One of the most interesting lines in Justice Sonia Sotomayor’s dissent today in Carson v. Makin is this: “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.” Which I find interesting, because back when we were debating whether the Court should require the elected government to treat same-sex unions the same as traditional opposite-sex marriages, we were lectured endlessly about how this wouldn’t affect anybody else. But that was not so, just as it has not been so with other reasoned distinctions that government seeks to make in distributing scarce benefits, such as between citizens and noncitizens, or married and unmarried people, or people with and without children. There is always a cost to expanding the pool.
That alone does not decide any of these questions, of course: The Supreme Court’s job is to interpret the textual protection of rights and the textual limits to power, not to decide how to spend taxpayer money. It may have cost more money to tell states that they could not just cut black Americans out of benefits provided to white Americans, for example, but that is the necessary side effect of a constitutionally color-blind government. In fact, some racist governments did precisely what Sotomayor recommends here, as in the notorious 1971 case Palmer v. Thompson, where the Jackson, Miss., city council closed the city’s swimming pools entirely rather than integrate them.
But the reality is that Sotomayor’s concern — that requiring benefits to be paid to more people could result in cutting them, whether for fiscal reasons or because of objections to being compelled to subsidize people or things considered objectionable — is a legitimate state interest. It is not enough of a state interest to justify unconstitutional discriminations based on race or religion, but it is quite a turnabout to see it acknowledged in the same quarters that scorned it when it was convenient to do so.