While the nation waits for the Supreme Court to release its opinion in Dobbs v. Jackson Women’s Health, which is expected to overturn Roe v. Wade, it is easy to lose track of the many other important decisions released this term. In Carson v. Makin, released on Tuesday, the Court in a 6-3 decision continued to roll back the anti-religion rulings of the last 75 years. Those who value the legitimate role of religion in our nation’s public life, as well as the need to adhere to the original meaning of the Constitution, should not overlook the importance of this decision.
The state legislature in Maine enacted a tuition-assistance system for families living in school districts without a high school. Under this program, families could select a public or private secondary school to send their child to, and the school district would make payments to the school to defray the tuition cost. The controversial provision of the statute held that, starting in 1981, the school to which parents elect to send their children must be nonsectarian in order to receive the funds. The Maine Department of Education defined a sectarian school as any school “associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”
So, any accredited public school, secular private school, trade school, etc. would qualify to receive the government payment, but any Catholic, Protestant, Jewish, or Islamic school would not. One wonders why holding the Christian creed would qualify a school as being “sectarian,” but adhering to a woke creed and teaching critical race theory and gender studies would not. It seems arbitrary to consider traditional religions as “particular faith or belief system[s]” while excluding modern philosophies like critical race and gender theory, and general liberalism from the label. But that is a reflection for another essay.
The question the Supreme Court decided was whether enacting a restriction against sectarian schools receiving funds violates the Free Exercise Clause of the First Amendment. The Court held that it did. Pointing to previous precedent, the Court pointed out that the Free Exercise Clause (citations omitted) “protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.’… In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
This is a welcome and crucial reminder to the secularists who insist on a “wall of separation” between church and state. The right to free exercise of religion does not merely mean that Christians may quietly worship at home and in church on Sundays. Free exercise of religion means religious people and institutions may not be coerced, penalized, or denied public benefits because of their religious faith. Religious people, congregations, and schools have a venerable tradition of being not only accepted but encouraged and supported in public life.
Section II(B) of the Court’s opinion contains a fascinating discussion of the Establishment Clause. Remember, the religious portion of the First Amendment has two parts: Congress shall make no law 1) respecting an establishment of religion, or 2) prohibiting the free exercise thereof. Justice Sotomayor’s dissent in Carson v. Makin points out that a State may choose not to fund certain religious activity even if the Establishment Clause does not expressly prevent the funding. But the majority responds that it is not that simple, because the Establishment Clause and Free Exercise Clause are in tension: if the government is not prevented from supporting a religious activity under the Establishment Clause, any attempt to separate church and state “more fiercely” than the Establishment Clause requires likely will encroach on the right to free exercise of religion. In this case, Maine was not simply deciding not to fund a religious activity. The state decided to fund a certain type of activity (education) but single out and exclude sectarian religious schools. The Court therefore held that the “nonsectarian” requirement in the Maine law was not required by the Establishment Clause and that the law violated the Free Exercise Clause.
The dispute between the parties in Carson v. Makin raises a question that desperately needs to be discussed in the public square: What does the Establishment Clause mean? Conservatives need to understand the original meaning and limits of “an establishment of religion,” so that we do not cave when we are told there must be a wall of separation between church and state preventing any public recognition of or benefit for religious institutions. In fact, there ought to be no such wall. The Constitution says nothing of the sort, and the states in the early years of the republic simply did not function that way. So if the Establishment Clause does not erect a wall of separation between church and state, what does it do?
The original public meaning of the Establishment Clause is modest and limited: It prevents Congress from making a law respecting an establishment of religion. This means both that Congress is unable to establish a church at the national level and that it cannot interfere with individual states’ decisions to establish a religion (or not).
There are two important takeaways often forgotten in modern discussion of the Establishment Clause. First, the Establishment Clause was uncontroversial at the time of the First Amendment’s ratification because it only applied to Congress and not the states. The states were extremely diverse in their establishments of religion. Some states avoided having an established church; others did not. Maryland directly aided the Church of England, while New England states favored the Congregational denomination. Massachusetts kept the Congregational Church as its established state church until 1833. The Founders would have been quite perplexed that in 21st-century Maine, the state government would claim giving tax dollars to sectarian schools violated the Establishment Clause, when the Founders thought it quite consistent to have both an Establishment Clause and established state churches.
Second, we need to acknowledge the vast distinction between favoring one denomination at the expense of others, and favoring non-religion over religion. These are very different. For the sake of argument, let’s accept both that the Establishment Clause now applies to the states as well as Congress, and that the “spirit” of the Establishment Clause is not merely to prevent a state-established church, but to prohibit a state from favoring one denomination over others (the logic of both of these points is disputable and problematic, especially the application of the Establishment Clause to the states). Granting both of these points, there is still no reason that governments cannot subsidize religious education, encourage prayer and religious reading in schools, allow religious symbols in public places, etc. There is nothing in the text or history of the First Amendment, or the traditional practice of the states, that would lead us to believe it is unconstitutional to have Judeo-Christian prayers, readings, symbols, and customs as part of our public institutions. Far from trying to keep religion away from American public life, the Founders thought religion was necessary in our public life. John Adams proclaimed that “[o]ur Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”
Conservatives need to embrace these founding realities of our nation. Yes, America was founded as a land of religious pluralism. There is no nationally established church or creed and the people are free to exercise religion, or not, as they see fit. But there is no legitimate tradition walling off religion from the public square. There is no basis for sectioning off religious people and institutions and insisting they have no place in American government. Religious Americans should not quietly ask for exceptions and hope that the government might benevolently include them in a school-subsidy program. America has a tradition of embracing religion as a good for society to be promoted and encouraged in public life. While respecting differences, religious Americans need to insist on our right to exist and thrive openly in our public institutions. The Court’s ruling in Carson v. Makin is a solid step to tearing down the wall separating religion from public life and restoring the meaning of the First Amendment.
Frank DeVito is an attorney and a current fellow in the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.
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