Sharply narrowing the remaining constitutional separation between government and religion, the Supreme Court ruled Tuesday that public money grants cannot be denied to parents just because they will use it to pay for religious education of their children.
The 6-to-3 decision, in a case from Maine, goes considerably further than the Court had ever gone to allow the religious use of public funds. The Court’s six conservative Justices erased a basic principle that had guided its church-state decisions for decades.
Explicitly since at least 2014, and by common perception long before that, government has been allowed by the Court to subsidize some expenses of parochial schools – busing and non-religious textbooks, for examples – but not for teaching religion itself.
The Court had reinforced that maxim just five years ago, when it allowed parochial schools equal access to state funds for a non-religious purpose: to resurface their playground. At that time, only two of the nine Justices wanted to allow government to subsidize even religious instruction: Justices Neil M. Gorsuch and Clarence Thomas.
Those two were in the majority Tuesday, joined by Chief Justice John G. Roberts, Jr., who actually wrote the new ruling, and by Justice Samuel A. Alito, Jr., and the two most junior Justices, Amy Coney Barrett and Brett M. Kavanaugh. Justices Stephen G. Breyer, Elena Kagan and Sonia Sotomayor – the Court’s dwindling bloc of progressive jurists – dissented.
Justices Breyer and Kagan, who had gone along in 2017 with public subsidy of parochial schools’ playground resurfacing, refused to join in Tuesday’s expansion beyond that.
Under the Constitution’s First Amendment Religious Clauses, which were applied versions of Thomas Jefferson’s idea of a “wall of separation” between government and faith, the people have been promised since 1791 that they will have “free exercise” of their religion but that government will not “establish” or promote religion.
That has long meant government tolerance, but not support. As that understanding has worked out in practice, the Court has more rigorously enforced the no-establishment clause than it has safeguarded religious exercise. In recent years, though, the “free exercise” clause has emerged to greater prominence, and Tuesday’s ruling in the case of Carson v. Makin raised it to a significantly higher, perhaps preeminent, level.
Justice Sotomayor, in her dissenting opinion, expressed “growing concern for where this Court will lead us next.” She lamented “what a difference five years makes,” adding that, “today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
At the core of the case is a program of tuition subsidy that the state of Maine has provided in the many parts of the state that are so rural and low in population that they cannot afford to operate a public high school.
Parents have the option of choosing either a public or private high school for their children, and the tuition aid is paid directly to the school. However, beginning in 1981, state officials became worried about violating the First Amendment ban on fostering religion so the program began barring use of the funds at religious schools. Two parents sued the state in 2018, pointing out that they wanted to send their children to parochial schools but needed the tuition aid to do so. After losing in federal court, they appealed to the Supreme Court.
The Roberts majority opinion in the parents’ favor relied significantly upon prior rulings along the Court’s modern path toward more approval under the Religion Clauses of state aid to religious parents or families. From those, the Chief Justice drew the principle that state aid is allowed when supplied to the parents themselves, even while it remained the reality that aid could not go directly to a parochial school.
That principle led in time to the conclusion that parochial schools could not be discriminated against based solely on their “status” – that is, the mere fact that they were religious in nature. In the 2017 ruling that allowed playground physical financing, the Court majority said in a key footnote that it was dealing only with discrimination “based on religious identity” and not “religious uses of funding.” (At that time, that footnote was widely interpreted to mean that it was inserted in order to build a more solid majority – perhaps to hold the votes of Breyer and Kagan, as it, indeed, did.)
Tuesday, with a newly enlarged conservative majority, the Chief Justice reinterpreted the principle, saying that it was never intended to treat subsidies differently based upon “use” of the money as distinguished from the “status” of the entity receiving the money. That appeared to retroactively erase the footnote suggesting that very difference.
Indeed, the new opinion said explicitly that the Court had “never suggested” in prior rulings that discrimination based on “status” was “any less offensive to the Free Exercise Clause.” Roberts then went on to embrace the notion that the very idea behind a parochial school is to educate “young people in their faith, inculcating its teachings, and training them to live their faith.”
Further, the Chief Justice wrote, any attempt by state officials in operating a public education subsidy to pry into how a parochial school did use the money “would raise serious questions about state entanglement with religion and denominational favoritism” – a form of “entanglement” that the Court had repeatedly ruled to be forbidden by the other part of the Religion Clauses, the ban on “establishment” of religion.
Finally, the majority opinion also reinterpreted its famous 2004 opinion striking down a Washington State program of college vocational scholarships in a case involving a student who wanted to use the funds for his studies to become religious clergy.
Although that ruling, in the case of Locke v. Davey, had been understood, then and since, as the origin of a broad distinction between the status of an entity and the use to which state funds could be used, the Chief Justice wrote Tuesday that its significance was simply following a long tradition against use of taxpayer funding “to support church leaders.” That precedent, he concluded, “cannot be read beyond its narrow focus on vocational degrees.”
The Court released the Maine decision as it continued to pour out final rulings, with the aim of finishing its current term late this month or in early July. It will have more decisions on Thursday. Among other major rulings still awaited are those testing whether the Court will overrule its decisions establishing a woman’s constitutional right to an abortion, and whether it will expand the scope of the personal right to carry a gun, under the Constitution’s Second Amendment.