In this bonus episode Liz and Rebecca recap the case, which was discussed in Episode 1, and review the decision handed down by the Supreme Court at the end of June. They also discuss the impact this has for the separation of state and church moving forward.
Liz Cavell: Hey listeners. Welcome back to We Dissent. This is Liz Cavell.
Rebecca Markert: And I’m Rebecca Markert.
Liz Cavell: And this is a little bonus episode just to update you all on the decision that came down in a case that we discussed way back in our first episode, it’ll just be Rebecca and I today, we are without Alison and Monica. And that’s just so that we could get something up as quickly as we could to update you on some of these case outcomes. So, Carson versus Makin was the case that we talked about in episode one. And if you recall, this was a case that came out of the state of Maine that had to do with Maine’s system for providing public school, secondary education to students that reside in districts that don’t have enough kids to operate their own secondary public school. And if you remember the way that Maine did this in some school districts was to pay tuition to the school of a family’s choice to absorb their student and the criteria for which schools could participate and receive that funding excluded sectarian schools. So Maine did not want to give direct public funding for public school education to sectarian religious schools in keeping with the Establishment Clause and their anti-establishment interests. But there were two families that wanted to send their students to really Christian schools in Maine. And those schools directly conflicted with the criteria set forth by Maine. So they sued, this made its way up to the Supreme Court after lower courts found in Maine’s favor. And so obviously that was a bad sign. And this is of course, an ultra conservative Christian plaintiff, which you’ve heard us talk about, have become favored plaintiffs for this Supreme Court.
Rebecca Markert: And if you recall from that first episode, the title of that episode is actually "The Sleeper Case, Carson v. Makin." And I find it interesting because it remained the sleeper case throughout this term. The decision in this case was handed down on a Tuesday after the federal holiday for Juneteenth, we were digesting that information and by Friday, the court had handed down its decision in the Dobbs versus Jackson case, which of course overturned Roe v. Wade. And so that became the news of the week and Carson kind of got left behind again. It was kind of this huge decision that upended decades of precedent, again, under everybody’s radar. I thought that was interesting that it remained the sleeper case throughout, but the court did decide six to three in an opinion, by Chief Justice John Roberts, that when states and local governments choose to subsidize private schools, they must allow families to use those taxpayer funds to pay for religious education.
Liz Cavell: You will be forgiven if you do not remember anything from episode one, and also you didn’t notice all these hellacious upending decisions that happened the same week as Dobbs and Bruen and all the other disasters of decisions. But, we did discuss in our episode one, what our own predictions were for Carson. And I think that we pretty much predicted that this would come down a long party line six to three, that you’d get an ultra conservative majority finding for the families and that we would see some concurrences that were really strong in favor of basically how bad the discrimination interest is here when public funding is not going to only you, you know, ultra sectarian schools. And that’s pretty much exactly what we saw.
Rebecca Markert: One of the things that I think is also interesting from this case, Chief Justice Roberts is the one who wrote the opinion. He’s also the justice who wrote the majority opinions in the Trinity Lutheran case, which involved funding in the state of Missouri, where they were funding secular projects like resurfacing playgrounds, and Trinity Lutheran operated a preschool and wanted to use those funds to resurface its playground. But of course it’s a religious organization. And in that opinion, Roberts wrote that the state of Missouri, if they were doing, if they were giving out these funds, they also had to allow religious organizations to participate in that program. That decision was seven to two sort of a shocking decision from 2017. Then three years later, we had the case Espinoza v. Montana Department of Revenue and Roberts. Again, wrote that decision in the Espinoza decision.
The court rules in favor of the Christian plaintiffs in that case and says that if the state of Montana is going to provide funding, it cannot exclude religious organizations. In fact, it’s discrimination, if you do that. So in those cases, they kind of mentioned, or kind of inferred that there is a distinction between the status of the organization, whether the organization is a religious organization or a secular organization versus the use of those funds. If the funds presumably were going to fund religious activities or worship, it was understood in 2020 that the state could not give out those, that money for that type of activity. Obviously the constitutional principles that we’re all aware of is that we do not fund religious activities. We do not allow our taxpayers to fund religious activities. So John Roberts writes that opinion, rules in favor of the plaintiffs there, but seems to maintain this status versus use distinction. Fast forward to this year, 2022 and he writes again, this decision in Carson, and he says everything that I said about status versus use, like that’s not practical, which is something that we said way back then, that you can’t really make a distinction between status and use, especially when you’re talking about money. But he says that there’s really no distinction between the two. And if the state is going to provide funding for whatever purpose here, religious education, then they cannot exclude religious organizations or churches, even when they are planning to use that funding for religious activities, instruction or worship. And even if they are schools or institutions that discriminate.
