June 21, 2022, will go down in American educational history as a banner-day for parental rights in education and for the full flowering of the free exercise of religion. On that date, the Supreme Court of the United States delivered its decision in Carson v. Makin, a case originating in the State of Maine, concerned with its denial of tuition benefits for children attending faith-based private schools.
The case was decided by a 6-3 vote, with the majority opinion being written by Chief Justice John Roberts (concurring were: Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett). The dissenting opinion was offered by Justice Stephen Breyer, with Justice Elena Kagan and Justice Sonia Sotomayor (in part, with her own dissent).
It is interesting to note that all six “conservative” justices are products of Catholic schools; Gorsuch attended a Catholic school but is not a Catholic. Sotomayor is a graduate of schools of the Archdiocese of New York, however, she has distanced herself totally from Catholic positions (embarrassingly, when Cabrini High School [founded by none other than Saint Mother Cabrini!], was in dire straits, she never contributed a penny to its maintenance.)
Background of the Case and the Majority Opinion
It may surprise some to learn that the State of Maine has numerous jurisdictions without secondary schools, given its very rural nature. As a result, the State forged a plan, whereby parents could “sign up” with nearby schools, both public and private, to provide for the education of their children – at the expense of the municipality where they lived. To qualify, a school must fulfill certain curriculum requirements, including use of English as the language of instruction, as well a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1.” The program is amazingly open-ended, imposing no geographic limitation, such that parents may designate tuition payments to schools inside or outside the State, or even in foreign countries.
The majority opinion notes: “Prior to 1981, parents could also direct the tuition assistance payments to religious schools. . . . That provision was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment.” Such a position, however, was ruled to be unconstitutional by the Supreme Court in Zelman (2002), causing the Maine Legislature to consider rescinding its “nonsectarian” demand; the Legislature nonetheless stubbornly rejected that move.
The majority opinion offers the proximate origin of this case:
The Carsons sent their daughter to BCS (Bangor Christian Schools) because of the school’s high academic standards and because the school’s Christian worldview aligns with their sincerely held religious beliefs. . . . The Nelsons sent their son to Temple Academy because they believed it offered him a high-quality education that aligned with their sincerely held religious beliefs. While they wished to send their daughter to Temple Academy too, they could not afford to pay the cost of the Academy’s tuition for both of their children.
While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza. Espinoza held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination,” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at the religious schools of their choosing.
And to the present case: “Maine bars BCS and Temple Academy from receiving funding ‘based on the religious use that they would make of it in instructing children.’” With no small degree of pique, Justice Roberts observes:
In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. See Sherbert v. Verner, 374 U. S. 398, 404 (1963) (“It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”); see also Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947) (a State “cannot exclude” individuals “because of their faith, or lack of it, from receiving the benefits of public welfare legislation”). (emphasis added)
The opinion goes on to cite two of the most recent decisions of the high court:
Trinity Lutheran , wherein the Court declared such religious discrimination to be “odious to our Constitution” and Espinoza , wherein the Court determined: “A State need not subsidize private education, [b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Roberts connects the dots: “By ‘condition[ing] the availability of benefits’ in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—‘effectively penalizes the free exercise’ of religion.”
Roberts also takes direct aim at the dissenting opinion:
Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.
Beyond that, Roberts writes: “The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the ‘private school’ must somehow provide a ‘public’ education.” He goes on:
Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice. Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.
Yet again: “As we held in Espinoza, a ‘State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” The opinion underscores that it is not a disqualifying characteristic that faith-based schools “believe faith should ‘permeate’ everything they do.” This remark is critically important because, very frequently, opposition to aid programs has pivoted around whether or not our schools are “irremediably” pervasive, so that “religion” was not merely an isolated course. This decision makes it clear that we need not segregate our values to one class period a day. On the contrary: “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” As a matter of fact, lest we move in the direction of governmental interference in the internal workings of a faith-based school, we read: “Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism.”
The majority opinion ends thus:
Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
The Minority Opinion
Justices Breyer, Kagan, and Sotomayor dissented from the majority opinion, with Breyer writing the minority opinion (and Sotomayor adding a codicil of her own).
