The U.S. Supreme Court did not throw out abortion rights, gut the Clean Air Act, or curtail states’ rights to prevent gun violence in decisions issued Thursday. It didn’t do any of those things—yet—but it did something just as destructive, if not more. In a 6-3 ruling deciding Carson v. Makin, the court “continues to dismantle the wall of separation between church and state that the Framers fought to build,” as Justice Sonia Sotomayor wrote in dissent.
At question was a law in Maine preventing public funding for students attending schools that provide religious instruction. The state provides funds for families to send students to private schools in rural and sparsely populated parts of the state where school districts have opted not to run secondary schools. Those school districts have the option of sending students to other districts or to private schools, with the state picking up the tab for the latter but only—under state law and the U.S. Constitution prior to Tuesday’s ruling—if the school does not provide religious instruction. Two families sued, arguing that this was an abridgment of the First Amendment’s Free Exercise clause.
The state had argued, in part, that providing public money to religious schools would violate the First Amendment’s Establishment Clause—barring the government taking actions that favor one religion over another, or over nonreligion. Chief Justice Roberts disagreed. “[A] neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. With that, Roberts made it clear that state or local governments can erode public education (not to mention separation of church and state) by funneling taxpayer funding to religious schools.
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Sotomayor was, again, scathing in response, writing that her colleagues had “upended constitutional doctrine.” The Court has “shift[ed] from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.” Thus, she wrote, “any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.”
“Nothing in the Constitution requires today’s result,” Sotomayor argued. The majority opinion is “especially perverse,” she wrote, because the case involves public education. “As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion,” Sotomayor wrote. Eventually, she fears, the court will come to “a place where separation of church and state becomes a constitutional violation.”
This is as radical a decision as any the court has made, and a reminder that Roberts is fundamentally no better than any of the Trump appointees when the chips are down, when the foundational principles of the nation are before him.
What is expressly not in the Constitution is any reference to the number of seats on the U.S. Supreme Court. It’s time to unpack this creation of the Federalist Society, Mitch McConnell, and Trump, and restore the court’s legitimacy. Expanding it and reforming it is the only way to accomplish that.