Play In The Joints

Given the makeup of the 6-3 decision, with the usual suspects on their expected sides, there was almost no chance that the analysis of Carson v. Makin wasn’t going to be spun into an existential crisis preceding the end of the world as we know it.

The Supreme Court’s conservative supermajority effectively declared on Tuesday that the separation of church and state—a principle enshrined in the Constitution—is, itself, unconstitutional.

“Effectively” is doing far too much work there. The decision did nothing of the sort.

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively  penalizes the free exercise” of religion.

But then, that doesn’t mean the Court reached the proper rulings.

The First Amendment begins by forbidding the government from “mak[ing] [any] law respecting an establishment of religion.” It next forbids them to make any law “prohibiting the free exercise thereof.” The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second. The majority also fails to recognize the “‘play in the joints’” between the two Clauses.

The First Amendment starts with two clauses, the Establishment Clause and the Free Exercise Clause, which are simultaneously complementary and in tension. When they’re conflicting, a choice has to be made to favor one over the other, and it may not be the choice you would prefer.

The problem for Maine is that the logistical difficulties of maintaining a free and appropriate public education for all residents are a serious problem. Not enough kids. Too far apart. What to do? So the state shifted the problem to parents and offered tuition assistance instead. One condition of this assistance is that the education be secular.

That didn’t mean that religious institutions operating schools that provided a secular education couldn’t be funded, but that a non-secular, non-civic, education would not receive the benefit of tuition assistance because these were religious schools whose curricula incorporated religion in its education.

The majority compared it to the Supreme Court’s earlier cases where it held that denial of benefits just because the recipient was a religious institution was unconstitutional. But a distinction that’s fluffed over is whether the Constitution permitting the state from providing tuition assistance to a school that teaches religious doctrine is the same as holding that the state is obligated to do so if it provides assistance for secular education. The former involves the Free Exercise Clause, whereas the latter invokes the Establishment Clause. In other words, when a conflict between the clauses arises, which clause prevails depends largely on how the issues is framed and the status of how the case comes to the Supreme Court.

The question presented by Carson v. Makin is whether Maine, having chosen not to provide the requisite education to its residents, can deny tuition assistance to parents because they have elected to enroll their children in schools that provide a religious education. As Justice Breyer wrote in dissent, this gave rise to an Establishment problem.

Maine legislators who endorsed the State’s nonsectarian requirement recognized these differences between public and religious education. They did not want Maine taxpayers to finance, through a tuition program designed to ensure the provision of free public education, schools that would use state money for teaching religious practices.

Underlying these views is the belief that the Establishment Clause seeks government neutrality. And the legislators thought that government payment for this kind of religious  education would be antithetical to the religiously neutral education that the Establishment Clause requires in public schools. Maine’s nonsectarian requirement, they believed,  furthered the State’s antiestablishment interests in not promoting religion in its public  school system; the requirement prevented public funds—funds allocated to ensure that all children receive their constitutional right to a free public education—from being given to schools that would use the funds to promote religion.

Is it sufficient that it’s not the state, but parents, that made the election to pay over public funds to a school that would use them to promote religion? If the state didn’t like the options parents chose, it could always create its own schools and not provide tuition assistance at all. And if they would fund private schools that might discriminate on bases with which parents took issue, or have tuition requirements in excess of the assistance provided by the state that would fall on the parents’ shoulders, which they might not be able to afford or wish to pay, leaving parents with a dearth of options other than schools that incorporated religion into their curriculum, is that an “issue” for the state but not the parents?

Justice Breyer’s distinction, the use to which funds will be put rather than the status of the party to which funds are permissibly given, seems to be the best “play in the joints” between the Establishment and Free Exercise clauses. Schools run by religious institutions are different than religious schools, where students are schooled in religious dogma on the public’s dime. But then, this issue arises because of Maine’s choice not to provide the state-run and controlled secular education that it’s duty-bound to provide. If it did, and parents still wanted to send their kids off for religious indoctrination, it would be on their own dime, as opposed to the indoctrination in public schools.

24 thoughts on “Play In The Joints

  1. Paleo

    I don’t see how the government giving parents money and telling them “this is your child’s share of the state education cash pot. Use it to get them educated at an accredited school” amounts to the government establishing anything. So I don’t see the violation of the Establishment Clause.

    Then again, I’m not an angry progressive like the author and have no political filter to look at it through.

    I suspect this author is fine with Biden’s attempt to shut down disinformation, with disinformation defined as speech that Biden disagrees with. So Stern’s concern for the first amendment only extends to using it to vilify the other side.

    The SC released a decision related to double jeopardy this week which was much more offensive to the constitution. It’s actually worthy of criticism, but this clown won’t touch it because Gorsuch flipped over and voted with the Good Team and Breyer flipped and voted with the Bad Team. Or perhaps because the guy who got screwed was an accused rapist, so no rights for him. Either reason means it violates his narrative, so it’s of no use to him.

      1. Paleo

        In Texas the religious schools have to be accredited by the state and have to meet certain criteria designated by the state, like minimum school days in a year and curriculum offerings and so on. If the school isn’t accredited the students don’t get credit for passing the grade or graduating or whatever.