At the outset, the minority accuses the majority: “The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.” What they are referring to is the so-called “non-establishment” clause of the First Amendment, namely, that Congress cannot create a state or national religion – the historical, clear and proper interpretation of the words of the text. For decades, secularists have attempted to twist those words essentially into a banner for governmental hostility to religion and religious influence. The minority justices fail to accept the plain truth that the “non-establishment” clause exists, precisely to safeguard the second clause, namely, freedom of religion (not freedom from religion), and thus rightly called “the first freedom.” The same justices also seemingly forget that, in Torcaso v. Watkins (1961), the secular humanism they are touting was declared to be a religion, entitled to First Amendment protection. However, if it is protected by the First Amendment, it must also live under its strictures.
It is no accident that the minority opinion relies almost exclusively on cases which evinced hostility toward religious freedom, with them all emerging from the same era of jurisprudence: Engle (1962), Abington (1963), Walz (1970), Nyquist (1973). It is likewise significant that this opinion has recourse to the word “risk” seven times, so as to raise the specter of possible religious warfare, should any favor be shown to religious bodies (not to any one in particular – which would fall afoul of the “non-establishment” clause) – but for all, equally.
In the most absurd section of this opinion, the justices assert that “distinctions are important,” with which no one could disagree. However, they proceed to argue that no one can discriminate against a religious body’s “status” but could have serious questions about its “use.” In other words, a religious institution is free to exist, but not free to practice what it believes!1
They also muddle the Maine law, even while accurately quoting it, that is, that the sponsored form of education must occur “at the public school or the approved private school of the parent’s choice.” The private schools involved in the case were “approved” by the State accrediting body. The justices, however, add an element to their calculus, which they find offensive, but not found in the legislation: The schools in question “also teach students to accept particular religious beliefs and to engage in particular religious practices” – as though that eviscerates their ability to fulfill the legitimate interests of the State (which has never been alleged). In other words, those schools do everything required by law – and more, not less! However, the justices deem the following findings to be offensive: “. . . in science class, students learn that atmospheric layers ‘are evidence of God’s good design.’”
And: “‘ help[ing] every student develop a truly Christian world view by integrating studies with the truths of Scripture. . . In mathematics classes, for example, students learn that ‘a creator designed the universe such that one plus one is always going to be two.’” Of course, what the justices find so horrifying could be said about any authentically Catholic school as well. Seemingly, they do not consider the “world view” of the government schools to be problematic – although they certainly promote the religion of secular humanism, which conclusion the justices refuse to acknowledge, rather declaring that “public” schools “are religiously neutral.”
The minority opinion continues on its way of pitting faith-based schools against the supposedly “neutral” government schools by suggesting that what goes on in the religious schools “would cause a significant number of Maine citizens discomfort or displeasure.” How about the “discomfort or displeasure” experienced by thousands upon thousands of parents hostage to the government schools, who are revolted by the outrageous programs of sex education or critical race theory to which their children are subjected?
The fundamental problem is that these justices have identified valid educational objectives with the policies of the government schools. I have always found an analogy useful in such discussions. When the State determines that a person is in need of food stamps, that person is given a voucher which can be “cashed in” at any grocery store at all. The State does not say the client must frequent Shop Rite, rather than Whole Foods; nor does the government have any say in the running of grocery stores. The legitimate state interest is that the person be fed, leaving the choice of venue to the person in need. Similarly, the legitimate state interest in education is that a child emerge a literate, informed person. How that is accomplished is best determined by the child’s parents, who are – and always remain – the primary educators of their children.
Ironically, Breyer ends his opinion, quoting himself in Zelman, with the following observation: “At bottom, there is almost no area ‘as central to religious belief as the shaping, through primary education, of the next generation’s minds and spirits.’”
