APU APU Static Legal Studies Original

The Shifting Lines of Church and State Separation in the US

By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies

I have practiced law since the end of 2004 and things never stay the same. As someone who spends time doing academic legal research with a focus on legal history, I get to see how the law works in slow motion and how legal situations sometimes change over time. At times, I see legal decisions that are highly significant events.

One of those decisions occurred this week. On June 21, the Supreme Court released its ruling in the case of Carson v. Makin, striking down Maine’s ban on using public funds for religious schools. This church-versus-state ruling will likely change how several states will use their educational funding.

The Case of Carson v. Makin

Carson v. Makin deals with a rule in the state of Maine that prohibits the state from giving school vouchers to sectarian schools. These vouchers are part of a tuition assistance program that allows parents in Maine to send their children to an accredited private school if the parents live in school districts that do not operate their own secondary school.

According to the tuition assistance program, once the parents choose a private or public school, the home school district then makes payments to the school chosen by the parents to cover the children’s tuition. This program has existed for many decades and has always demanded that the school chosen by the parents be properly accredited.

But since 1981, there has been an additional restriction that the school be “nonsectarian” and cannot provide any religious instruction. The legal question the Supreme Court had to decide this week was whether this restriction violated the Free Exercise Clause of the First Amendment.

Related link: Supreme Court Ruling Heralds Ideological Shift for Decades

The Majority Opinion

Chief Justice Roberts wrote the majority opinion and was joined by all of the conservative justices. The facts of the case were not disputed.  The parents who brought this suit sent the children to Christian schools accredited by the New England Association of Schools and Colleges (NEASC); those schools are private schools that fulfill the attendance requirement under Maine’s compulsory attendance rules.

The only reason the parents were denied the tuition assistance was the fact that the schools were sectarian. In other words, they were faith-based schools.

The majority of the Supreme Court Justices decided that Maine’s tuition assistance rule discriminates against religious schools and violated the Free Exercise Clause of the First Amendment. The Supreme Court also found that in this case, the religious affiliation of the school was not relevant and that “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

The majority opinion explained that the funds are given to supply education to students who do not have public schools available, and that is the primary reason for the funding. The fact that the funds support a religious institution is tangential.

Since the rules allow Maine to assist private schools that might charge much more than the maximum amount of assistance available, and who can accept some students and deny admission to others, the fact that a private school might have a religious affiliation is “unremarkable.” If Maine does not wish to support schools that are sectarian, it should not support private schools at all.

Related link: Supreme Court Lifts the NCAA Restraint on Athlete Benefits

The Minority Opinion

Justice Breyer, joined by Justice Kagan, wrote a dissenting opinion, and Justice Sotomayor agreed with most of that opinion. The minority opinion disagreed with the majority and stated that state tuition assistance to a religious school violates the Establishment Clause. The fact that those state funds go to a school that uses that money to fund a religious curriculum is in clear contrast to the Establishment Clause since the curriculum is not a neutral program.

It would be one thing to support a service that is not religious and happens to be supplied by a religious organization and another thing to directly fund a school that uses a part of its budget to offer a religious curriculum. Justice Sotomayor went further than Breyer, stating: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

In her dissent, Justice Sotomayor added that she believes the majority opinion is a violation of the Constitution and that she is concerned that the Supreme Court is changing the constitutional framework: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

The Future

The decision and the language used in the majority and minority opinions show full well where we are as a country. Some basic questions that have to do with core constitutional values are up for debate.

The growing secularization in some parts of the country has brought about a strengthening of religious discourse in other parts and a backlash to the growing wall between church and state. The minority opinion stressed that taxpayer money goes to support religious schools, and some taxpayers do not agree with that.

But on the conservative side, conservative taxpayers are forced to support public schools that teach a curriculum they do not agree with. In my opinion, we have reached a dead end on this specific question of school funding and parental input to curriculum, and perhaps it is time for more states to look at voucher programs.

The few states that give citizens the option to use vouchers in a school of their choice circumvent the significant stumbling block of taxpayers’ money that supports educational curricula those taxpayers might dislike. Parents’ choice will return autonomy to parents and allow them more input to their children’s education.

Dr. Ilan Fuchs is a scholar of international law and legal history. He holds a B.A. in Humanities and Social Science from The Open University of Israel and an M.A. in Jewish history from Bar-Ilan University. Ilan’s other degrees include an LL.B., an LL.M. and a Ph.D. in Law from Bar-Ilan University. He is the author of “Jewish Women’s Torah Study: Orthodox Education and Modernity,” and 18 articles in leading scholarly journals. At the University, Ilan teaches courses on international law while maintaining a law practice in several jurisdictions.

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