        I assume Maine has to be the same. I can’t imagine them being able to use state education funds for an unaccredited school, because there’s no purpose in that. Just completely wasting money.

  2. DaveL

    As an atheist who’s fought for secularism for my entire adult life, I must disagree with Breyer’s interpretation in the strongest possible terms. The intervening private choice severs any connection between government money and religious establishment. You can’t dock a government employee’s salary for the amount he chooses to donate to his church, on some theory that such donations violate the secular purpose of paying him for his work. The “play in the joints” lies in the freedom of the individual, not in some lawmaker’s or bureaucrat’s judgement of what private choices are sufficiently secular.

    1. SHG Post author

      The funds are provided for a particular purpose, a civic education. They’re not a gift to the parents to be used in any way they choose.

      1. DaveL

        Maine has compulsory education, for much the same purpose of ensuring children receive a civic education. Accredited private schools, whether religious or secular, meet the requirements of this law, and are therefore accepted as satisfying that purpose. It would seem strange to me to then turn around and claim religious schools do not satisfy that purpose, but only when it comes to parents’ choice of where to use their vouchers.

        1. SHG Post author

          Religious schools run the gamut of religious involvement. Are children receiving a normal civic education plus some element of religion or religious indoctrination that includes little to no civic education. Both may be called schools, but they are hardly the same.

          1. DaveL

            Right, so a distinction must be made between religious schools that provide a real education, and some rinky-dink madrassa that doesn’t see why girls would need to be able to read. The accreditation process is designed to make this distinction and has been making it for a long time. Accredited schools are accepted as providing a real, normal civic education for the purposes of compulsory schooling laws, for college admissions, and basically every other point of law where there’s a need to distinguish between genuine schools and imitations and frauds. So why would it not serve that purpose here?

      2. Joe Blow

        Most religious schools qualify as meeting the standards of a civic education. Valuing secularism is in itself a belief system. To say only completely secular schools should get funding is establishing a belief system. No institution or belief system is established if everyone gets an equal shot at vouchers at the discretion of parents.

  3. Paleo

    I didn’t say any purpose. They have to go to a state accredited school to be chosen by the parents. Otherwise the state could just assign them to a school and figure out how to get them there, which is a solution the state has apparently rejected.

    I mean no offense, but I don’t understand the objection. Is there a better fix for the problem?

    1. SHG Post author

      Something, something, reply button…

      The two schools involved were, in fact, accredited, but the Court didn’t include accreditation in the holding that the “nonsectarian” requirement violated free exercise. I agree with you that accreditation is an important distinction.

  4. Jay

    Give it a few years and Texas will tear down all its high schools and do this instead. This ruling gives the school vouchers crowd exactly what it wanted.

    1. David

      Has it ever occurred to you that the school vouchers crowd has a point? Or maybe the “public schools should teach children to become good progressive foot soldiers” crowd is wrong?

    2. Pedantic Grammar Police

      I hope you’re right. Our public education system is a garbage heap and the sooner we dump it the better.

  5. LawProf

    The problem is that the Court is moving toward (very close to) holding that people with sincere religious objections to a law do not have to obey it (think antidiscrimination laws, ACA contraceptive mandate, etc.). So far, the black-letter doctrine is that generally applicable neutral laws *do* apply even over religious objections, but (1) the Court keeps finding a way to hold that a particular law is not neutral or generally applicable; and (2) several Justices have indicated at one time or another that they disagree with the case (Smith v. Employment Division) that established the rule, and would prefer to go back to the prior doctrine requiring exemptions for sincere religious objectors unless that government can prove a compelling interest in not providing exemptions. Assuming they eventually overrule — or simply gut — the Smith case, then putting it together with the new Maine case gives us the following: Excluding religious people/entities from government benefits is constitutionally prohibited, but exempting them from government burdens is constitutionally required. That inconsistency favors religion over non-religion, and essentially writes the Establishment Clause out of the Constitution.

    1. Miles

      When one views organized religion as a silly indulgence, as so many do these days, then it’s far easier to slough off the balance between Establishment and Free Exercise, the “play at the joint,” and see it as writing the Establishment Clause out of the Constitution.

      But then, there are still people for whom their religious beliefs are meaningful, even if they conflict with the array of progressive social changes imposed by the constant barrage of new laws, rules and regs. If you don’t believe, or if you believe in the secular religion of social justice, then this looks like Establishment. If you do, it looks like Free Exercise.

  6. Anonymous Coward

    My first thought is that the Slate writer’s apocalyptic language makes it abundantly clear that he is most concerned about threats to his religion.
    From my porch this looks like prohibiting parents from using a school voucher for religious school violates free exercise while the alternative of allowing the option of spending that voucher at any accredited school secular or religious complies with the establishment clause.
    There’s also the practical concern of who’s running a school in a sparsely populated rural county? It may be that the religious school is the only game in town

  7. Keith

    The former involves the Free Exercise Clause, whereas the latter invokes the Establishment Clause. In other words, when a conflict between the clauses arises, which clause prevails…

    Why do you think the issue invokes the Establishment Clause?

    1. SHG Post author

      Any time money goes to a religious org, it raises the specter of the Establishment Clause, whether it turns out to violate it or not.

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