Then follows the dissenting, concurring opinion of Justice Sotomayor. She leads off with reference to “the wall of separation between church and state that the Framers fought to build.” To the credit of Breyer, he never attempts to ground his opinion in that discredited image; in point of fact, that expression does not appear in any “founding” document, but in a private communication of Jefferson to the Danbury Baptist Association, prevailing on the President to declare a national day of fasting. To be sure, that metaphor has taken on a life of its own, but one entirely uncalled for in terms of true jurisprudence.
Sotomayor notes that the current case takes its place in light of recent cases dealing with this topic – all favorable to the advancement of religious freedom. Rather blithely, she speaks of parental freedom of choice to decide on the most appropriate educational environment for their children, however, failing to acknowledge that that right can only be exercised by those who have the ability to pay for the exercise of that right, oblivious to the insight of constitutional scholar, Jesuit Father Virgil Blum, that “a civil right penalized is a civil right suppressed” (the very logic behind the invalidity of the “poll tax” in the South, levied, precisely, to suppress the voting franchise of poor blacks).
Sotomayor goes on to pillory the Court’s “evolutioniz[ing]” of its interpretation of the Free Exercise clause. In reality, the more recent decisions are no more or less than a “return to the sources,” where we learn that – at the Founding – all schools were denominational schools, and all were publicly funded. Like Breyer, she resorts to fear-mongering, with reliance on the very hostile cases already noted: “It [the majority opinion] reaches that conclusion by embracing arguments from prior separate writings and ignoring decades of precedent affording governments flexibility in navigating the tension between the Religion Clauses.”
On the contrary, the more recent decisions, relying on the Everson case of 1947, ground their reasoning in the so-called “child-benefit” theory; interestingly, Everson came to the right conclusion, while using the wrong jurisprudence. Pursuing the same illogical trajectory, she asserts: “As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion.” As I have already pointed out, such a view is totally ahistorical.
She ends her very poorly argued opinion with the throw-away line: “What a difference five years makes.” We could say the same in regard to decisions like Obergefell.
A bit of historical perspective
The Catholic drive for educational parity and equity began under the indomitable Archbishop John Hughes of New York (nicknamed “Dagger John” by his foes), who reigned gloriously from 1842 to his death in 1864. Hughes maintained that Catholics were subjected to “double taxation,” paying for a school system that was irredeemably Protestant (thus jeopardizing the souls of Catholic children) and then paying for their own schools. He brought his fight to the Common School Board of the City, fought bravely and well, but lost, with the result that for nearly two centuries, Catholics have borne the burden of “double taxation.”
In 1875, following on a suggestion of President Ulysses Grant, Representative James Blaine (of Maine, ironically enough!) proposed an amendment to the Constitution banning any form of government funding of denominational schools. Although the effort failed at the federal level, over the course of time, nearly forty states adopted some version of that proposal. Its motivation was undeniably rooted in the anti-Catholicism spawned by the Know-Nothings and KKK.
Hence, opposition to parental freedom of choice in education has deep roots in anti-Catholicism. The first Supreme Court decision broaching this topic was Pierce v. The Society of Sisters (1925). The State of Oregon attempted to shut down the State’s Catholic schools. The Sisters of Providence fought against the injustice, having the case land in the lap of the Supreme Court, which slapped down Oregon’s effort to create a monopoly in the field of education with the searing line: “The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Interestingly, that line found its way into the education encyclical of Pope Pius XI, Divini Illius Magistri (1929) – the only U. S. Court decision ever cited in a papal document!
The first case of the modern era directly dealing with faith-based schools – actually, specifically Catholic schools, was the Everson case of 1947, which concerned a municipality’s desire to fund the busing of Catholic school students in a Trenton (New Jersey) suburb. As alluded to earlier, the Court allowed the busing program to continue because of the benefit to children, irrespective of the type of school they attended. That said, the justices enshrined a version of Church-State relations which was quite defective, from an historical point of view.
From 1968 forward, a host of cases found their way to the Supreme Court, resulting in tortured reasoning; for example, the Court determined that a state could provide text books (those used in government school districts) to parochial schools, but not maps (because a Catholic school teacher, ridiculously, might use a map to show the location of Rome and teach the children that Rome is where the Pope lives!). That absurdity led Senator Daniel Patrick Moynihan to ask if it could pass constitutional muster if a state provided parochial school pupils with an atlas – which is a book of maps!
