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Liz, Rebecca, Alison and Monica discuss the “sleeper case” of the Supreme Court term which could upend prohibitions on government funding to religious schools. The lawyers break down the arguments from the case out of Maine, Carson v. Makin, and discuss ramifications and potential outcomes.
Background
The Atlantic – “The Sleeper SCOTUS Case That Threatens the Separation of Church and State”
Slate – “The Supreme Court’s New Religious Liberty Case Could Destroy Public Education”
Relevant Cases
Liz Cavell: Welcome to We Dissent, the new podcast brought to you by the Freedom from Religion Foundation, American Atheists and the American Humanist Association. My name is Liz Cavell and I am an attorney with the Freedom from Religion Foundation.
Rebecca Markert: I’m Rebecca Markert. I am the legal director at the Freedom from Religion Foundation and another one of your co-hosts.
Alison Gill: I’m Alison Gill and Vice President for legal and policy at American Atheists and another co-host.
Monica Miller: And I’m Monica Miller, legal director and senior counsel at the American Humanist Association.
Liz Cavell: So this is episode one of our podcast, We Dissent, and so just to introduce ourselves and what we’re doing and what we’re talking about. We wanted to have a podcast kind of in the secular legal space, but anyone who works in the secular atheist agnostic like movement knows that it is a male dominated space, and so we really wanted to elevate our female voices and talk about some really alarming things happening in the courts and also kind of in the broader legislative, social, political world that are really detrimental to state church separation, which we all work really hard to preserve in our careers.
Rebecca Markert: And when you look at who’s practicing constitutional law like we do, you know it is also male dominated and the legal podcasts that involve constitutional law are also very male dominated and we wanted to kind of break into both of those spaces. We wanted to raise the voices of women in the atheist agnostic space and in the legal space, in particular constitutional law. I remember when I started at Freedom from Religion Foundation 13 years ago, many, many times when I would go to hearings or even just meetings about amicus briefs and I was the only woman in the meeting. And now I’m working with all of these women who are at our sister organizations and are really doing the major work to advance our goals.
Alison Gill: It’s also worth noting that the courts themselves are fairly male-dominated, especially after the Trump administration. And you know, they’ve just been appointing judge after judge who is usually, you know, under Trump they were white men for the most part. Right, and that has a major impact as well, especially when the decisions are more and more impacting people’s rights, especially women’s rights. In the context of abortion and so many other issues and and our name as a podcast, is actually in homage to judge who has spent quite a bit of time standing up for church state separation and the rights of women.
Liz Cavell: That’s right, so for our first episode we are going to talk about a Supreme Court case that is pending right now on a knife’s edge before our illustrious Supreme Court. It’s called Carson v. Makin, and it involves some pretty meaty and just kind of bedrock issues that we work on at all of our organizations, which is public funding going to private religious schools? So we’re going to kind of back up, take a bird’s eye view, talk about what this case is about and how it started its path to the Supreme Court, where it stands, what we expect, all the implications and just kind of try to have a conversation about a really important issue.
Rebecca Markert: This case is one that was described in an article by the Atlantic, called the sleeper case of this term. There are a lot of crazy cases going up before the court right now, with regard to abortion and gun rights and things like that, one that people aren’t really talking about is Carson v. Makin, and it is a case that’s going to have a dramatic effect on the separation of church and state.
Liz Cavell: Yeah, it’s really hard to know where to like focus your like you know, night terrors with this current Supreme Court and the political environment. There’s just so many issues that are being threatened and you know our negative and fear based attention is kind of like pulled in every direction. But we’re going to try and pull it in the direction of state church separation, and that’s Carson v. Makin.
Alison Gill: We used to have a, you know, major Supreme Court case on civil rights or separation of church and state every, you know, 5 to 10 years. It’s become more and more frequent, and now we have two or three major cases a year on civil rights and church state issues. It just seems like every year there’s another major case, and this is certainly the representative one. But last year, what was there, Espinoza, Fulton? Year before that Trinity Lutheran. It’s just one after another these days, unfortunately.
Liz Cavell: Right, and that’s just in our area of practice.
Rebecca Markert: Religious liberty issues in general have been of increased interest at the US Supreme Court, and like Allison mentioned, they are taking more and more cases. They are constantly adding cases that have religious liberty, adjacent type of claims to them and and it’s really nerve wracking to see where we’re going and this is another reason why we wanted to do a podcast like this because I think when we look at civil rights, the idea of state church separation is one of the lower ones that people tend to care about. They really kind of have taken it for granted and now we have all of these cases talking about some aspect of state church separation and we have now, I think a majority of the justices on the United States Supreme court who would like to really just bulldoze that wall. At one recent oral argument, Justice Gorsuch called it the so-called separation of church and state. So this is, this is a big deal, and one of the reasons why we wanted to start these conversations on this podcast. So people understand really what’s happening at the court and how their rights are going to be affected.
Liz Cavell: Yeah, and hopefully too through some of these conversations we can kind of add to the conversation or the understanding of like why this is important? Like I said, like, there’s so many things on fire, it’s hard to really focus on what’s important and what’s you know, it’s like democracy is ending and women’s rights are ending. And it’s also like the separation of church and state sounds so you know at a remove, but really once we get talking about some of these issues and what’s at stake and what are the sort of like dominoes falling out from some of these decisions. I think we’re all kind of hoping to really, just like ignite the conversation around why secular government is such a foundational American concept that we should all care about.
Monica Miller: Absolutely, in fact I actually just wrote an article about why Christians should care more about the separation of church and state and why it’s really perverse that we’re confronted with federal judges call the cornerstone of our democracy. I mean, what makes America great? What makes America America is that we have the separation of church and state and so when you have the highest judges in the land using air quotes to say so-called separation of church and state. That should be a red flag to everyone, not just atheists. Because it’s the religious who kind of stand to lose the most when their religion is torn apart and watered down and changed and transformed by government officials and by the US Supreme Court. So I’m hoping through this podcast we also are reaching our friends and allies that aren’t just nonreligious, but that care as much about our country and our rights as women and its people who depend upon separation of church and state.
