The Sleeper SCOTUS Case that Threatens Church-State SeparationRoundup
tags: religion, education, legal history, First Amendment, Church State Separation, free exercise, establishment clause
Kimberly Wehle is a professor of law at the University of Baltimore. She is the author of the book How to Read the Constitution—And Why.
The case, Carson v. Makin, involves a challenge to the Maine Department of Education’s use of state tuition dollars to supplement “nonsectarian” schools. Under Maine’s constitution, the state legislature must require “towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” But more than half of Maine’s 260 school districts—which it calls “administrative units”—do not have their own public schools. The Maine legislature passed a statute allowing those districts to either contract with established public schools or approved private schools in nearby districts to educate their children, or to “pay the tuition … at the public school or the approved private school of the parent’s choice.”
To qualify as an “approved private school” eligible for public tuition assistance, the law requires that the private school be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” The case boils down to a debate over the “nonsectarian” requirement, and whether the Constitution guarantees families a sectarian—or religious—option.
Two sets of parents whose children live in districts that operate no public secondary school selected the private, nonprofit Bangor Christian School “because the school’s worldview aligns with their sincerely held religious beliefs and because of the school’s high academic standards.” A third family chose a school called Temple Academy for similar reasons. None of the families actually sought public tuition for these schools, because, “they allege, given the ‘nonsectarian’ requirement, ‘such a request would be futile,’” according to a decision by the Court of Appeals for the First Circuit rejecting their constitutional claims.
The families nonetheless filed suit, claiming that Maine’s “nonsectarian” requirement violates a number of their constitutional rights, including their First Amendment right to the free exercise of religion. They lost in the lower courts, and the Supreme Court has now taken up the case for consideration.
As a threshold matter, the Court will have to decide whether the families have constitutional standing to sue. Their schools of choice are unwilling to participate in the funding in the first place, so a ruling in their favor would not redress any concrete injury, which is required to access the federal courts.
But the Court could decide that the lack of an opportunity to secure religious education for their kids at the state’s expense is sufficient injury to provide standing to sue, in which case the justices would turn to the case’s merits. Here is where things could go very awry. The text of the First Amendment—which prohibits the government from making any law “respecting an establishment of religion, or prohibiting the free exercise thereof”—offers no clear answers. (By its terms, it applies only to the federal government, but the Supreme Court extended it to the states under the Fourteenth Amendment.) At the most basic level, this language means that the government cannot establish a national Church. In colonial times, some people were required to pay religious taxes, attend an established church, and face punishment for dissent; by 1833, no state had an established religion. The First Amendment was designed to move us away from such systems. In doing so, it also inherently prohibited states from legislatively compelling church attendance or imposing religious taxes, dictating how a church worships, and giving particular church leaders governmental powers. It also forbids a state from picking and choosing which religions are eligible for government benefits based on non-secular—or faith-based—reasons.
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