The Washington PostDemocracy Dies in Darkness

Opinion No wonder Christian nationalists wanted these justices on the Supreme Court

A man holds a cross outside the Supreme Court on May 5. (Jabin Botsford/The Washington Post)

Carson v. Makin might not be the most high-profile case the Supreme Court will decide this term, but its decision requiring Maine to provide funding to private, sectarian schools starkly demonstrates the right-wing justices’ increasing affinity for the views of Christian nationalists.

Chief Justice John G. Roberts Jr. summarizes the case in his majority opinion for the court: “Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend — public or private — and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are ‘nonsectarian.’”

For most people, this poses no problem. Parents’ right to free exercise of religion is preserved because they can choose to send their children to religious institutions; the prohibition against establishment of religion is secured because taxpayers are not forced to fund religious schools, whether they are Christian, Jewish, Muslim or of any other faith. But the court’s majority disagreed and ruled that Maine’s refusal to subsidize sectarian schools is a violation of the free exercise clause.

The reasoning is perverse. Worse, it is a sign of the court’s inability to distinguish constitutional principles from the desires of Christian nationalists who seek to use the power of the state to impose their views, from using taxpayer dollars to fund religious entities to imposing the Christian doctrine that “life begins at conception” on others and forcing women to have birth.

Follow Jennifer Rubin's opinionsFollow

Roberts asserts, “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.” But of course it does. That is precisely what the founders had in mind when they prohibited establishment of religion. A state can use funds to build a community center, for example, but not a church. That’s not “discrimination”; it’s a line that prevents the state from embroiling itself in sectarian matters and from sectarian strife.

The court’s dissenters powerfully refute the majority’s bizarre reasoning. Justice Stephen G. Breyer writes that the “play” between the establishment and free exercise clauses “allows a State to further antiestablishment interests by withholding aid from religious institutions without violating the Constitution’s protections for the free exercise of religion.” As he explains, there is tension between the two clauses insofar as an absolute application of one would violate the other.

What is at issue here is religious diversity, Breyer writes:

This potential for religious strife is still with us. We are today a Nation with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist. … People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The Religion Clauses were written in part to help avoid that disunion. … In a word, to interpret the two Clauses as if they were joined at the hip will work against their basic purpose: to allow for an American society with practitioners of over 100 different religions, and those who do not practice religion at all, to live together without serious risk of religion-based social divisions. …
The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion.

In this case, Breyer explains, lawmakers “did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices.”

But that constitutional framework is not at all what right-wing Christian nationalists have in mind. To them, refusing to subsidize religious schools is to disfavor religion. Such logic would eradicate most previous prohibitions on state funding for religious education.

Breyer warns, “We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education.” He then poses this question: “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?” It seems that is precisely what the court’s right-wing majority and its boosters want.

As she is wont to do, Justice Sonia Sotomayor, in a separate opinion, calls out the majority in blistering terms. “[T]he consequences of the Court’s rapid transformation of the Religion Clauses must not be understated,” she writes. “From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction.”

Sotomayor concludes, “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.” All defenders of pluralistic democracy should share her concern.