In a victory for religious liberty, equal opportunity, and (to a somewhat lesser extent) school choice, the Supreme Court ruled against a Maine tuition program that blocked district-funded tuition from being used at religious schools. As is usually the case where religious freedom is concerned, though, the left is having an absolute meltdown over it.
In a 6-3 ruling authored by Chief Justice John Roberts, the nation’s highest court held in Carson v. Makin that a Maine program that allowed districts with no secondary schools to give tuition for private schools violated the Free Exercise Clause of the First Amendment by barring those tuition funds from being used at religious schools.
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.
Justice Breyer wrote a heated (and pretty pouty) dissent to this ruling, hinting at his belief in the non-existent “separation of church and state” the left likes to claim exists.
The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.
Breyer’s dissent misses the point of the majority’s opinion, though. Roberts clearly spelled it out when he 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.” In other words, you are not forcing the state to endorse a particular religion when you allow people to choose any school, public or private, to attend.
Justice Sotomayor went above and beyond Breyer, losing her mind over the ruling.
What a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___ (dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.
Breyer and Sotomayor are joined by plenty of pundits on the left who feel the Court is now out there forcing everyone to be Christian or something. Take CNN’s legal analysts, for example.
“[T]his court is elevating the religious aspects of the First Amendment above others” is a complaint that makes little sense. Speech, press, assembly, and petition weren’t up for discussion here, and there is no indication in this ruling that the Court favors forcing states to give money to Christian schools over someone’s right to free speech. It’s an absurd take.
The Court arguing that you can’t exclude an institution from a tuition program on the basis of its religious bent seems like the bigger issue here. Forcing a state to make all options available to parents, even if those options include religious schools, seems like a no-brainer when you look at the plain text of the First Amendment. Very clearly, the First Amendment explains that the government cannot establish a single, government-mandated religion in the country, nor can it tell you what you can and can’t practice. The former isn’t being violated by today’s ruling, but the latter was upheld.
CNN’s Jeffrey Toobin, who still somehow has a job, tweeted this thought out as though it was a bad thing.
“‘Separation of church and state’ is a vanishing concept at the Supreme Court” is a good thing. Why? Because it never existed in the first place. It was a made-up inference that does not stand up to the intention of the Founders at any point. And the left, which goes out of its way to target Christianity in the public square, is apoplectic that this made-up legal platitude might be slipping away.
The Supreme Court made the right ruling in Carson v. Makin, and it’s driving progressives nuts.
Author: Joe Cunningham