Liz Cavell: The case we want to talk about today is called Carson versus Makin. In a little background of the case, it arose out of Maine. The state of Maine, where they have a public education system that is a little bit complicated because there are so many rural districts in Maine that don’t have enough students to operate their own secondary schools, which is usually a high school. So in those districts, the school district arranges with other public schools or or private schools in there area to take its secondary residents, students and and, in some districts, families can choose a public or private school to send their students to and the home district will pay their tuition and that is the way in which the Home District provides a public education as it must do by law to its high school students when they don’t operate their own school. So one of the features of this program for decades has been that the schools receiving this tuition from the state to pay for public school students, the schools have to be nonsectarian. Which means they need to offer a secular education that’s comparable to what you would get at a public school, and that’s to prevent public school funding from being used to pay for religious instruction. And there’s not been anything very controversial about that. For a very long time in this country, it’s been an understood, sort of interpretation of the separation of church and state and are in our Establishment Clause that like public dollars cannot go to fund like religious indoctrination. That’s kind of really basic to the Establishment Clause, so in Carson, what happened is two sets of parents who live in a district that doesn’t have a public secondary school. So their children were eligible for this state tuition assistance to attend approved schools. So one of those families, the Carsons, sent their child to Bangor Christian it is a conservative Christian School and then the other family wanted to send their son to a school called Temple Academy. Also, a private Christian School, but couldn’t because they couldn’t get these tuition payments from the state. So these are the parents who filed the lawsuit.
Rebecca Markert: And maybe we want to talk a little bit about these schools in particular because what they do and what they teach is pretty central to the case as well. And so when you mentioned Bangor Christian, it’s a school whose Christian worldview aligns with their sincerely held religious beliefs so they have a mission of instilling a biblical worldview into their students. They find the Bible to be the final authority on all matters and what’s probably most upsetting to a lot of people is that they refuse to hire anyone in the LGBTQ community. And Temporal Academy is very similar. They have a biblically integrated education and they also refuse to hire LGBTQ. They want to discriminate. There’s horrible stories about other things that these schools have done like expelling students who identify as gay or transgender. They compel Bangor Christian School, compels all teachers to affirm that they are born again, Christian, and that they are active tithing members of a Bible believing church. They don’t hire teachers who do not subscribe to that.
Monica Miller: We’re talking about public funds going to support that mission, and those aims, right? That’s what this case is about.
Alison Gill: Yes, and it’s also worth noting that the you know these schools their education is also impacted by the education offer is also impacted by their religion. For example, they’re I mean they don’t have a lot of stuff in the record, but they teach creationism and things like that, right? So it’s it definitely impacts the actual education that students receive as well. With that, with the state funding potentially.
Rebecca Markert: Right. In the 5th grade at Bangor Christian, the 5th graders learn that God is the creator of the world and in 9th grade they have to agree this to refute teachings of Islam and do that by the truth of God’s word.
Liz Cavell: Right, and as is their right to teach in this way, which is what Monica is getting at. These are private Christian schools who you know have every right to engage in religious instruction, infuse their entire curriculum with these types of values and beliefs, and who are under Maine law. They are exempt from anti discrimination laws that would otherwise make it illegal for them to hire on the basis of sex and sexual orientation because they’re religious schools. They are allowed to operate this way, of course pursuant to like their religious worldview, but what we’re talking about in Carson v. Makin is whether or not public school districts in Maine have to pay for students to go here as a replacement for public education in those districts that don’t have schools. And so we’re talking about all the citizens of Maine, the LGBTQ citizens of Maine, and the minority. You know, the Jews and the Muslims and the nonreligious and all the people paying, you know, out of their pockets for students to get their public education at these schools.
Alison Gill: You know, these cases don’t come out of nowhere either. Like there’s been a movement in this country for a long time to try to sort of whittle away at both public education and channel funding to religious and private education and you know, there’s been some stops on this often, having to do with no aid clauses and states in their constitutions that prevent money from being channeled right, but you know, there’s been whittling away of that in the courts, and we just see this progressively more and more cases about trying to shift money from public to private education and opening the doors to make that possible, and this is a long one of those cases in a long line of those cases.
Liz Cavell: That’s right, and so that’s like a good segue into how did this case make its way to the Supreme Court? Because this has been years in the making. So I thought we could kind of backup to 2017 and give a little background here on a case called Trinity Lutheran. That was a Supreme Court case decided in 2017 that really kind of shifted the landscape a little bit in a way that made firing this case and kind of moving this football a little bit easier, like Alison was saying. So Trinity Lutheran was a case that involved a state grant program for playground resurfacing. And the plaintiff was a church, a church, run preschool, Trinity Lutheran that wanted access to these funds and and they were not eligible because of the fact that they were a sectarian school, same thing or same kind of situation here, which is that part of their, you know, their operation involves religious indoctrination and religious instruction and and so the court there decided that the Free Exercise Clause prevents a state from denying in otherwise available funding benefit to a church based on the churches religious status, and so we’ll talk a little more about that in a minute, but Trinity Lutheran kind of gave an opening to the families in Carson v. Makin and all of their backers to claim that main system of funding public school education is similar to Trinity Lutheran in that it excludes sectarian schools that teach religion only because they’re religious and that that somehow also violates the Free Exercise Clause.
Monica Miller: I think we should talk about the difference of like what Trinity Lutheran even really was about versus kind of where we got into here. I mean Trinity Lutheran, if I recall, it was about like tan bark. but it was like, you know a secular benefit that wasn’t you know funds to go to a teacher. It was like a secular Earth thing, and so even though we all agreed that the outcome was completely wrong. It was it and it certainly paved the way for where we landed but I think there’s a huge leap between the facts of those two.
Liz Cavell: Yeah, you’re so right. One thing we talk about all the time when we bemoan the Trinity Lutheran decision is that it really was one of those kind of perfectly plucked cases to garner the sympathy of the justices and also to sort of give a lot of cover fire in the public narrative of like what the case is about and what’s fair. So like you said Monica, it involved a benefit to resurface with, like rubberized playground surfacing, preschool playgrounds, and and the court seemed to somewhat focus on how detached from religious instruction that particular use was.