Liz Cavell: We talked about this in episode one, when we were sort of doing our predictions on what they could do in this Carson decision, we talked about whether or how they would preserve what the Establishment Clause still allows states to do in terms of not giving funding to religious actors. And in this decision, it, they didn’t really leave that much daylight there. You know, it was it again. And the dissent pointed this out. It was this just kind of new perversion of the First Amendment where the Free Exercise Clause and the government not discriminating against religion, or Christianity became the primary focus of the analysis and the Establishment Clause interests are just ever shrinking and shrinking to the point where the court really doesn’t care that much about Maine’s interest in not forcing its taxpayers to pay for religious education. That would be the Establishment Clause interest. So, and we can talk about the dissents too, because again, these were some powerful dissents, like many this term two separate dissents in this case, one was written by Justice Breyer and the other was written by Justice Sotomayor. I’ll start with Breyer’s dissent and he really gave some kind of powerful pushback on the idea I was just talking about, which is that the First Amendment has both the Establishment Clause and the Free Exercise Clause and that they are supposed to, and have four decades been recognized by the Supreme Court as working together and that courts should always be sort of recognizing the play and the joints between the two clauses and play in the joints has been a phrase used by the court for decades to describe how the analysis has to balance the interests that exist in the Establishment Clause against the interests of individuals in the free exercise clause.
And the case here just pretty much does away with the Establishment Clause interest and only focuses on the free exercise interests. And the majority here saying that states must give funding to religious schools. If they fund public schools or non secular private schools in the same scheme is just another lurch to the conservative. It’s a big difference saying states must fund religious schools and states may be compatible with the Establishment Clause, give funding to religious schools. One other point that Breyer was raising is that this goes way beyond Trinity Lutheran. Like Rebecca was saying just a few years ago, this court decided Trinity Lutheran and a couple years later decided the Espinoza versus Montana case. And Breyer’s pointing out that this is different than what happened in Trinity Lutheran. So he’s basically trying to salvage something of the status use distinction, right in Trinity Lutheran schools were excluded from the funding and he voted in the majority in that case because they simply because, and only because they were owned controlled affiliated with religious organization, it was a preschool or a daycare type of, of entity that was affiliated with a church. But here, you know, Maine was choosing not to give funds to schools whose whole entire existence is the indoctrination of kids in every subject through a religious lens. So he was pointing out that this is, this goes way further than Trinity Lutheran and what the Court has done before. And the same with Espinoza. This goes way beyond Espinoza for the same reason, there is a difference between programs that in his view funding programs that exclude religious actors simply because they have religious affiliation versus states refusing to give funds where the funds will be used to promote religion, teach religion, and advance religious views
Rebecca Markert: And to his credit. Yes, he moved from the majority in Trinity Lutheran to the dissent in Espinoza, because he did want to maintain this sort of semblance of status versus use distinction. And even after Espinoza came down, I think a lot of our organizations were like, that’s not really practical. For years we’ve all been saying that just giving funds to a religious institution, even if you do that for a secular purpose of resurfacing, a playground, or, you know, redoing a bathroom or something like that, obviously frees up funds within their budget for those really religious purposes so that they can have, I don’t know, better music or better Bibles in their pews or something like that. You know, money’s fungible like that and you can’t really determine what they’re using it for and so the status versus use distinction, at least in my view was always sort of one that I think was just a weird parameter that courts sometimes use and was never gonna be helpful and obviously lead to more litigation down the line. But obviously in this case, Carson, John Roberts just blows that distinction out of the water. And it doesn’t matter if you’re providing a funding program that is going to be generally available to organizations or individuals, and you cannot exclude religious organizations to do so is discrimination against religion. But what Liz was talking about earlier, Justice Breyer was talking about this play in the joints idea that these clauses work together. And here’s a quote from his dissent that kind of explains that a little bit. He said: "In my view, Maine’s nonsectarian requirement falls squarely within the scope of that constitutional leeway." He also is a Justice that’s big on neutrality. He believes that the government should be neutral towards religion. And we saw that come up in many other cases, including the Ten Commandments cases that he wrote back in 2005. But here’s another quote from his dissent that talks about just the, the importance of the government being neutral. And what the constitution says about that. He writes: "The Religion Clauses thus created a compromise in the form of religious freedom. They aspired to create a ‘benevolent neutrality’—one which would ‘permit religious exercise to exist without sponsorship and without interference.’ ‘The basic purpose of these provisions’ was ‘to insure that no religion be sponsored or favored, none commanded, and none inhibited.’ This religious freedom in effect meant that people ‘were entitled to worship God in their own way and to teach their children’ in that way. We have historically interpreted the Religion Clauses with these basic principles in mind."