Beginning in 1993, with the Zobrest decision, the Supreme Court launched onto a course correction, with numerous cases landing in the pro-school choice field and with the 2020 Espinoza case decidedly leading the way into a much more historically rooted and positive approach to the issue.
Where do we go from here?
The present case sounds the death-knell for Blaine amendments; no state legislator can declare that programs of aid for children in faith-based schools are unconstitutional, at either the state or federal level. In other words, the fig leaf has been removed.
It is providential that the two schools in the present case were not Catholic schools. Why do I say that? Because the embarrassing, historical anti-Catholicism could not be used to cloud the issue. That said, as in the pro-life cause, the Catholic Church has been in the forefront of parental freedom of choice in education, from Pope Pius XI to Vatican II, to John Paul II and the Compendium of the Social Doctrine of the Catholic Church.
Schemes to evade the clear ruling of the Court are already on the planning board.2 So, now it is incumbent on proponents of parental rights to form viable and intelligent coalitions; indeed, this intensely popular grass-roots movement can advance through very healthy ecumenical and interfaith cooperation, and with completely secular allies. That said, we must be extremely vigilant regarding the kinds of aid programs that we support.
Under no circumstances should we countenance direct financial aid to our schools; on the contrary, any aid program ought to be directed to parents for two reasons: first, that underscores that parents are the primary educators of their children and thus the ones given the means to have unfettered freedom to direct the education of their children; second, direct aid to our schools would subject us to total governmental control; the Canadian situation should give us ample reason to pause: Forewarned is forearmed.
At the same time, we must be prepared for massive opposition from the public school teacher unions, with their accompanying programs of disinformation. As we have learned over the past few years, the teacher unions are not concerned with the welfare of children but with their own self-preservation. Carson breaks the back of the education monopoly, replacing it with educational parity or equity, that will bring about healthy competition, benefitting all. By a happy coincidence, the very same week that this Supreme Court decision was handed down, the State of Arizona passed a school voucher program, awarding parents up to $7000 per child to be used at any school of the parents’ choice; the amount is significant for Catholics because the average cost of elementary school tuition in the country hovers around $5000 (high schools around $10,000).
For the moment, the Carson decision gives us great cause for rejoicing, and I suspect that “Dagger John” is smiling down on this happy turn of events.
1Reacting to this suggestion, Cardinal Timothy M. Dolan of New York, chairman of the USCCB Committee for Religious Liberty, and Bishop Thomas A. Daly of Spokane, chairman of the USCCB’s Committee on Catholic Education, said the high court “rightly ruled that the Constitution protects not just the right to be religious but also to act religious. . . . This commonsense result reflects the essence of Catholic education.”
They went on to say:
“The court has again affirmed that states cannot exclude religious schools from generally available public benefits based on their religious affiliation or exercise. . . . In our pluralistic society, it is vital that all people of faith be able to participate in publicly available programs and so to contribute to the common good.”
2Aaron Tang, writing in the New York Times on June 24, thinks the Maine Legislature has already out-maneuvered the Court:
The legislative fix crafted by Maine lawmakers offers a model for lawmakers elsewhere who are alarmed by the court’s aggressive swing to the right. Maine’s example shows that those on the losing end of a case can often outmaneuver the court and avoid the consequences of a ruling.
By enacting its law, Maine was able to assure its taxpayers that they will not be complicit in discriminating against L.G.B.T.Q. students, because private schools that discriminate will be ineligible for public funds.
The Court, however, has said in absolute terms in this decision that no such requirements can be levied against faith-based schools, so sleight-of-hand tricks will not work.
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We read: “The present case sounds the death-knell for Blaine amendments; no state legislator can declare that programs of aid for children in faith-based schools are unconstitutional, at either the state or federal level. In other words, the fig leaf has been removed.”