Alison Gill: It’s funny to the way these things are described in the courts versus how they are in reality to our our litigator, Geoff Blackwell actually grew up in that in in, in Missouri, right near that church, and he was saying, you know that that playground that they renovated is always locked. Nobody has access to it in a general public. It’s only the religious group that actually has access to it. And now they’re saying it’s a generally available secondary benefit, so it’s it’s amazing what we hear in the courts versus reality sometimes.
Liz Cavell: Right, and of course the problem with funding being that money is fungible, like money that goes to a preschool that teaches a biblical worldview to four year olds for to resurface their playgrounds frees up other money.
Alison Gill: It’s pretty remarkable, though it flips the, you know, the religious clauses in the Constitution on their head, right? It went, we went from we can’t fund religious activities to in this case because of the situation, the state must fund it just because it’s a secular benefit, and it’s a religious organization, so it’s it’s really is quite remarkable where we ended up.
Liz Cavell: That’s right, so that happened in 2017. In early 2020, so in between then and 2020 is when Carson v Makin gets filed in the lower courts. And while that was pending and making its way through the lower courts, the Supreme Court decided Espinoza versus Montana Department of Revenue and that was in summer of 2020 and there the court basically decided that a state that is subsidizing private education in some way cannot exclude a school from that funding, just because of the schools, again religious status, so it kind of took Trinity Lutheran, but then blasted it out of the super sympathetic playground, resurfacing ticket item and into what in that case was scholarships for private sectarian education that could be written off.
Alison Gill: What amazes me about this case in some ways is the standing aspects of it. I have to say just because it’s amazing that the court goes so out of their way to take these cherry pick cases that they want. The standing issues here are remarkable because I’m sure this will go into a moment, but this case, you know the program had already been struck down and the court really reached to sort of create a new program out of whole cloth. It’s unclear who benefits or what the benefits are going to and yet the cord is really trying to get access to it, and we’re seeing this in other places when it comes to religious cases as well. The court is really going out of their way to get these cases where they want them.
Liz Cavell: Standing is basically this threshold question that federal courts are supposed to answer before they can even really hear a case. Which is it kind of boils down to is there a concrete injury here that we can redress by making a ruling in this case and a lot of times the facts on the ground are constantly changing and evolving in ways that make the answer to that question: no. And Allison is talking about the Espinoza case in 2020, where basically the whole Montana program that was the funding program at issue that was funding private sectarian school or private school scholarships was I think it was suspended or it was or it was defunct, yeah.
Monica Miller: It was struck down, if I recall, from by the Montana Supreme Court, so there is nothing left for the court to strike and they would have to resurrect and recreate the legislation for the Supreme Court to strike it down so it was technically moot.
Liz Cavell: Right, so so normally you would expect the federal courts in our kind of system of review to not take a case where the injury and the conflict is not live anymore, so in other words, their ruling is just kind of like they really want to speak on this issue, but it doesn’t change things on the ground. So that’s just bizarre, especially for all of us who have had our cases thrown out for lack of standing repeatedly.
Monica Miller: I was going to say that it’s so interesting ’cause listening to, re-listening to the arguments of the case where they discuss the Maine case today the Carson case, you know, and listening to them talk about standing it’s like they go out of their way to preserve standing in these cases with Christian plaintiffs. And where there isn’t, and then when there’s an atheist plaintiff like the Michael Newdow case, challenging under God in the pledge. Where they create I think Justice Rehnquist even you know in his dissent, concurrence of that wildly dicta decision had said this is a ticket for one day rule that you’ve created to box out an atheist plaintiff. The liberal wing at that time was concerned that the conservatives would just say that God is allowed. But the point being is that our plaintiffs we have, we have to go through hoops and bounds when we have such clear standing, and when there’s nothing left to legislate, and it’s completely moot, and the Supreme Court still takes it.
Rebecca Markert: And that’s really like the joke that has arisen from a lot of these terms recently is just like, oh, they took that case, why there’s no reason to actually take that case. Oh, but the plaintiffs are Christian, so that’s probably why and they’re going to do something horrible. We don’t, really, I mean, we laugh about it, but we shouldn’t, but it’s definitely true. I mean, if it’s a Christian fighting for a right, you know they’re going to take it. You know they’re going to give them that right. And all other religious minorities or non-believers are not going to get those same privileges.
Liz Cavell: Yeah, it’s so cynical, but it’s really true. If you court watch like it has not been traditionally very easy to get the Supreme Court to review your appeal, you know there’s an astronomically small percentage of petitions that they accept for review, and so when they take a case it’s really because they want to. There’s no other kind of rhyme or reason, and especially as time goes on, standing is kind of be damned if they really want to address an issue.
Alison Gill: And in cases like, you know this and like Fulton for example, which is another case I’m sure we’ll eventually talk about, the watchers are all we’re all thinking: Oh well, they’re definitely going to side for the Christians. The question is, how bad is it going to be? How much are they going to twist the law? How much you’re going to rip apart precedent to get there. And it’s a really bad place to be, but that’s what we’re seeing in the courts over and over again. How bad is really going to be? No, it’s not a question that the Christians are going to win. The question is how badly is it going to be for our side? Which is awful.
Liz Cavell: Yeah, well, that’s a great segue back to Carson v. Makin, What we’re just last talking about is this Espinoza decision. So that came down in the summer of 2020. Basically just expanding that Trinity Lutheran decision into a space that just involves funding to private religious schools, and the fact that actually it violates the Constitution not to give funding to religious schools. And then in this case, the Carson case, it’s in the First Circuit Court of Appeals which has jurisdiction over Maine. And it was in October of 2020 where the First Circuit Court of Appeals decided against the parents’ claims and held as is appropriate under current case law that this Maine program doesn’t violate the Free Exercise Clause. That this program is not like Espinoza, and it’s not like Trinity Lutheran because Maine does not have a bar on schools getting this funding based on their religious status, but it has to do with whether or not schools are going to engage in religious instruction, religious curriculum and all of the things that Rebecca was talking about that are pervasive religious promotion throughout these schools’ policies. So, you know schools are being excluded from receiving public money based on whether or not the funds are going to be put to a religious use. Because of course there are some religious schools that receive funding under this program, but they offer a comparable secular education to what students would receive in Maine public schools.