Liz Cavell: Right. And I just wanna also say to Rebecca’s point a few minutes ago about how obviously untenable, the court’s kind of project to distinguish between status and use and insist on government funding, going to religious organizations when it’s just a status based distinction. We have Justice Sotomayor dissent and Justice Sotomayor basically agrees with Justice Breyer on his points in dissent, but she writes separately to basically say, I told y’all, this was gonna happen. Justice Breyer you are in the majority on all of those other cases and basically I’m writing to say, this court never should have started down this path, like from Trinity Lutheran on. And she dissented in Trinity Lutheran way back and all along the road, she always believed that the government action in refusing funding in those other cases was perfectly appropriate under the First Amendment and both clauses, the, the leeway between the clauses that Breyer was just referring to in the quote that Rebecca gave. So, she agrees with Justice Breyer that Trinity Lutheran and Espinoza are distinguishable from what Maine was doing in this case. Because again, pointing out that it’s really significant that Maine is trying not to fund actual religious education like these conservative schools that you might remember Rebecca describing in episode one, the conservative Christian ideology flows through every single part of the education at these schools. It’s not just that they are religious schools or parochial, or that they teach religion, it’s that they approach the students’ education in every way and every subject through a lens of Evangelical Christianity. And that is different than what was sort of sanctioned in Trinity Lutheran and Espinoza.
Rebecca Markert: We should probably talk here about one of the most concerning things about this majority opinion is that estate’s, anti-establishment interest, this interest to keep church and state separate is not one that is a compelling interest that would survive constitutional review.
Liz Cavell: The court’s basically saying to the states, you can’t prioritize a greater anti-establishment interest than what we say the federal constitution requires. Maine is also saying, Hey, we have a state constitution and it also embodies these anti-establishment of religion, values, and principles. And that’s our state interest. We think that’s compelling. And the court is saying well, when it comes to someone saying, but my free exercise, right? Your interpretation of what your Establishment Clause requires, can’t exceed what we say the Establishment Clause requires on the federal level. And oh, by the way, what we think the Establishment Clause requires is barely anything, it’s just a complete departure and Justice Sotomayor dissent really, I think recognizes the alarming nature of what’s going on in this case, again, a sleeper case that unfortunately, because it’s one of many, isn’t getting a ton of attention, but it is a real shrinking, even more to the point of being almost nothing, the separation of church and state, and even just the a state’s ability, individual state’s ability to protect the separation of church and state. And I, one of, I think her best quotes is that last line of her dissent, which is Justice Sotomayor saying: "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."
Rebecca Markert: And if you follow our Facebook and Twitter pages, I took that quote and we made it into a graphic because it was such an amazing quote, the morning that the decision came down and we’re all racing to read through the opinion and put out our statements, our team, of course, rightly so was focused on Breyer’s dissent, because it was longer and had a lot in it. And I kept saying, let’s not forget Sonia Sotomayor because she was amazing in her very short dissent. I think it was only five pages long. It wasn’t very long at all but that line and she just called it out straight. She said, this court continues to dismantle the wall of separation between church and state that the framers fought to build. And of course, as we go on in the term and see other cases come down, it gets worse.
Liz Cavell: Yeah. And that, those quotes basically sum up really an honest reflection of what the court did in this case. It’s basically that quote that I read, states can’t offer public funding without offering the same funding to religious exercise, not just religious organizations, but actual religious, the exercise of religion. And it, it doesn’t matter if the state feels more strongly about the separation of church and state than the United States Supreme Court. And that’s not the way it’s supposed to be.
Rebecca Markert: And we are lawyers obviously. And whenever we look at these cases, we try to determine how narrow the decision is. I mean, what is going to be the greater impact of this decision? Everybody has been asking. Well, you know, Maine is a pretty unique situation. There are not a lot of states. In fact, there’s only two other states like Maine that have this system where they don’t provide public schools for secondary education in rural areas and have a funding scheme so that parents can send their kids to a secondary school. I think it’s Vermont, New Hampshire. So when you’re looking at it, you’re thinking, well, it’s not gonna have a lot of impact because there’s only three states in the whole country that have this type of scheme, but really it does have a broad impact because obviously there, there are many different types of voucher programs across the country. The court really is saying that not only may states devise these types of programs, but when they do, they must have religious organizations participate. So taxpayers now are really, for the first time ever, compelled to fund religious education. This is something that our founding fathers would not have agreed with right at all. And in fact, Thomas Jefferson wrote that it would be sinful and tyrannical to do so, to compel one of our citizens to fund religion for religious services or worship, that would be equivalent basically to a government compelled type thing.
