Yesterday’s shameful Supreme Court ruling on Roe v. WadeIt was telegraphed several months ago.
But, during the angst-laden wait for the Supreme Court’s ruling on Roe, the court, so radically reshaped during the Donald Trump years, made hay trashing other vital precedents in its stampede to remake the country’s legal priorities in an extreme-right direction. This court will, with Roeruling, and a slew other rulings from past weeks, go down in history as the most destructive court in the United States, certainly the most destructive in post-Civil War era.
The six members who make up the majority on the court must be understood as far right extremists, not “conservatives.” By definition conservatives are not supposed to like sudden, jarring change; they are supposed to put a premium on stability and continuity. This court, on the other hand, is a radical activist court. They selectively destroy precedents to inject their far right vision of religion in U.S. society. They also reimagine labor and environmental law so that they harm consumers, degrade the environment, and benefit powerful corporate interest.
They have done more damage in education than in any other realm. This week’s startling Carson v. Makin decision, in a case coming out of Maine, effectively mandates that schools subsidize parochial religious education institutions at taxpayers’ expense.
The background is quite simple. Maine has been providing subsidies for a few residents living in rural areas with limited access to public schools for more than 40 years. But, in keeping with state law on the issue, it has limited the funding to “nonsectarian” schools. Recently, two sets of parents sued, arguing that the state should fund their children’s attendance at Christian schools.
Had precedent held any weight whatsoever, this case wouldn’t have made it past first base. It’s only fair that roughly three dozen statesKnown as Constitutional Provisions, have had long-standing provisions. Blaine AmendmentsMany of these laws, dating back to the 19th Century, prohibit the public funding of religious schools.
The Blaine Amendments are an important pillar supporting the idea that states have an obligation of funding non-religious educational institutions for all children. They are — ironically, given that this week’s Maine-originated ruling essentially struck them down — named after a 19th century Republican politician in Maine, James Gillespie Blaine. They were made federally possible by Congress in 1875, when a law required all new states to include the Blaine Amendment in their state constitutions.
In 2004, Locke v. Davey, seven of the nine Supreme Court justices ruled that a state-funded university scholarship program in Washington State could exclude theology majors, owing to the fact that the state’s Blaine Amendment prohibited stated funding for religious “worship, exercise, or instruction.”
That Supreme Court-endorsed wall separating public funding from religious education started to break down in the following decade, as the court’s composition shifted rightward.
2020: The Supreme Court eroded the separation of church & state when, in Espinoza v. Montana Department of RevenueIt was allowed to stand. Montana lawPeople who want to contribute to a scholarship fund to support their children’s religious school education can get tax credits. However, that ruling did not say anything about a state. may Provide such credits, and it also only provided for indirect state funding religious schools.
Now, the court has gone further: Carson v. MakinThe implications of this ruling are far more extreme than those in the Montana case. It basically states that if states choose to subsidize private schools through a program, they will. Must Include in the program direct subsidies for religious education. This lays the foundation for what could soon be a concerted legal effort against the principle of universally accessible, secular public education.
In a six-three ruling issued Tuesday, the Supreme Court declared that the Maine restrictions were discriminatory against religion and against religious people, and ruled the law — which emerged out of the bedrock principle of separation of church and state — null and void.
“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of Their choice,” page 3 of the majority opinion, penned by Chief Justice Roberts, notes. “Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program—including the prohibition on denying the benefit based on a recipient’s religious exercise.”
Religious schools don’t have to adhere to state standards or abide by anti-discrimination laws — the schools involved in the lawsuit don’t accept gay students. Moreover, religious schools don’t have to teach secular subjects, such as science, that would be mandated in any public school.
Justice Stephen Breyer, in his dissent, argued that this ruling which requires Maine to fund religious schools opens the door for a broad-based attack on the idea of universal, secular education. “What happens once ‘may’ becomes ‘must’?” he asked of his colleagues. “Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
These states are set to ban abortion now, as the radical-right Supreme Court has given their green light by overturning Roe, already have disproportionately powerful religious-right movements.
How long will it take, now that the Supreme Court has so severely weakened the state’s ability to withhold public education dollars sectarian school schools, before any other legislative house or right-wing governor who is looking for a radically disruptive education policy to champion, backs widespread state payments religious schools?
How long will it be before states or individual school districts start proposing educational “reforms” that have the effect of utterly undermining secular public schools and ultimately replacing them, or at least complementing them, with growing networks of sectarian education institutes?
Given all the other major stories competing for the headlines this week — from the overturn of Roe, to congressional hearings into the insurrection of January 6, to the war in Ukraine, to inflation, to primary season — it’s unlikely that Carson v. Makin will make it onto the public’s radar, but it should.
This ruling, which is largely under the radar, sets the stage for fierce battles in the future over public education funding in the U.S. in the coming years and decades.