Alison Gill: This religious status versus religious use distinction was sort of laid out in Trinity Lutheran. That’s where they first discussed it and they didn’t really go into I mean, they didn’t explicitly say that you know religious use can be restricted. It was more like we’re talking about status. We’re not going to say anything about religious use, and some justices have already started to criticize that breakdown quite a lot actually. So the question is, are what we’re concerned about here? Are they going to basically destroy that line? Altogether in this case versus religious use of money versus religious, you know, discriminating based on religious status.
Liz Cavell: That’s right. And the parents, the plaintiffs in this case are arguing exactly that which is that the status and use distinction is usually useless. It should be overruled, and that this type of exclusion from funding should be unconstitutional. Regardless of what the money is being put to or what use the money is being put to.
Monica Miller: Yeah, and I think we have to sort of stand back and remember, kind of like what discrimination means in these contexts and sort of standing back and understanding the interplay between the Establishment Clause of the First Amendment and the Free Exercise Clause of the First Amendment. The Establishment Clause, as as we know comes first and that’s what gives us the separation of church and state. And there’s the Free Exercise Clause which says, you know the government can’t burden or infringe upon your religion and the court has said that there’s this sort of play between the joints where the government can you know, create a program, but it doesn’t have to, you know be an all comers program if it’s if it’s secular. But now you’ve got these religious groups saying it’s religious discrimination to exclude us. And yes, in a sense it is religious discrimination. I think Justice Breyer says this in the oral argument but it’s allowed because of the Establishment Clause. And so I think just standing back and understanding the posture of some of these states, you have some states that want to go out of their way to create tuition programs to fund religious schools.
Monica Miller: Here in Maine we have a state that actually doesn’t want to do that. They want to provide secular education, and there’s some areas in this kind of remote state where they don’t have, you know, a public school and they are saying let us find the closest analog to a public school and support that, but they’re not saying we want to support religious education. And so this is so unprecedented and alarming from the standpoint of what they’re demanding. They’re saying we have a right for the government to pay for our religious instruction. And that contravenes the core foundation of our of what it means to violate the separation of church and state. To give money for religious instruction. So I think you know when we talk about these minor distinctions between religious use and this. It’s like we have to remember the bigger picture too. What they’re asking is really at the core of what the Constitution prohibits.
Liz Cavell: Right, that’s such a good point. Like Rebecca said at the top of the episode this is kind of like the sleeper case that not a lot of people are really worried about or talking about, but I do think in one space where there is a lot of just kind of like fear and pushback is just the attack on our public schools. So you know there is a real sort of not even undercurrent to this case that is this direct attack on the fact that our public school system provides this secular education and there’s sort of there’s a lot to talk about here in terms of like what we’ve watched happened over the past year with critical race theory and all the attacks on public school curriculum and local control, and how we should take that away from schools as Monica is, correctly identifying is the Supreme Court is poised to basically say the state of Maine has to view a public education as including this incredibly conservative Christian infused, you know, type of education and curriculum. And the fact that it doesn’t is discrimination. And it’s just this it’s this battle between secular education and secularism and what we teach and what we think of as a well rounded secular education for our kids. Public education. You know. An appropriate public education versus what you know a shrinking majority of people would want their kids’ education to involve.
Alison Gill: I mean, in effect it’s saying that the state does not have a right to offer a compelling interest in offering a secular public education too, which has incredible, you know, repercussions down the line up for you know if that’s true, then what about, you know, charter schools just have to start accepting religious charter schools. If we have other types of charter schools, what if, and if you have to offer. Basically, what about if there’s a you know what’s the compelling interest in having separating religion from public education in the first place. So I mean it potentially opens up further doors as well.
Liz Cavell: Let’s discuss what happened at oral arguments. So just in the timeline of events of this case the Supreme Court agreed to hear this appeal in the summer of 2021, so that just happened. And and obviously it’s a bad sign because the First Circuit, as far as we and many others are concerned, kind of got this decision right on, and now the Supreme Court is like selecting it from a massive pile of petitions to address this upcoming term. So that’s a bad sign, but the first signaling on this happened in December of 2021, just last month when oral arguments were heard in front of the Supreme Court. So let’s kind of talk about what we heard, what it signaled, who said what, what the arguments were.
Alison Gill: Well I think that the side that the petitioners, Carson, are trying to lay out is that basically under a prior case law says that private schools I mean school choice, having school vouchers that go to the individual parents or you know to go to private religious schools is just fine. So that’s not prohibited by the Establishment Clause under a case called Zelman. And that notably that case does depend on the parent making a genuine independent choice. So that was OK, but the problem one of the major problems is we’ve seen this sort of reliance on a previous older case called Widmar v. Vincent, that basically says that anything that you know trying to go broader than the Establishment Clause trying to protect rights broadly under the Establishment Clause is not a compelling interest, and so under that sort of guidelines if something is not constitutional, I mean something is not required by the Establishment Clause, it becomes almost mandatory, like like Monica was saying earlier. There’s less and less room between the two clauses.
Liz Cavell: I want to know if you guys got any signals on like whether or not this particular court cares about standing. We talked a little earlier about the standing in this case and I just wanted to mention like it’s these schools of choice of these particular parents, the ones that we talked about specifically they don’t actually accept the Maine funds. They don’t want to accept the Maine funds because they don’t want any restrictions on their conduct, their hiring practices, their policies, and they know that that would be something that would be scrutinized if they were going to accept state funds, as it should. So technically these parents couldn’t use state funds for these schools if they wanted to. The schools themselves do not participate in the program. So it did come up at oral argument, but I kind of wondered how much of it was lip service and how much of it anyone really cares about on the court.
