The Supreme Court appears poised to use an under-the-radar case to upend the idea of freedom of religion

​U.S. Supreme Court, 2021
U.S. Supreme Court, 2021

The United States Supreme Court dominated headlines recently when it appeared ready to strike down Roe (or weaken it drastically). That drew our attention away from another case. I want to focus on it.

Carson v. Makin concerns a Maine law prohibiting the state from funding religious use at religious schools on the grounds that doing so would violate the First Amendment’s separation between church and state. Such restrictions do not apply to schools, public or private, that endeavor to uphold the difference between religion and education.

That appeared to rub the court’s six conservatives the wrong way. They seem ready to minimize the establishment clause of the First Amendment and instead maximize its free exercise clause. That way, the Maine law forbidding funds for one kind of school but not for another kind seems like discrimination against a particular religion. That religion would be a variant of Christianity, as the rural Maine schools in question are not linked to synagogues, temples or mosques.

If the high court rules in the plaintiff’s favor, Maine taxpayers will be forced to fund religious use even though some of those schools clearly discriminate on the basis of sexual orientation and gender identity. In effect, the court seems ready to compel the underwriting of prejudice in the name of equality. If that happens, we can expect similar cases in states around the country — all in the name of “school choice.”

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To understand this moral and legal perversion of the United States Constitution, I got in touch with Christopher Jon Sprigman. In addition to being a contributor to the Editorial Board, Chris is the Murray and Kathleen Bring Professor of Law at New York University and co-director of its Engelberg Center on Innovation Law and Policy.

Christopher Jon Sprigman: It should be a case in which the establishment clause plays a substantial role. But it probably won’t. I suspect the court’s right-wing majority will continue to ignore the establishment clause and blow up the free exercise clause into a broadly applicable special rights provision. A free ticket for the religious to exempt themselves from federal and state laws – most importantly, public health and anti-discrimination laws.

JS: Do these special rights provisions apply equally?

CJS: The court is on a mission to remake free-exercise law. Not too long ago, it held that religious people and organizations could not claim special exemptions to generally applicable law so long as that law applies equally to religious and non-religious actors. The court’s right-wing majority has been working to displace that rule with one that presumptively gives religious actors an exemption from state or federal laws if there is any exemption for a secular actor or activity.

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JS: So all religions, then?

CJS: Hmmm, I doubt it.

JS: How would they fudge that?

CJS: Some of the religious schools at issue in the Maine case insist on some really bigoted views toward gay people, for example. The Supreme Court seems unbothered by that. But I don’t expect the court’s conservatives are going to welcome state funding of a madrasa that teaches that the US should be governed by sharia law. How are they going to distinguish? Not honestly, but they’ll manage.

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JS: Are we talking about compelling states to fund religious schools and their religious activity but only the right kinds of religions?

CJS: First comes the shift in free exercise law, which compels everyone – including the secular – to give money not just to schools with religious status, but for religious uses. That line between religious “status” and religious “use” – that government could not discriminate on the basis of the former but was entitled not to fund the latter – is in the process of being erased. This means, if the Maine case goes the way the oral argument suggested it might, that the state may be pulled into the enterprise of funding explicitly religious activities under the guise of “neutrality” between religion and non-religion.

JS: How far can that go, though?

CJS: Well, I doubt even this court would allow a state to set up a favored religion. That would run into the establishment clause. But in practical terms the court’s direction benefits Christian religious institutions the most. They typically seek government support.

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JS: But they surely won’t be alone for long? Would the court refuse to hear a case coming from, say, a synagogue or a Hindu temple?

CJS: I doubt it. But again, these are small minority religions in the US. Public funding will overwhelmingly flow to Christian denominations.

JS: The court seems to be inviting religious schools to return to their original status as all white. Many were founded to get around integration. Threats to that launched the anti-Roe movement.

CJS: We have an inkling of that in the Maine case. The state prohibits schools that discriminate on the basis of sexual orientation from receiving public funds. Maine has pointed out that even if the schools win on free exercise grounds, they lose on the basis of state anti-discrimination law. It’s possible the court eventually dismisses Carson, because the schools can’t get relief in any event. But it’s also possible that the next target is state anti-discrimination laws.

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JS: So this is targeting anti-discrimination laws on the grounds that they discriminate against certain religions?

CJS: Yes, because if Maine can’t deny funding on free exercise grounds to schools that discriminate on the basis of sexual orientation, then one immediately wonders where they get the right to ban such discrimination and extend that ban to religious institutions.

JS: There’s no end in sight if that takes hold.

CJS: That’s where some fear this is headed – toward establishing a special right for religious institutions to discriminate on the basis of sexual orientation, gender, and then, eventually, race.

The court has made all of this up out of whole cloth. The constitution contains the establishment and free exercise clauses. Its recent decisions are an about-face on a long history of insisting that religious institutions were protected against discrimination but not against generally applicable laws that didn’t discriminate against religion.

JS: I can’t help thinking of the Hyde Rule. The idea is if you disagree with abortion you shouldn’t be forced to fund it. If I don’t think, say, Islam is a real religion, why am I forced to pay for its activities?

CJS: I agree. One of the Christian schools in the Maine case teaches that Islam is not a real religion. And it looks likely that the Supreme Court will force Mainers who don’t agree with that to send public money to support it. The right-wing majority on the Supreme Court is remaking free exercise law to force governments to fund Christian religion generally. That’s who’s going to benefit – the majority religion.

JS: Let’s close with your opinion on this. The big picture?

CJS: The Supreme Court is a political institution. The justices are political actors making political decisions. The constitution only occasionally tells us what to do with any precision. Mostly it’s open to interpretation. Interpretation – at least with this court – is about enforcing political preference. That is clear to anyone who isn’t paid to believe otherwise. We need to start curbing the power of the courts – they shouldn’t be making so many important decisions in our society. Term limits for judges, court expansion or my preferred route, stripping the courts’ jurisdiction, thereby shrinking judicial power.

JS: Many thanks for taking time to chat with me.

CJS: John, thank you!

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