Liz Cavell: I’m pretty sure also in context, Jefferson was talking specifically about taxpayers being taxed to fund religious education. That was something that our founders specifically detested. And that was part of what was being embodied in our First Amendment was a guarantee against that type of government sponsorship of religion, but you know, not much made of the historical and the tradition of anti-establishment in our nation. It’s weird.
Rebecca Markert: Well, and I mean, just that he phrased it the way that he did sinful and tyrannical, those are very strong terms to be using. And I feel like we can’t really be like he didn’t really mean it like that. I feel like he was pretty strong in his opinion that we should not be making our citizens pay for religious education. The other thing that I’ve been asked in this last week is, you know, so me as a taxpayer, am I now being forced to pay for religion that I don’t believe in? And the answer to that really is, well, if you live in a state with some of these voucher programs, yes-
Liz Cavell: You probably are.
Rebecca Markert: You probably are. But it also, even if you live in a state that doesn’t have this type of program for religious education, states are now incentivized to devise those types of schemes. And once they do, then yes, that money must go to religious organizations as well. So it could be happening to you even if you, you know, deem that you’re living in a safe state right now,
Liz Cavell: And it’s not just religious education, religious schools like this court is requiring this type of government sponsorship across the board. I mean, look at Fulton. Sotomayor is not exaggerating here, this is common. Like government money goes to non-profits, it goes to charities, it goes to different organizations that do community work and more and more you’re seeing courts saying those government entities must give that money to religious organizations that might be doing the same community work, but they’re doing it in a totally discriminatory way that most taxpayers would not agree with or agree to fund.
Rebecca Markert: And one of the things that a lot of people are saying too, is that well, okay. So if we have to make this funding available to all organizations secular or not that’s okay, because we can put all these restrictions on the funding. So if you’re gonna accept this funding, you then also have to meet these certain conditions. Like your teachers have to be licensed. You have to abide by non-discrimination rules that we’ve devised and things like that. In my opinion, that’s the next level of litigation here. Because we have seen religious organizations say, we want the money, but we also don’t wanna have to follow any of the rules that you guys are setting out. I mean, we still wanna be able to discriminate, we still wanna be able to do our thing, but yes, you have to give us money and if you don’t, you’re discriminating against us, but we also still get to discriminate in hiring LGBT teachers or expelling students who, you know, display non gender conforming behavior, that type of thing.
Liz Cavell: Right. And I mean, those kind of factual parameters existed in this case, but the court didn’t have to really make any decisions about what Rebecca is talking about. But I agree a hundred percent, Rebecca, that is the next frontier. There’s always a next frontier. Like there’s never, an end to what religious groups are going to demand in terms of privilege and special treatment. And when it comes to funding that is curtailed by anti-discrimination rules or educational standards, things like that. As quick as a state can move to do that, you can bet there’s gonna be litigation saying like, no, now you’re discriminating against us. Based on our sincerely held religious belief that gay people are evil and going to hell and you can’t do that. We don’t want that accountability, but we still get the funding. It’s just the, have your cake and eat it too legal argument that wins the day again and again at this court.
Rebecca Markert: And we bring up LGBTQ issues all of the time but as Liz just mentioned, it also will affect educational standards. So yes, they’re going to say no, it’s my sincerely held religious belief that the earth is flat and I’m not going to teach science in the manner that you State of Maine, State of California or whatever state it is. Want me to teach science because that’s not what I believe. And that is, your money’s going towards that too.
Liz Cavell: Yeah, there’s definitely no end to this type of constitutional analysis, you can’t see my scare quotes, but, leads. It’s this ever expanding view of what free exercise requires. There’s really no end to what we all end up funding in the long run.
Rebecca Markert: And I wanna be clear too. I’m not saying that states shouldn’t try that and shouldn’t pass those laws and shouldn’t attach certain conditions to the funding. I do think that when those schemes come up where the government is providing funding, and there are certain conditions attached to that funding, I do think that there are going to be religious organizations in schools that look at that and say, yes, we’re gonna abide by all of that because we want the money, but there are going to be other organizations like Bangor Christian in Maine and Temple Academy in Maine, where they’re not gonna want to abide by those rules and regulations. And they will sue. That remains to be seen how that’s all going to play out. But I do think, I mean, at this point, states should try to states those types of law. They have to, yes.
