In 2010, former Governor of Alaska Sarah Palin made a comment that touched off a debate that has continued until the present day; “‘Lest anyone try to convince you that God should be separated from the state, our Founding Fathers, they were believers,’ Palin (said). ‘And George Washington, he saw faith in God as basic to life.'”
While Palin’s comments are truthful on their face, it is equally true that the First Amendment to the US Constitution reads, “Congress shall make no law respecting an establishment of religion.” Known as the Establishment Clause, this language has been used for years to support the notion of a “separation of church and state” – a phrase which does not appear in the Constitution, but is based on a “wall of separation” described by Thomas Jefferson in an 1802 letter replying to “Baptists in Danbury, Conn., who chafed under the authority of the established Congregational Church. ”
The idea of the Establishment Clause requiring a strict separation of church from state became enshrined in case law. “For example, U.S. Supreme Court Justice Hugo Black famously stated in Everson v. Board of Education that ‘[t]he First Amendment has erected a wall between church and state,’ and…'[t]hat wall must be kept high and impregnable.’” The majority view of the Establishment Clause can be summed up in this way; “The ‘Establishment Clause’ was intended to prevent any government endorsement or support of religion. This means no governmental favoritism of one religion over another or none. Just as there is no governmental favoritism for a Christian, there is to be no governmental favoritism for an atheist. This is called religious liberty.”
But is that the end of the analysis? What about the very next line of the First Amendment, which states that Congress is also not to make any laws “prohibiting the free exercise” of religion? Known as the “Free Exercise Clause,” this language “protects the religious beliefs, and to a certain extent, the religious practices of all citizens…(d)ecisions involving the free exercise clause have not been as controversial as those involving the establishment clause. It is clear that all individuals have an absolute right to hold any religious belief, which may not be interfered with by the government…application of such general prohibitions in cases that affected people’s religious practices (have) to undergo ‘strict scrutiny.’ That is, the state (has) to show that there was a very important government purpose to the law, which could not be met in other ways.”
In May, we examined the case of Sambrano v. United Airlines, a decision by the Fifth Circuit which concluded that United Airlines had placed an undue burden on the religious freedom of employees who had asserted religious objections to the company’s vaccine mandate. According to the Fifth Circuit, “United’s decision to place (these employees) on indefinite unpaid leave (was intended) to coerce the plaintiffs into violating their religious convictions…”
Now, the US Supreme Court has also weighed in on the very important topic of free exercise.
In the State of Maine, a program was established to provide school vouchers to parents who wished to send their children to private schools rather than public. However, this law specifically excluded vouchers for parents who wished to send their children to religious schools. Recently, in the case of Carson v. Makin, the US Supreme Court declared this law unconstitutional as an undue burden placed upon the free exercise of religion.
Writing for the majority, Chief Justice Roberts stated that The Free Exercise Clause of the First Amendment protects against ‘indirect coercion or penalties on the free exercise of religion, not just outright prohibitions’…we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” (Citation omitted.)
“(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 Court stated. “Maine’s decision to continue excluding religious schools from its tuition assistance program…thus promotes stricter separation of church and state than the Federal Constitution requires.”
This decision follows two other decisions from the Supreme Court that received less attention than Carson, but follow the same line of reasoning. As described by Justice Roberts in Carson;
“In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), we considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces made from recycled rubber tires. The Missouri Department of Natural Resources maintained an express policy of denying such grants to any applicant owned or controlled by a church, sect, or other religious entity. The Trinity Lutheran Church Child Learning Center applied for a grant to resurface its gravel playground, but the Department denied funding on the ground that the Center was operated by the Church. We deemed it ‘unremarkable in light of our prior decisions’ to conclude that the Free Exercise Clause did not permit Missouri to ‘expressly discriminate[] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.’”
Further, in “Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020) (we) 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…(t)he application of the Montana Constitution’s no-aid provision, we explained, required strict scrutiny because it ‘bar[red] religious schools from public benefits solely because of the religious character of the schools’…'(a) State need not subsidize private education,’ we concluded, ‘[b]ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.’” (Citations omitted.)
While these decisions may seem reasonable and consistent, the hysterical dissent of Justice Sotomayor would rule otherwise. “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” she writes. “(T)oday’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction…while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds. See…Bangor Christian Schools’ and Temple Academy’s policies denying enrollment to students based on gender identity, sexual orientation, and religion.”
For years, parents have fought for the right to educate their children as they see fit. Public schools have not always been the choice for many parents, especially those concerned about schools which teach children to question their gender identity and sexual orientation. These parents pay taxes which support those schools, while at the same time, having to pay out of their own pockets for an education that reflects the values they wish to inculcate in their children.
Maine tried to give parents a choice in their children’s education…up to a point. No religious schools, the state said. Meaning, a parent who wanted their child to have an education based on time honored, fundamental religious principles would be prohibited from Maine’s tuition assistance program, further meaning that parent would have to pay for their child’s tuition out of their own pocket while still paying taxes to support the school they did not use.
Justice Sotomayor (a graduate of Cardinal Spellman High School in the Bronx, by the way), believes that ordering Maine to give parents the right to send their child to a religious school is the establishment of religion. Is it? Or, as Chief Justice Roberts states, is it allowing for the free exercise of religious choice?
“Regardless of how the benefit and restriction are described,” Roberts wrote, “(Maine’s) program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.” Notice that unlike Justice Sotomayor’s dissent, Chief Justice Roberts opinion seems more neutral and evenhanded – a clue as to the more reasonable approach.
Judge John Wilson (ret.) served on the bench in NYC.
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