Dallas Koehn: Carson v. Makin (My Free Exercise Can Beat Up Your Wall of Separation)
Dallas Koehn blogs at Blue Cereal Education where he pays particular attention to legal rulings related to education. In a recent post, he connects Carson v. Makin to other decisions involving the wall that used to separate church and state.
Well, any pretense Chief Justice John Roberts has been maintaining about being in any way “moderate” or “reasonable” seems to have been blown to hell this week. The Court’s decision in Carson v. Makin (2022) accelerates the jurisprudential slide away from the proverbial “wall of separation” and elevates the “free exercise” of the minority with the most influence in federal government over the right of anyone else not to pay for it. In the process, the Supreme Court is now openly deriding the suggestion that states have an obligation (or even the right?) to provide a secular public education for kids to begin with.
In Zelman v. Simmons-Harris (2002), the Supreme Court decided that state voucher programs providing funding for students to attend private schools – even religious institutions – can be constitutional. It relied heavily on the role of “parent choice” to determine where state funds were actually spent. Even if the majority of vouchers were used at private religious institutions, as long as there were valid secular options and the choices were made by families rather than the government, the program did not violate the Establishment Clause.
In Trinity Lutheran Church of Columbia, Inc., v. Comer (2017), the Court required the state of Missouri to include churches or other religious organization in a state program to modernize playgrounds. This was the first time the Court determined that the U.S. Constitution required government to provide direct public assistance to religious institutions. In so doing, it called into question the validity of “the Blaine Amendment” – provisions in many state constitutions which prohibit direct support of sectarian institutions. Usually, this meant schools.
In Espinoza v. Montana Department of Revenue (2020), the Court determined that excluding religious schools from voucher programs violated the Free Exercise Clause of the First Amendment. The Court had previously distinguished between what funds were being used to DO (meaning that general good being done by religious institutions might still qualify for public funding) vs. distinctions based on what an institution WAS or BELIEVED. Restricting public funding based on what was being promoted might be OK; restricting it based on the beliefs or values of the institution was NOT. In Espinoza, despite token acknowledgement of this historical consideration in the majority opinion, in practice the distinction was clearly beginning to crumble.