Legal expert slams the Supreme Court’s right-wing supermajority for dismantling separation of church and state

On Tuesday, June 21, the U.S. Supreme Court handed down a 6-3 ruling in Carson v. Makin — a case involving private religious schools and taxpayer-funded tuition assistance. The High Court’s right-wing supermajority ruled that yes, taxpayer dollars can be used for tuition assistance for strict Christian fundamentalist schools — even if they have discriminatory practices such as excluding gay students.

Legal expert Elie Mystal examines this ruling in an article published by The Nation on June 22, slamming it as a shameless attack on the United States’ separation of church and state.

“Carson v. Makin…. deals with a law in Maine that provides tuition assistance — vouchers, basically — for students who live in districts where no public secondary school is available,” Mystal explains. “The public taxpayer money is available to families so they can send their kids to private schools in their area, but not ‘sectarian’ schools. Some families in Maine wanted to use this public money to send their kids to religious schools, specifically Bangor Christian Schools and Temple Academy. Both schools ‘candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians,’ the New York Times reports.”

The 1st Amendment to the U.S. Constitution promises freedom of religion, but it also makes it abundantly clear that the government cannot favor one religion over another. According to the 1st Amendment, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” But in Maine, under the Carson v. Makin ruling, taxpayers will be funding a strict version of Christianity.

“The Supreme Court, by a vote of 6-3, reversed the lower courts and ordered the state to pay tuition to these religious institutions,” Mystal says of the Carson ruling. “Writing for the majority, Chief Justice John Roberts ruled that Maine’s prohibition on funding religious education actually discriminated against those religious institutions, and thus violated the ‘free exercise’ clause of the First Amendment. Roberts argues that since Maine makes tuition assistance available for nonsectarian private schools, which it does, it must make the same money available for religious instruction.”

Mystal continues, “There is, of course, an argument to be made that Maine shouldn’t make public money available for private schools at all, regardless of religion. There is an argument to be made that Maine should get its act together and provide free middle schools and high schools to students in all of its districts…. Free exercise of religion should mean that religious schools in Maine are free to indoctrinate their charges however they want, but taxpayers in Maine should not have to pay for it.”

The three dissenters in Carson v. Makin were appointed by Democratic presidents: Justice Sonia Sotomayor, Justice Elena Kagan and Justice Stephen Breyer, who is retiring and will be replaced by President Joe Biden’s nominee, Judge Ketanji Brown Jackson, later this year. Sotomayor, Mystal notes, was especially vehement in her dissent, writing, “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

“She’s right, of course,” Mystal says of Sotomayor, “and what should truly worry the remaining secularists in this country is the sheer speed with which the conservative court has torn down the wall between church and state…… Americans tend to think of the separation of church and state as one of our foundational principles. And it was. But it’s not anymore. Nothing good can survive the conservative takeover of the Supreme Court, and it doesn’t take these conservatives long to dismantle whatever it is you hold dear.”