Monica Miller: I felt, I mean my again, my knee jerk reaction was that this is such a double standard because if you’ve substituted an atheist plaintiff, we wouldn’t even be in this court. But I think they’re gonna bypass it and the only silver lining is if there is a split within the conservative wing that maybe will do it. I don’t think they’re going to kick them out on standing. I just don’t think they’d take the case and then do that. So then all I can see, you know, the only silver lining I can glean is maybe we can use this to bolster our standing when it comes to some pushback and Establishment Clause cases, you know, later down the road. But I don’t see them kicking this case out on standing.
Rebecca Markert: Well, and I think really what happened at oral arguments and in the briefing is that they started talking more about the opportunity to have these funds, not necessarily that they would have access to these funds. But are they being denied the opportunity to have these funds. I also want to just jump back and point out that one of the sets of parents are already sending their children to that Christian Academy. They’re not denied that education. They’re actually paying for it, they just want the state to pay for it, and then the Nelsons, the other, the second set of parents they they would like to, but they need the money from the state in order to send them to Temple Academy.
Alison Gill: Except Temple Academy, as I think Monica just said they’re not going to take the money, right?
Rebecca Markert: Right, right!
Liz Cavell: Correct, both schools that we’re talking about do not agree to take this money because of course as the program has been operating non controversially for decades, they don’t want to accept any limits on how they operate as a Christian school.
Monica Miller: And that’s the proper role of church state separation. We’re friends, you know our groups are friends with the Baptist Joint Committee or Commission. They are a very, you know they’re religious group, but they also support separation of church and state and they support all of our work very well. And they kind of want to shake their religious allies say like, there’s strings attached when you take money. Why do you guys want money so badly, you know this money it is going to warp and change your religion. There’s no free lunch and I think that those Maine schools that are refusing the funds you know they’re from our standpoint, like awful schools that, you know, have really bad ideas, but that is where they think they’re pretty smart.
Alison Gill: I think that you’ve really hit upon a major point there, and that’s that the modern project of the conservative justices is to contort the law so that they can have their cake and eat it too, so that they can get money and also get rid of all consequences for having government money, right, that’s.
Monica Miller: And it’s just not them at work, though. I mean here we see the Satanists barging in at every opportunity and I’ll call them and tell them hey, they just said that Bladensburg cross is open for everyone and it represents atheists and Muslims alike. And what did they do? They showed up and they rebranded the Bladensburg Cross the Satanic Bladensburg Cross. And they had a food ceremony and the Christians were outraged. And that’s the Supreme Court only has so much control and they can try to set it up where they give the Christians everything and they kick the atheist out but when you set up these rules that apply to everyone and the country is getting more diverse, whether the Supreme Court likes it or not. And you know younger folks are moving away from religion and church. They have no control over that, and I think what we’re seeing in this increase in taking these cases is the Supreme Court trying to grab that control and all we need to, we need to get the schools we need, to you know we need to like, indoctrinate the kids, they’re they’re getting away from religion. So I think it’s almost, it’s almost like I tried to stand back and not, you know, like let myself get so emotional and frazzled by all of this and be like this is maybe a sign that we are progressing as a society and Supreme Court is freaking out and trying to take the reins.
Liz Cavell: It’s so true, but it’s also like then the part of me that is emotional and frazzled is like well… It’s like Alison said, it’s been the project of the past like couple of decades and they’re doing it in time when they still have the institutional advantage because what’s going on in Maine is there and elsewhere, you know it’s a microcosm and obviously this case the Supreme Court ruling is going to be the law of the land everywhere. This is happening at a time where the vast majority of any of the private schools were talking about that would be that would be implicated by a decision are Christian, and many of them are these conservative Christian Academy type schools. We’re not living in that pluralistic future yet. Where you know, there’s just as many takers and comers from minority religions as conservative Christian religious schools. So the institutional advantage is still so baked in tha, like the windfall of gains from these just crazy decisions on doing all of our secular norms is going to fall to the most conservative Christian organizations that are already kind of advantaged in the system. And then what does that mean, you know?
Monica Miller: No, you’re totally right. I think one thing I would point out is you can’t mean after all of this, just say you know what? Then we’re not even going to give funds to these private secular schools. We’re just only gonna take all that money just to really make a more robust public school system.
Alison Gill: They could, and they could also say, you know we’re going to actually put lines on this. We’re going to say, OK, we’re not going to give the money to any school that discriminates. You’re only going to give them in a school that has classes that are in line with standard public school classes like biology that teaches only real biology and not creationism, stuff like that. They could absolutely do that.
Monica Miller: That that’s sort of my point is, at least within the states ‘cause you’re right. That, like geographically, there’s no Satanist school, there’s no humanist school, there’s no you know like probably no Muslim school.
Liz Cavell: You can bet if there’s one minority religious school in Maine, it was trotted out by the plaintiffs attorney to show how ecumenical their whole like deal is but the I mean what we all know because our eyes are open and we can look around is that like we’re still living in a world where the the majority of the people are Christian and the you know the institutional just like buildup of that is not going to be undone. I mean, changing demographics are awesome and encouraging, but it’s not going to be undone in time for this to save us from this Supreme Court.
Rebecca Markert: I just think that all of the solutions that we’ve brought up here about you know putting up rules that they can’t discriminate. They can’t do this. They can’t do that. Just harkens back to what Alison was saying before they want their cake in there and eat it too. So we’ve seen these trends coming from the US Supreme Court where these religious organizations are going to the court saying we need not to be discriminated against, but at the same time we want all sorts of exemptions so that we don’t have to play by those same rules. So even when you say hey, they’re getting funding and with that funding comes all sorts of restrictions and regulations. I don’t see that being necessarily true in this day and age because they’re seeking exemptions and they’re going to court over them and they’re getting them, and that’s what’s most frazzling about this and most upsetting when inevitably this court decides that Maine’s system is unconstitutional and taxpayers are going to be forced to fund religious education for people.
