Fear of disputes among religious groups has been a recurring theme of the Supreme Court’s First Amendment jurisprudence for eight decades. Even so, Justice Breyer’s dissent in yesterday’s landmark Carson v. Makin ruling, which ordered Maine to stop excluding religious schools from a tuition-assistance program, had a familiar ring.
“I write separately, however, to emphasize the risk that publicly financed voucher programs pose in terms of religiously based social conflict. I do so because I believe that the Establishment Clause concern for protecting the Nation’s social fabric from religious conflict poses an overriding obstacle to the implementation of this well-intentioned school voucher program.” That’s not what Breyer wrote in yesterday’s dissent. It’s what he wrote in a 2002 dissent. Then the question was not whether the Constitution commanded states to include religious schools in scholarship programs. It was whether it even permitted them to include those schools. Five justices said yes; Breyer, and three other justices, said no.
Allowing states to fund religious schools, even indirectly, would, in Breyer’s view, pose an unacceptable risk of “social dissension,” a “struggle of sect against sect,” and “division among religious groups.” The word “strife” got a particular workout, appearing ten times. In conclusion, he warned of “religiously based conflict potentially harmful to the Nation’s social fabric.”
It has been twenty years since Breyer lost in that case. Is there any evidence that the majority opinion resulted in any of the dangers he mentioned? If so, you would think that he would mention it. In yesterday’s dissent, though, he does nothing to evaluate whether the record since 2002 makes his fears look more or less plausible. Instead he just repeats the argument. We hear about “religiously based social conflict,” “disunion,” the European wars of religion, “division,” and, of course, “strife” (this time eight times).
The line about “the struggle of sect against sect” was not original to Breyer. He was quoting Justice Wiley Rutledge’s opinion in a 1947 case — in another dissent, as it happens. Perhaps some other justice in 2094 will be quoting Justice Breyer, with a similar indifference to how prescient his words will have proven.