The Supreme Court Further Dismantles the Establishment Clause, Empowers Religious Parents to Obtain Taxpayer Funds for Sectarian Schools, and Ignores the Rights of the Children in Carson v. Makin


Maine is very rural, so there are many children who don’t have a secondary public school nearby. To meet the need for all children to have access to a paid-for education, the state opened a voucher system that grants parents tuition assistance that they can then apply toward a public school or a private school. Not all private schools were covered, though. Parents could only use the state funds for “nonsectarian” schools, because the Establishment Clause had imposed a barrier to state funds supporting religious education. If education were steeped in religious faith, it was no longer public education, and taxpayers would be paying into religious coffers. That was the law. As Justice Stephen Breyer’s dissent in Carson v. Makin summarized: “Maine wishes to provide children within the state with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion. . . . The Religion Clauses give Maine the right to … choos[e] not to fund religious schools as part of its public school tuition program.” That’s not the law anymore.

Chief Justice Roberts and the five other religiously conservative Justices reject such reasoning in Carson v. Makin. Instead of being concerned about public tax dollars supporting religious education, they now focus on whether the religious parents are being subjected to “discrimination.” The Court holds that Maine’s carving out of funding for sectarian schools—where faith saturates education—violates the parents’ personal First Amendment free exercise rights and presents no problem under the Establishment Clause.

Chief Justice John Roberts’ majority opinion in Carson confirms that no longer does a majority of the Supreme Court fear the tyranny that inevitably results from a union of church and state power or even feel the need to acknowledge the cautionary history that the Framer of the First Amendment, James Madison, laid out in his Memorial and Remonstrance Against Religious Assessments. Unlike earlier Courts that took into account a healthy fear of theocracy, this Court sees no evil in it. Justice Sonia Sotomayor’s dissent summarizes the proposition nicely: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

Madison argued against taxpayer support for religious education because it was bad for religion and civil society. There was a time when the religious right agreed with him, but no more. The religious right strongly and publicly rejected public funding for schools and churches–because of the conditions attached that could affect religion–until they didn’t.

Carson is further evidence that the religious right is on a mission to fully dismantle the Establishment Clause barriers to taxpayer support of religion and to deflect public dollars to their religious ends. A majority of the sitting Supreme Court appears eager to support this worldview, as it has proven with a series of cases in very short order: Trinity Lutheran Church v. Comer (2017); Espinoza v. Montana Department of Revenue (2020); and now Carson v. Makin (2022). Indeed, the Chief deems the Carson holding “’unremarkable,’” as it points to Trinity and Espinoza.

The Invisible Children in the Carson Opinions

One of the more interesting elements of the case is that the Court majority refuses to give any deference to the state’s explanation of its interest in a free public education for all students in the state. Maine defended its tuition benefit scheme on the ground that it was intending to pay for the “rough equivalent” of a Maine public school education. Of course, a public school education cannot be religious (at least so far). The First Circuit accepted the state’s explanation of the state interest, and upheld the tuition benefit, which is how the Supreme Court used to see these issues. The majority on this Court, though, would have none of it, essentially saying that Maine’s interest in a public school education for every student is a pretext for discriminating against the religious. Their not-so-implicit point is that Maine’s interest in public education is not so valuable when weighed against religious parents’ right to choose to put their children in schools whose religious “worldview aligns with their sincerely held religious beliefs.”

I am hearing echoes of Wisconsin v. Yoder. In that case, the Court held that the First Amendment permitted the Amish to remove their children from school in violation of Wisconsin’s compulsory education laws. The Court weighed the interest in a public education for all children, which Wisconsin rightly argued is essential to a functioning democracy, against the Amish’s belief in an agrarian religious society. The Amish won (in part because of a preposterous assertion by the Court that the Amish never break the law).

A problem with both Carson and Yoder is that there is no consideration of the civil rights of the child. We are talking, after all, about the child’s education. Justice William Douglas’s dissent in Yoder is as important today as it was then, when he noted that “children are ‘persons’ within the meaning of the Bill of Rights,” and then said, “On this important and vital matter of education, I think the children should be entitled to be heard. While the parents, absent dissent, normally speak for the entire family, the education of the child is a matter on which the child will often have decided views. . . . It is the future of the student, not the future of the parents, that is imperiled by today’s decision.” I think both the Court and Maine should take Douglas’s point more seriously.

The Carson Court buried the rights and needs of the children and, instead, the decision is all about the constitutional value of a parent sending a child to a school that inculcates the child in their faith. As in Yoder, the Court’s thumb rests heavily on the parents’ imposition of religion and not on the distinct rights and needs of the students. Yet the Court criticizes Maine for having different curriculum requirements for public and private schools, saying that proves the state is not neutral as to religion and not really that dedicated to an equivalent education for all students in the state. Fair enough.

Maine’s stated interest throughout this litigation has been to provide every Maine child access to the equivalent of a free, public education. It’s about educating the children. Yet, according to the Court, Maine does not appear to have instituted a universal curriculum for all schools or a set of proficiency testing requirements for all students in the state. For Maine to fulfill its stated goals in this case, it needs to take a child-centered perspective and then design and fund a system toward the end of serving all of its children. Funding should follow the end of educating the children in the necessary secular studies our society desperately needs, period.

With the Court’s new doctrine, the state may not direct funding according to the identity of the school whether it is public, private, or religious. They have made that clear. But the states can base their funding decisions on the rights and needs of all children. So every school should be required to fulfill the same curricular requirements and submit to the same testing regimen. Those that refuse, don’t get funded. That’s the best possible world for our children.

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