Alison Gill: And this is sort of reflected in the oral arguments as well, where basically they make the argument repeatedly that this is the justices seemed to make the argument really that this has a disparate impact on certain religions compared to others, right? Which should not matter, right? You’re allowed to have neutral rules even if they affect different religions differently. I mean that is always going to be the case. Actually, almost any law will affect different religions differently, but here it seems to be a really big deal that it affects certain religions and not others. And then if we think about something like a non discrimination law, guess what? That’s gonna affect certain religions more differently than others too so that’s that’s that’s very worrying to me.
Monica Miller: I actually took note of that as well, and I thought it was so interesting that in the town of Greece context, in the legislative prayer context, when we saw an overabundance of Christian prayers being delivered at this city council meeting, and you know, we were saying that promotes Christianity. Well in the flip side when we bring the Establishment Clause case they go oh it’s mere demographics. That’s not an intentional discrimination. That’s not preferring Christianity. That’s just an accident of geography. But then when it’s on the other side they’re like it’s it’s exact opposite, it’s like, well, you know this is disparate impact and discrimination like you know.
Liz Cavell: Right.
Monica Miller: It’s not discrimination against atheists to have abundance of Christian prayers being said every you know, every cityouncil meeting, but it’s discrimination.
Liz Cavell: Right, and it’s it’s another like coded attack on just like public education and all of us woke people who like secularism. You know, like it’s this idea, well, it’s like well, did you ever notice it’s only the conservative Christians who don’t qualify as a comparable secular education?
Monica Miller: Right, right.
Liz Cavell: You know or like oh why is it always us that are the only ones that don’t abide by anti discrimination laws. Like this has such a disparate impact on us. Well, yeah, because our liberal Christian schools are trying to to give a well rounded public public comparable education to their students and you are an indoctrination factory. You insist on discriminating, as is your right, but like.
Monica Miller: Yeah, well, that’s what I was thinking is like a race to the bottom. when they were sking that line of inquiry. It was Alito I think that was of course problem, but like I, I almost remember him really hitting hard on that. And I’m thinking, you’re proud that you are disparately impacted by the general laws of applicability that say you can’t discriminate, that you have to proper education. I just don’t get it.
Liz Cavell: Right, it’ss this total inversion of like persecution and who’s persecuted by what and what the what The religion clauses are meant to protect versus meant to you know inflict.
Monica Miller: Yeah, correct, yeah They’re weaponizing the Free Exercise Clause.
Alison Gill: Another way they’re doing that is by sort of using mismatched or conflated terms for the word secular. For example, they’re portraying public schools which are religiously neutral as being somehow anti religious because they’re secular.ike secular as in secular means anti religious as opposed to just meaning not or religiously neutral and so we see that in the context here. OK, well, you know you’re funding, public schools, but those are actually anti religious and therefore that’s discriminatory. But that’s not that’s not the case. Of course, they’re religiously neutral, and I think the the you know, Makin, the government side, made the point that if the government can’t under this rule fund anti religious schools as well, as if those actually existed, but they could not fund like, I don’t know atheist centric schools I guess either in the same way they can’t fund Christian centric, Christian infused schools. So I thought that that was actually that we focused our amicus brief about at American Atheists.
Liz Cavell: And you focused on that distinction.
Alison Gill: The meaning of the meaning of the secular distinction and how it’s sort of used and misused and conflated by different by both opponents and by justices sometimes to sort of convey these dual meanings at the same time in ways that undermine religious neutrality.
Liz Cavell: It’s so true. I mean, that’s how they kind of dog whistle to this culture war that is, you know, undergirding this whole movement. Which is, you know, secular is somehow anti whatever conservative and what are conflated as like conservative Christian values.
Monica Miller: Answered a question to that effect about whether you know if there was a school that was promoting Unitarianism, or as a Unitarian School and it and I think it was Alito that basically like described what a public school is but he used the word Unitarian and and the lawyer was like, well, if it’s a public school that teaches, you know civics and good manners and being kind to one another like basically what the guy was saying Unitarian, he’s like, well, that’s allowed. But if it’s you know anti and and Justice Alito was like well it sounds like that’s consistent with teaching, you know, Unitarian and this is not. It goes back to that line of cases I feel like there was a bunch of them in our Establishment Clause cases where they say that secularism is not the same as anti-religion. And that to say that removing a cross is hostile to religion , it’s not, it’s restoring the government to a place of neutrality and so here again we are, we’re looking at Christians demanding public funds.
Liz Cavell: It’s like just because your religious belief tells you to hate gay people doesn’t mean that if I don’t hate gay people, that’s my religious belief.
Alison Gill: Like murder is wrong. It does not mean that that’s a religious belief because murder is wrong.
Monica Miller: And so the lawyer was basically is saying like yeah, if it was like a pro humanist school for the you know the Unitarian Universalist School they said off the bat we’d probably just exclude them ’cause it wouldn’t, it wouldn’t match up with, you know, or however they answer it, it’s like if it was against religion, but if it’s a public school, then it’s allowed. They were saying that these were not tricky decisions. They weren’t that gray of an area because most of the schools were either so clearly a religious school, or they were so clearly a secular school.
Liz Cavell: Of course, as Justice Alito well knows, but when you listen to these oral arguments, how infuriating is it that these are supposed to be our nine premier, you know, legal American jurists. And it’s all this you know what you’re describing, Monica. It’s just this kind of word play that’s meant to just kind of argue for one side, and give these analogies and hypotheticals that we all know are not tethered to the reality of the situation or relevant to the legal question that’s before the court. And it’s really, really infuriating to listen to these arguments. It is disheartening. Well, anything good come out of the oral arguments?
Alison Gill: Well, the government did a good job. I mean they can at the Supreme Court. They made it clear we’re talking about the benefit here is a secular public education. Right? That’s what we’re talking about. That’s the benefit, and so I guess the question is, is the Supreme Court going to let the government define that as an available benefit? And if it doesn’t, then we lose. And if they do, then state/church separation state wins. But that has real repercussions.
