The Supreme Court’s June 21 decision in Carson v. Makin, striking down Maine’s ban on tuition reimbursement for certain high school students, is significant for three reasons: It continues to roll back false understandings of the First Amendment. It helps protect parental choice in education. And it exposes the lingering religious hostilities of a certain part of the American elite.
To recap the case: Because Maine is a large, low-population state, not all towns have high schools. Maine’s state constitution guarantees the right to a primary and secondary education. To square that circle, Maine allows parents in remote communities to send children to private secondary schools, even outside the Pine Tree State, with reimbursement to a certain level. The only catch is that the school cannot be religiously affiliated.
Two parents who wanted to send their child to Bangor Christian Schools sued Maine, claiming that BCS was accredited and provided a secondary education. Its only “disqualification” was its Evangelical affiliation. They claimed that was religious discrimination.
Orthodox. Faithful. Free.
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On Tuesday, the Supreme Court, by a 6-3 vote, agreed.
First, the ruling continues the current Supreme Court’s trajectory to restoring the First Amendment’s protection of free exercise of religion. As the late Rev. Richard Neuhaus tirelessly pointed out, there are not two religion clauses in the First Amendment but one. As Neuhaus understood it, the first right contained in the First Amendment is about religious freedom. The framers intended to protect religion. The “no establishment” clause forbids one particular denomination enjoying special privileges (e.g., some of the early colonies had established churches). The “no establishment” clause does not treat religion as such as something prohibited or some second-class phenomenon to be banished behind locked doors in churches.
For 150 years, that is how the First Amendment was understood. Only in 1947 did the Supreme Court (in McCollum v. Board of Education) shift to understanding “no establishment” as applying to religion understood generically. The result of that shift has been to reduce religion to something treated almost as a skunk in public life: something to be tolerated but best pushed to the side.
A child from rural Maine can even take the state’s tuition money outside of Maine to attend a private secondary school—an Ivy League prep school—as long as it is secular. But, somehow, the mere presence of religion in the school’s curriculum, even if that curriculum otherwise meets or exceeds educational standards, irremediably taints the whole program.
Second, the decision prefers parental choice in education. A number of Maine legislators who joined the case contended Maine was making a choice to promote “democratic” and “civil” values by preferring “nonsectarian” over “sectarian” education. In other words, Maine legislators were making that choice.
The Supreme Court, however, found it compelling that parents were making the choice in choosing their child’s school. Before you start cheering, note that the Court’s logic was not necessarily that parental choice was a good thing. No, the fact of parental choice was adduced as proof that Maine really was not promoting religion, at least directly, since the selection of a confessional versus “nonsectarian” school represented a parental, not a state, decision.
Given that parental choice in education—from financial support to pick a school of your choice to deciding about curricula and schoolbooks to keeping your child away from ideological sexual grooming—is one of the shock points in contemporary debate, every time the law protects school choice, for whatever reason, should generally be applauded and expanded upon.
There remains a mythology that the “public school” best prepares “democratic citizens” and should, therefore, be preferred by the state. That view ignores the fact that public schools are as much immersed in values as private schools, the only difference being public schools sometimes still pretend to be “value-neutral” (though the more “social justice plus” places concede that’s fiction). We need to shift the debate. What is education for? Is education for kids or for schools? If the former, then school choice should follow. Only if the latter might public schools have a case to push their claim for a monopoly on society’s money.
Third, the majority continues to traffic in the view that religion is an inherently divisive force, which is why in their view the First Amendment limits its civil (i.e., social) impact while protecting (really, tolerating) its private expression. That argument, of course, depends on pretending that secularism is not a religion of its own but just the generic alternative to all things religious, so that our civil community’s default position should be secularism. This cramped view of the First Amendment claims to “protect” religious freedom when, in fact, it only grudgingly tolerates it.
The same judges who fear the baneful impact of Maine teenagers attending religious secondary schools had no problem giving civil authorities almost carte blanche, in the name of “public health,” to close down your churches and synagogues even as supposedly purely secular entities like casinos or abortion facilities were allowed to function.
In his dissent, Justice Breyer argues that Maine legislators were not discriminating against religious secondary schools because of their status—because they were operated by a religious group—but because of their teaching—because they actually incorporated religion into their curriculum. Don’t think this is a distinction without a difference. It’s quite important. You can believe anything you want. Just don’t dare carry it into practice. Religion might be seen through a crack in the church door, but it is definitely not to be heard.
Happily, the majority also seems to be moving away from those myths.
We’ll see how far they go.
Among the cases remaining on this year’s docket for which decisions are due is Kennedy v. Bremerton School District, where a football coach was fired for praying in public after high school games. He didn’t compel anybody to join him. He didn’t ask for them to. He simply gave an example, which his opponents deem to be using his public position to spread that baneful influence of religion. If the Court holds that his termination was unlawful, it will be another indication the Court is fixing 75 years of flawed religion jurisprudence.
That may come down soon, along with Dobbs. Let’s wait, see, and pray (maybe even in public).
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