Writing for the Bucks County Beacon, Peter Greene looks at the crumbling wall between church and state and the new interpretation of the First Amendment powering it.
The First Amendment has always included a tension between the establishment clause (the government can’t endorse any particular religion) and the free exercise clause (the government can’t get in the way of you freely exercising your right to worship as you choose). SCOTUS has generally favored the establishment clause, but it’s always been a tricky balance. So, for instance, it has been the understanding that if a student leads a prayer at a school gathering, that’s probably okay, and if a school staff member leads students in a school mandated prayer, that probably isn’t.
What we’ve seen most recently is not just a favoring of the free exercise clause, but an expansion of what free exercise even means.
One might assume that free exercise means that the government shouldn’t interfere with your attempts to freely worship as you please. The government cannot, for instance, forbid the Catholic Church to open any religious schools at all.
But the reasoning behind Carson, the argument increasingly heard, is that a private religious school can’t exercise its religion freely if it isn’t given access to the same sort of funding as public schools receive. In Carson, the court ruled that if Maine gave vouchers for students to attend a secular school, they must also give vouchers to attend private religious schools.
The Manhattan Institute, the right-wing think tank that employs Christopher Rufo, has just cranked out a report that argues, based on Carson and Trinity Lutheran, that “Unconstitutional Religious Discrimination Runs Rampant in State Programs,” claiming that states are “persecuting religious schools and charities.”
It offers numerous examples of this persecution. None of the examples involve the state actively interfering with the operation of various religious businesses, but simply not allowing these private religious entities to be paid with public taxpayer dollars.
In other words, you may think that persecution and discrimination might mean that the state comes in and tells the Catholic Church that it can’t operate a school, but at the moment, it means that the state won’t use taxpayer monies to help fund that school. Discrimination in this view is not just active opposition, but a failure to financially support.
And that is not the end of the free exercise expansion.In Carson v. Makin, Chief Justice Roberts argued:
In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.
“Otherwise available public benefits” is doing a lot of work here, but so is “excludes.” There is a sequel to Carson wending its way through the courts right now. One of the schools from Carsons is arguing that they are still being excluded because the state of Maine will not let them collect voucher dollars if they insist on keeping certain discriminatory policies, such as hiring only teachers who profess the correct version of a Christian faith.
