The case that tests the Supreme Court’s limits on church and state


If a state pays for the secular education of a student, should it also pay for the religious education of students? This is the question asked in Carson vs. Makin, a case currently before the Supreme Court.

Maine, with a large acreage and a small student population, pays for students to attend private and secular schools in districts that do not have a public high school. Now, some religious schools are demanding taxpayer money for their students, regardless of the provision in the Maine constitution that prohibits public funding of religious education.

Both parties recognize the fundamental legal principle that government must be “neutral” (Thomas Jefferson used the term “impartial”) vis-à-vis different religions or between religion and no religion. The question is how to apply this principle.

Maine maintains that it is prepared to pay for all schools offering the same education as in public schools, secular education with a prohibited curriculum. The state is “neutral” as to who it pays for such secular education, but it is not obligated to extend shopping with taxpayer dollars to an essentially different commodity, religious education.

After all, if an “education” qualifies, a student might argue that the state should pay for her sports car, which provides her with some kind of education. Or that he should be paid to learn exotic dance or massage. If a state, in the name of neutrality, must expand its purchases beyond a specified secular education to include religious education, does this mean that it must provide other forms of “education” ? And will court conservatives, who demand deference to states when it suits them, ignore Maine’s interest in its constitutional demand to ban funding for religion?

But there is a second problem, arguably even more important behind this case: if a law is found to be neutral, does that isolate it from a challenge under the First Amendment?

Laws in Maine, for example, prohibit schools that receive public funds from discriminating on the basis of religion or sexual orientation. If private religious schools ask for public funds in the name of neutrality, will they be bound by these neutral demands? Can they fire LGBTQ teachers? Can they require teachers to profess their particular religion?

In a number of cases, the Conservatives at the Supreme Court have tried to break down the separation wall protected by the principle of neutrality. For example, if neutral laws prohibit discrimination based on race and sexual orientation, can a private company demand an exemption on religious grounds? Can a bakery refuse to bake a cake for a gay couple? Can a wedding venue refuse to rent to a biracial couple? Can a registrar refuse to issue marriage licenses to a Judeo-Christian couple? (While recent cases focus on anti-LGBTQ discrimination, the same principle is at play in racial and religious discrimination.) This would imply not neutrality, but a preference for religion.

Jefferson made it clear that if a law is neutral or impartial, no one is entitled to a religious freedom exemption. He used the example of a ban on slaughtering lambs during a war (to encourage the production of wool and meat). If the government prohibited the slaughter of lambs for religious ceremonies (but not for other purposes) or prohibited Jews from slaughtering lambs, these would not be neutral regulations; at first glance, they violate the First Amendment, but there is no constitutional right to religious exemption from neutral law.

Laws should be neutral and generally aimed at an “object of civil government”, to use Jefferson’s term, “acts against peace and good order.” But once they do – and anti-discrimination laws come firmly within the bounds of legitimate government regulation – no one can claim a religious exemption based on personal beliefs. “Such a system would court anarchy”, Judge Scalia Explain in the case of control.

Jefferson viewed neutrality as a way to protect religious freedom as well as religion and government against the corruption of mixing church and state. Eighteenth-century evangelicals agreed. If the court demands that Maine fund religious education, will it apply the principle consistently and reject challenges to anti-discrimination laws?

John A. Ragosta, Ph.D., JD, (@johnragosta) is a fellow of Virginia Humanities and author of “Religious Freedom: Jefferson’s Legacy, America’s Creed”.

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