the majority’s reliance on the Free Exercise Clause to strike down Maine’s decision to deny state funding to those parents who want to send their children to private religious schools, not private secular schools.
“Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education,” Justice Breyer wrote.
Justice Sotomayor wrote in her dissenting opinion that “it is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one.”
The dissenters have it wrong. While the Establishment Clause prohibits governments from compelling or endorsing a religious belief, preferring one religion over another, or entangling themselves unduly in religious matters, the Establishment Clause does not mandate that governments be hostile to people of faith in the public domain.
If parents can choose whether to send their children to a public school in their own school district or to a private school, the parents should bear the financial consequences for choosing a private school. That would be true whether the private school provides religious instruction or not.
This case is different, however. Maine’s government officials have deprived parents of the opportunity to send their children to public schools in certain districts where they live because, as a result of governmental decisions, there are no suitable public schools in those districts. Maine tried to solve this problem with a workaround – a tuition taxpayer funded subsidy program that pays the tuition of the private school chosen by the parents for their children.
The constitutional problem for Maine’s tuition program is that it was not neutral either in its design or implementation. Not all parents needing financial help to send their children to private schools as a result of the failure by Maine’s government officials to build any age-appropriate public schools in the children’s districts have been treated the same. Maine’s tuition program discriminated against parents of faith by precluding them from receiving any public subsidies altogether if they chose a private religious school for their children’s education instead of a private secular school.
As Chief Justice Roberts wrote, “there is nothing neutral about Maine’s program.” Quoting from a prior Supreme Court opinion, he explained that “a state need not subsidize private education” but “once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
With her usual hyperbole, Justice Sotomayor wrote that the Court’s majority “continues to dismantle the wall of separation between church and state that the Framers fought to build.”
President Thomas Jefferson is often quoted by those who want to build an impenetrable wall between church and state. He wrote a letter to the Danbury Baptists dated January 1, 1802, in which he said, “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”
The expression “building a wall of separation between Church & State” appears nowhere in the Constitution itself. To use it for the purpose of interpreting the Establishment Clause, the expression needs to be examined in its historical context to understand what President Jefferson was talking about.
The Danbury Baptists had written to President Jefferson expressing their concern that “religion is considered as the first object of legislation; and therefore what religious privileges we enjoy (as a minor part of the state) we enjoy as favors granted, and not as inalienable rights.”
The Congregational Church was the established church in Connecticut at the time. Other denominations, including the Baptists, could only set up their own churches with the approval of a justice of the peace. The Congregational Church basically ran Connecticut’s educational system.
President Jefferson sought to assure the Danbury Baptists that he would not do anything as president to impose his will on how the Danbury Baptists or any other religious sect decided to practice their religious beliefs. That was the purpose of his letter.
In an earlier draft of the letter, President Jefferson was even more explicit as to his intentions. He first wrote that “confining myself therefore to the duties of my station, which are merely temporal, be assured that your religious rights shall never be infringed by any act of mine.” After reflection, he wrote in the final version of the letter simply that he would adhere to the “expression of the supreme will of the nation in behalf of the rights of conscience…”
In short, Thomas Jefferson’s wall of separation between church and state was meant to prevent government control of religious beliefs or religious control of governments’ decisions and actions. It was not meant to be used as a pretext for governmental hostility to all religions and people of faith in administering what are supposed to be generally available government benefit programs.
The Constitution’s text and historical underpinnings are what matters when interpreting the Constitution, not what a justice would like it to say based on the justice’s own personal value preferences and desired public policy outcomes. Today’s Supreme Court majority is adhering to this fundamental principle.