Liz Cavell: Right, Justice Sotomayor kept up, I think, kind of keeping it alive in the oral arguments. And I agree, Alison, the government attorneys did a good job of keeping it front and center, which is like the thing that the plaintiffs are entitled to here in the first place under the program is a public high school education for their kids like just like the rest of us. Like nothing more or nothing less. And so it’s so perverse to get to the outcome that we all know is coming. Which is no, no you’re actually violating their rights by not paying for their conservative Christian high school education.
Monica Miller: Right.
Liz Cavell: So how is the court going to get there?
Monica Miller: That’s the question, and I think it’s going to obviously be an extension of you know all the cases we just discussed at the beginning of this, Trinity Lutheran. It’s scary to think. I mean, I don’t know if there’s any sort of case that is going to be abrogated or overruled. I mean, in a way it kind of abrogates and overrules the notion that there’s a separation of church and state, because if giving money, if not giving government funds to a Christian organization, Christian School or Christian indoctrination. You know what I’m saying like I just it’s hard to it’s hard to square that with like removing a 10 commandments monument.
Liz Cavell: It’s so foundational to like what that wall of separation still stands for, but I’m wondering like, OK, so in the weeds a tiny bit. Do we think this is the end of like status versus use for funding?
Alison Gill: I don’t think they need to go there. They might, it depends on, you know we have new justices. They have not seen rule on that before, so it’s hard to predict, but they can just say, well, this is just like Espinoza.
Liz Cavell:It’s the status.
Alison Gill: Yeah, it’s status really. Even though you pretend it’s not, it’s actually status and just not go there and try to glide over the difference, the rule, the difference in the two policies. I think we might end up with that, especially ’cause we seem like Justice Barrett seems to not be sort of sticking her neck out yet on these things, trying to play it safe. So I think we might end up there.
Rebecca Markert: I agree with that. I think that they’re just going to liken it to other school choice programs across the country and this is just another version of those programs that we’ve already held need to be given government funds. Even though I think Justice Kagan during oral arguments explained this is actually a really unique program. It is not like those other school choice programs. I mean the fact, it was boggling to me to find out that Maine didn’t have some secondary schools. I just didn’t know that that like existed in the world. But they’re going to ignore the unique status of this program and just liken it to all other school choice programs and find that it is a violation of the parents’ rights and that the program needs to be revised.
Monica Miller: Yeah, I do agree with that I think that the concern that I have is with the precedent that it sets for all the other states and what will happen when, like you know, like Maine, might decide. OK, we can’t do this or we’ll restructure this so we don’t have to give our funds to these Christian groups but what about Alabama? Like is this a green light for states now; create and and run away with programs much more egregious with this ’cause they know, you know, that they can just directly funnel money now like. The posture of this is a state that didn’t want to do this. What about all the states that do want to do this.
Alison Gill: Well, I’m going to just create a little differentiation there. They’re not directly funneling money, they are using the medium of the parental choice, right? So that is different. Now the question is what effect is that going to have in the long run? And I would say Alabama can already do this under Espinoza. We were just talking about, so it’s kind of I’m not sure what the implication is going to be there. I would say that what we can hope for success on our side would be if you know we look at Zelman or something like this, which says that there has to be independent genuine choice. And you know, there’s some so basically that’s the only reason that these school choice programs are constitutional under the Establishment Clause is because of this independent genuine choice. If, you know, somehow magically this was the ruling that I’d like to see, they say, OK, ell, in this instance it’s not constitutional, it violates the Establishment Clause because in these rural communities there’s no public schools. There’s no independent choices, so therefore it’s not constitutional. Fund them. And therefore you know the state has to, has to win. It cannot offer these other types of options anyway. Just a thought.
Liz Cavell: Alison wake up!
Alison Gill: Yeah, I know, right?
Liz Cavell: I’m swinging in here with like the cynical point that doesn’t need to be made, which is? This is just, it’s counting heads on this kind of movement towards flipping the Free Exercise Clause as the dominant kind of way in which, like states, can violate or abrogate their obligations under the Constitution. And elevating the rights of Christians, you know, people in the majority religion by just sort of confusing and conflating all of these arguments. So I think we’re going to see like a lot of discussion about discrimination on the part of the state of Maine for refusing to fund conservative schools under their public school program. And then, you know, a bunch of concurrences that are, you know, just to the sides of that, and probably this will be 6-3.
Alison Gill: Yeah, yeah, I just think so too.
Liz Cavell: So what is so, if this is just an extension of Espinoza and a little bit more of the same. Even though oral arguments you know Justice Kagan and the advocates tried to really draw out that this is a really unique cabined kind of program. What’s the fallout? Like why is this so bad if it’s just kind of more of the same? What we’ve seen in Espinoza, what are we worried about?
Alison Gill: Well, although they might sort of alide the status use distinction, it actually still exists here. We are talking about usage of the funds, right? Even though the court might not delve into that and you’re weakening it like how they talk about is going to weaken that distinction, even if they don’t discuss it much, you know. So and you know, we should discuss a worst case scenario too. What happens if they do sort of break that down directly, or if it’s broken down over time. What is that? What does that mean? But I think that’s going to be followed here either in the short or long term.
Liz Cavell: Yeah, I think it’s so important too, like how bad this is for just public education and some that’s something that’s like really been near and dear to us, or at least Rebecca and I in our work at the Freedom from Religion Foundation, and I think all four of us like we work a lot on keeping the public schools religiously neutral. And that that is just so at the heart of what the Establishment Clause exists to do because like our public schools are our biggest state machinery and you know our kids are our most, you know, impressionable people. And so their right to a public education that’s well rounded and that’s religiously neutral has always been so jealously guarded by the courts under the Establishment Clause. And now in this broader kind of culture war that we were talking about, that kind of aims to like really pit public education against whatever this is, I do feel like that really is kind of the most tragic place that this case can do a lot of damage that hadn’t been done in past religion cases.