“Fig leaf”? On the other hand, we still live in bizarro-world where a new Justice has been confirmed with liberal rejoicing because she is a woman and, yet, who cannot commit to simply defining “woman.”
A future case pitting common sense and religious freedom against LGBTQ ideology might well turn on restroom protocols…and whether one is imposing micro-aggression against non-binaries by leaving the unisex toilet seat up instead of down, or vice versa…
We can count on the famously non-committal (a viral form of non-binary) Justice Ketanji Brown Jackson to pen the dissenting opinion that–in the interests of uniform ideological neutrality and despite “uncomfortable” outcomes–all toilet seats must be removed altogether. Likewise, all differentiating restroom labels and restroom doors! The seamless logic is welcoming, unbiased, and irrefutable!
Which in a rational world recalls the adage: “when you find yourself in a hole, stop digging.”
The liberal “Hocus-Pocus” that SCOTUS has been a part of for over 50 years.Is finally
being swept into the dust bin.The Founders & Constitution are the Broom and the Dustpan that the current Judges are using to clean-up the massive liberal mess.
We should all understand that our recent good fortune SCOTUS decisions rests on a thin thread. Justices Alito and Thomas are in their 70″s. If something would happen to them we could easily be back in a situation of a liberal justices majority. We cannot count on Roberts. We should be happy about recent abortion, school, and EPA ( USCCB opinion not withstanding) decisions. But these decisions do not represent a great change in popular opinion, but rather our good fortune in the justices appointed by president Trump. It is indeed a thin thread in view of proposals of filibuster removal and court packing. We have won victories, but we will have to continue fighting to hold them.
The kooky logistics of LGBT mentality [inclusive of the entire spectrum of modern liberalism] defies rational arrangement. Why asking what a woman is cannot be defined. Reducible to absurdity none of the kooky labels can be defined. Definition requires identification of essences. What for example is the essence of pan sexual, or bi sexual?
As I said elsewhere when the First principle of all existence is abandoned all order beneath collapses. All principles require first principles meaning those which lead a conclusion. Without the primary principle of the existence of God the chain of order crumbles from principle to principle since principles with definitive ends [by inference to the First Principle of all existence] cease to exist and inexorably become subject to discussion and arbitrary opinion [one opinion is held as good as another]. So no liberal is capable of stating coherently and definitively what a woman is. Which is why justices Sotomayor and Brier, brilliant in their own right, are unable to distinguish between Establishment of religion and Religious freedom.
“Which is why justices Sotomayor and Brier, brilliant in their own right, are unable to distinguish between Establishment of religion and Religious freedom.” My gratitude for your insightful observation in stark contrast to my musings that were getting me no where.
I don’t think either Bryer or Sotomayor is “brilliant”; Sotomayor, to be sure, is anything but. And the new one on the bench will take over from Sotomayor as the dumbest!
Father, I actually agree especially on Sotomayor. I was trying to be kind for a change.
No, you’re wrong. Now that you are free to use my tax dollar to teach religion, how would you feel if your tax dollars had to go to a religious school that taught a Sharia law curriculum or a satanic school.
That’s the price of living in a pluralistic society.
A follow-up to my most recent reply:
If Americans in general, Christians in particular, and specifically Catholics, were having children as God intended, we would not have to worry about a Muslim take-over of the country!
Its NOT just religion which is being taught, which is part of the point. They are being taught English, math , science, social studies, etc, just like any student. If they attend a religiously based school, they will also get some bits religion mixed in . So what? Are you suggesting that our society is in such good order and so peaceful that moral teachings are not needed? The rates of crime and violence in secular society beg to differ. Its my opinion that since religion has been expunged from our schools ( which would horrify our early Pilgrim fathers who most CERTAINLY mixed church and state), the country has gone to hell. I think it is a given that public funds should NOT be used to support any religious schools which advocate violence and the suppression of others as part of their religious theology.That is common sense, although common sense is often sorely lacking in government as we see from the many leftist attorney generals who refuse to prosecute violent crime around the nation. Hopefully, that situation is a result of temporary insanity among the electorate and will be remedied soon.