Amid the inevitable national uproar over the historic Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, relatively little has been said, other than on conservative sites such as NRO, about another decision the Court handed down, one with the potential to have a seismic impact on American education.
Indeed, as religious liberty cases go, Carson v. Makin marks a sea change where free exercise and establishment of religion meet.
The Court’s decision settled decades of debate over the right of religious private schools to access the same government funding enjoyed by secular institutions. Many states — including Maine, whose statute was implicated in the Carson case — have long regarded the provision of public funds to church-affiliated schools as a violation of the First Amendment’s establishment clause (“Congress shall make no law respecting an establishment of religion”).
In some cases, that interpretation evolved from an incorrect and antiquated view of the establishment clause; in other instances, it was born out of a hostility to religion. Either way, the practical effect was to deny countless parents the option of an affordable private education for their children, simply because that education was presented in the context of faith.
In a 6–3 decision, the high court found that laws such as Maine’s, in their zealous effort to sever church from state, violate another key clause of the First Amendment: the one blocking the government from “prohibiting the free exercise [of religion].” The Carson decision not only gives states the option of directing funds to religious private schools, it requires them do so in fair balance with how they allot such funds to secular institutions.
Carson built on several Supreme Court precedents:
In Witters v. Washington Department of Services for the Blind (1986), argued by Michael Farris (now president and CEO of Alliance Defending Freedom), the court unanimously determined that the establishment clause did not prevent states from giving financial assistance to students seeking religious instruction. It did not, however, require states to do so.
In Trinity Lutheran Church of Columbia v. Comer (2017) — a case I was privileged to argue on behalf of the church and its school — the justices found that denying a religious school access to the same government funds made available to secular schools, simply because of that school’s religious affiliation, was not required by the establishment clause, and — for the first time ever — held that such denial was a violation of the free-exercise clause. Justice Sonia Sotomayor stated in dissent: “This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”
In Espinoza v. Montana Department of Revenue (2020), the Court affirmed that state tuition assistance cannot be denied to students attending a private school on the basis of that school’s religious affiliation.
These decisions said the government can’t discriminate against a private school because of its religious status; Carson relied on the same analysis to say the state can’t challenge the religious use of the funds it provides. Opponents had contended that earlier decisions allowed for government funding only in cases where those monies would not be tied explicitly to religious instruction or use. But the Court ruled that state funding not only can but must be allotted equally, even to institutions where such instruction is integral to all its activities.
The decision dismisses a long-standing insinuation that the establishment clause poses a contradiction to the free-exercise clause, and that courts are therefore obliged to choose between one and the other.
That ignores one inescapable fact: that the Framers pointedly put both clauses (more accurately, it is one clause) next to each other in the same amendment. It hardly seems likely they would have done so had they intended the ideas to conflict. It makes considerably more sense to read the clauses as complementing each other: the right of citizens to live out their faith, and the obligation of government not to infringe on that freedom.
It’s not an idea those opposed to religious freedom are willing to embrace, and the legal struggle is far from over. Expect increasingly aggressive challenges to religious-school inclusion and accreditation — for example, through accusations of discrimination and bigotry against religious organizations that simply operate consistently with their faith, living out and teaching the principles that set them apart in the first place.
The far Left will continue to advocate for greater tolerance and inclusivity — but only for those whose ideals and activities they agree with. In truth, they don’t want a “wall of separation” between church and state so much as legalized discrimination against churches and expansion of the state. They are therefore expressing great frustration that, with the Carson decision, a big part of that “wall” has now fallen. But that’s to be celebrated. It needed to fall. It had no origin in the Constitution to begin with.