Liz Cavell: Taxpayers don’t wanna pay for discriminatory schools. And especially in places where states are trying to fulfill their obligation to provide public school education. We’re trying to give kids that live in districts with no school, school. Of course, we don’t want it to go to schools that discriminate and actually in actual school at issue in that case, I can’t remember if it was Bangor or the other one Temple, but one of them did not take funds from the state of Maine, even in the run up to this litigation because they didn’t want to be bound by state regulation or whatever strings would come attached to that government funding. So, I mean that school itself is probably emboldened to be like, oh cool, we won, we get the money and we get to keep doing what we want. And then it’ll have to go back to square one to see what states will do in that situation. And then of course be sued and then we’re off again.
Rebecca Markert: So another talking point that the other side has been putting out there particularly a lot this past week is taxpayer funds already go to different religious schools. Particularly when you look at higher education, we have religious colleges and universities that receive federal funding and college students who are looking for financial assistance. They’re able to get student loans, particularly Pell Grants, and they can take those funds and go to religious colleges and universities, which same situation they’re going to be having religious classes and religious instruction. And some of that religion may permeate every single class that that student takes. So how’s that different Liz.
Liz Cavell: So, I mean, first of all, there’s so many different ways that funding flows to schools. Like you mentioned FAFSA where students themselves apply for funding and use it at the school of their choice. And then there’s, there’s like Title IX funding. And there’s, you know, all this different types of federal funding that flows to universities, both private and public. But my understanding of much of that funding is that we’re in territory where those schools are agreeing to abide by anti-discrimination laws that are set by the federal government. Like at the university level, we haven’t seen this push by religious schools, religious affiliated schools, to be able to take federal funding yet, not comply with any federal requirements that are attached to that funding. And there are schools that are like uber Bible colleges that just absolutely will not do any of those things, but they don’t take federal funding. Like that’s pretty much the deal. It’s not that hard to understand.
Rebecca Markert: When you’re talking about those uber religious colleges, it just brought to mind. My favorite show is Gilmore Girls. And one of the characters in Gilmore Girls is Lane and she is a Korean American and her mom’s very strict and very religious. And so when she’s applying to colleges, she gets all of these Seventh Day Adventist college applications. She sits down and she’s going through them. And she’s like, there’s one school that has a park for boys and a park for girls. And she’s like, my life is over.
Liz Cavell: Right, exactly. Not a school for federal funding. Right. No, exactly. And I mean, it is not correct to say that that is evidence of that. Carson is just reflecting the status quo, because that is not what is happening when universities accept federal funding.
Rebecca Markert: What about the age of the students too? I mean, we’re looking at adults versus young and impressionable children. I mean, at the schools, in the state of Maine, in the fifth grade, they’re asking their students to proclaim Jesus and to refute the teachings of Islam. We see with a lot of these religious proselytizing teachers and people on the streets and things like that. I mean, they really are targeting students of a certain age because they really do kind of wanna get them when they’re young,
Liz Cavell: Right, a hundred percent. And I mean, when we’re talking about K through 12 education, like that is where we as a society, we have accepted this societal responsibility to provide free K through 12 education to all of our kids. And there’s just something different about that when it comes to what we are and aren’t funding because your money is gonna go somewhere to educate these students and the thumb or the fist is being placed down the scale to move so much of that taxpayer money into these private religious schools where most taxpayers don’t want it to go. And also of course, we talked about this in the Carson episode. It also is this concurrent project to really undermine our public secular schools. Public education also lost the day in the Carson decision. So that is the update on Carson versus Makin. Thanks for listening. We will have some other updates in the feed for some of the other decisions that have come down since we recorded our episodes on them. So stay tuned for those.
Rebecca Markert: I’m Rebecca Markert.
Liz Cavell: And I’m Liz Cavell.
Rebecca Markert: Thanks for listening. We Dissent is a joint production of the Freedom From Religion Foundation, American Atheists and the American Humanist Association. It is hosted by attorneys Liz Cavell, Alison Gill, Monica Miller, and me, Rebecca Markert. Special thanks to FFRF law student intern, Katie Stickland who assisted with producing this episode. Other production support comes from James Phetteplace and Greta Martens. Audio engineering provided by Audio for the Arts based in Madison, Wisconsin.
Thanks for listening.
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