Monica Miller: Yeah, and we also have to think of all the lower court decisions that are pending that we all have pending in lower federal courts. You know, on any Establishment Clause issue anything the Supreme Court says anything in a conference, our opponents can take and all it takes is a Trump judge or a judge that won’t needs a hook to hang their hat on and it doesn’t even have to be factually correct. Alito makes up stuff. Like he made up stuff in my case and it’s like they’ll get away with a lot. And what I’m concerned with is like what kind of dicta Amy might throw into her concurrence or whatever kind of mess of decisions we get. What they will say about school prayer? What they’ll say about, you know, like the Santa Fe and Lee cases. We know that there’s this school prayer case now in the pipeline. What are the conservative judges going to say to set the stage to, you know, tear that apart. I think that the public school education stuff will see the negative effects maybe down the road. One little tiny, maybe not, pushback, but another backdrop thing to consider is that in some of the Supreme Court’s ministerial exception cases the Supreme Court was ruling against religious teachers in a way. Like the court when it said what was the one, Hosanna Tabor, where Hosanna Tabor and the recent ones but with the Supreme Court…
Alison Gill: Our Lady of Guadalupe?
Monica Miller: Yes. Well they say that basically that these religious schools are exempt from from discrimination laws, the ADA, and that kind of thing. And who loses in those cases? They’re not atheists. They’re religious employers, and if I was a religious employer in in Los Angeles and I just learned that the Supreme Court said my school can fire me for having breast cancer because they’re ’cause I’m a teacher I’m going to go maybe look for a job at a public school, so there might be some weird interplay with some of the other Supreme Court decisions that seem to favor Christians, but they actually favor Christian employers or the leadership and not the actual people. I don’t think that those forces are strong enough to count or not, but it’s something I’ve been thinking about with the public school context and how the Court is trying to have your cake and eat it too, but there’s these kind of reverberations.
Alison Gill: That’s a really good point, Monica, and I think it does have an impact on the individual teacher or like doctor you know or whoever has to interact with these institutions and they might make these decisions themselves. They don’t want to be forced down this road, you know. Also, you’re talking about the attacks on public education. You reminded me that there were, I think either one or two amicus briefs on the other side supporting, you know, Carson, that said basically, that you cannot offer public education because it’s unconstitutional. So that you can see what road they’re trying to head down with public education. It’s unconstitutional because it’s inherently discriminatory towards religion. So just think about that for a second, something that’s existed for, you know, well over 100 years in this country and more is not constitutional because it discriminates against religion, ’cause that’s where we’re headed.
Liz Cavell: You kind of see that writing on the wall in the parallel track of like… You can’t teach like you know kindness and racism, and you know that’s true exactly like these are the things that are kind of like operating on sort of a social track. And but then also, this religious track, but it’s always been kind of the gloss or the Trojan horse that lets the Supreme Court kind of opine in this way when you call it a religious or when you kind of cloak it as like this is a sincerely held religious belief of these parents in these schools, so we’re going to talk about discriminating against, you know, LGBTQ students as though it’s like.
Monica Miller: That’s their religion.
Liz Cavell: Right and so then the opposite of that. Like we were saying before it’s like this perversion of like, well, just because that’s your religious belief doesn’t mean that like.
Monica Miller: The opposite is also religious belief.
Liz Cavell: Right, that public schools are also somehow unconstitutional. You know it’s just it’s total just perversion of the whole like system. and the Supreme Court, some of these, like really activist conservative justices are just giving, you know, oxygen to that fire. And it’s scary.
Monica Miller: Yeah it is. It is scary. I mean I think all of this is, I think what scares me about this case, just like some of the other ones, is like how they kind of did fly under the radar and you know I think it kind of is is part and parcel the reason why we’re doing this podcast is we are we, you know I’ve been doing this case law for about 10 years now, I know Rebecca been doing it longer and and Liz and you. We want others to to understand and not share our misery, but like kind of wake up with the issues kind of seem nuanced or maybe they’re not as sexy or big as you know, Roe versus Wade, but they’re so cornerstone to like what our country is about and and they’re they have very specific and and real effects right away you know in public schools and with employment issues. Even though these cases sort of sneak under the radar, they’re extremely important.
Alison Gill: If I can just add to that you know we did a national survey of about 34,000 nonreligious people across the country to understand what issues are important to them and maintaining secular, you know, nonreligious public education was in number one concern out of everything, right? For the 34,000 nonreligious people, so it’s really important to our community, people really do care, and I think if we can get the word out about this, it will make a difference in the long run.
Liz Cavell: And I mean, think about how fired up all people across all demographics, not just you know non religious groups but just parents and people who are related to little kids like public schools how they operate that they’re open, you know that there are resources for our kids like just in the past two years and what we’ve all been through in terms of like how essential public schools being open, operational and public and accessible to everyone and to all of our kids.
Monica Miller: Yeah, well.
Liz Cavell: And a case that, like Carson, that’s going to take power out of the kind of public school project by saying that you know the Establishment Clause doesn’t mean that much in the public schools and really, all we should care about is, like you know, funding religion equally. It’s just kind of damaging the whole project, and if people can sort of like see those connections, I think that’s really good. So what do we think a decision this summer on this case, right?
Group: Yes.
Liz Cavell: Sadly.
Monica Miller: Sadly.
Liz Cavell: So we’ll know by this summer what happens in this case, and hopefully at that time we can give an update. And is there any final thoughts anybody wants to say about Carson v. Makin or about the podcast? Or should we end on a high note? Is there a high note? There is no high note.I know there is not. Low notes.
Alison Gill: No, no I missed it.
Liz Cavell: Let’s end on a low note, that can be our thing.
Alison Gill: OK, high note. Demographic victory! We’re winning in demographics! Give it time.
Liz Cavell: Give it time, like 100 years.
Rebecca Markert: I think the other high note is that we will be back with another episode to talk about these issues, again. Our next episode, we’re hoping to discuss the Christian flag case in Boston, where we will examine the free exercise and free speech claims of those petitioners who want to raise the Christian flag at Boston City Hall.
Rebecca Markert: We dissent as 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. Other production support comes from James Phetteplace and Greta Martens. Audio engineering is provided by Audio for the Arts based in Madison, WI.
Thanks for listening.
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