SCOTUS's Religious Decisions are Part of War on Public Education
Many observers have considered what Carson and Kennedy mean for religious freedom, the separation of church and state, and the continued rise of Christian nationalism. After the Carson decision, The New York Times charted the rise of a “pro-religion court,” declaring that the court is the most “pro-religion it’s been since at least the 1950s.” A Hindu student who feels the coercion that Justice Sonia Sotomayor mentions in her Kennedy dissent—the pressure to pray with their evangelical coach—would likely disagree. To take another example, some Jews have argued that a lack of access to abortion violates their religious freedom.
What does it mean to be “pro-religion”? And whose religion? These questions are worth asking. But if we think they are the only questions, and if we consider these cases as primarily about religion, we might miss how religious freedom is related to other freedoms. Yes, this is all about religion, but it’s about bigger matters as well.
We will have more clarity—analytical, political, even moral—if we think less about these cases as pro- or anti-religion and more about how they are pro- or anti-public or democratic. The problem with these decisions is not just that they undermine church-state separation. That framework has little historical consistency or essential meaning. It’s hard to defend a moving target. But at its best, separationism is a principle that allows for a fairer, more democratic society. That has not always borne out. Even when the wall of separation was higher and sounder, religion in American law was still “church-shaped,” and in practice our public institutions have tended to favor white Protestants. The court’s recent efforts to chip away at separation should be seen instead as an essential part of a much larger project: To undermine church-state separation is to diminish the strength of public institutions, most notably public schools.
One interpretation of Kennedy and Carson is that the court privileged free exercise, the freedom of individual believers, over disestablishment. Or, as legal scholar Micah Schwartzman put it, re-upping his pithy tweet from 2020, “So … the Establishment Clause violates the Free Exercise Clause. That’s the tweet?” Sotomayor sees it similarly. In her Kennedy dissent, she argued that the court’s decision—siding with the coach—“elevates one individual’s interest in personal religious exercise, in the exact time and place of that individual’s choosing, over society’s interest in protecting the separation between church and state, eroding the protection for religious liberty for all.” Again, we need to think more about why an individual’s interest trumped the interests of broader society. Free exercise superseding disestablishment, one clause canceling out the other, is but one instance of many where courts have recognized certain individual rights and privileges while stripping down public institutions and encouraging private interest to trample any robust notion of the public good.
Public schools hold a prominent place in the history of establishment clause jurisprudence, but they hold less and less of a place in American society and in the lives of students. According to a recent study, only 68 percent of Gen Z students are enrolled in a traditional public school (and 13 percent are in public charter schools). This represents a decline in overall public school enrollment, and a shift from public to charter schools, marking education’s latecomer status to the privatization of public goods. (Not everyone thinks this is a bad thing.) It is worth noting that Betsy DeVos, President Trump’s secretary of education and a longtime champion of school privatization and opponent of public schools, wrote an amicus brief in support of Coach Kennedy.