Court’s disastrous decision broke the wall between church and state

On Tuesday, the Supreme Court took another major step toward dismantling the wall separating church and state, recognizing that the state of Maine is constitutionally mandated to subsidize religious education when it pays for private secular education. required from. The implications of this decision in mandating government financial support for religion are enormous.

The First Amendment states that “Congress shall not make any law respecting an establishment of religion or prohibiting the free exercise thereof.” In 1947, the Supreme Court ruled that the prohibition against the establishment of religion applied to the actions of state and local governments. All nine judges in that case agreed that this provision could best be understood, through the words of Thomas Jefferson, that there should be a wall separating church and state.

For decades, the court applied this principle in limiting the government’s ability to provide financial aid for religious activities, including religious schools. This followed James Madison’s view that taxing people for supporting the religions of others was abhorrent. The central idea is that the government and its use of funds should be secular.

But now the law has changed dramatically, and not only is the Supreme Court allowing aid to religious schools, but it is also saying it is constitutionally required.

Makin, decided Tuesday, involved a Maine law that applies to areas that are too rural to support a public school system. In those areas, school administrative units provide funds for parents to send their children to private schools. Maine requires that the money be used in secular schools, not communal schools. Maine says it aims to provide free, non-religious education to every student.

Two families who wanted to send their children to religious schools challenged the Maine law, arguing that not subsidizing religious education violated the free practice of their religion. The court’s 6-3 decision, divided on ideological grounds, ruled in favor of the challengers, holding that not making public payments for religious education while it paid for non-religious education violated the Constitution. Is.

This majority opinion, written by Chief Justice John G. Roberts, completely ignores the First Amendment’s prohibition on establishment of religion. As Justice Stephen Breuer noted in his dissent, “The Establishment Clause prohibits a state from paying for the practice of a religion. And state neutrality with respect to the education of the practice of religion is at the heart of this clause.”

Until five years ago, the court had never held in American history that the free practice of religion required the government to subsidize the religion. But in the 2017 case Trinity Lutheran v. Comer, the court held that Missouri violated the free practice of religion when it subsidized the resurgence of playgrounds in public schools and secular private schools, but not in religious schools. Roberts, who also penned that opinion, included a footnote emphasizing that the case only addressed the issue of funding “resurrection of the playground”, and not other “religious uses of funds”. .

The court now breaks down the wall of segregation – already damaged by the Trinity Lutheran case – by declaring that religious education is required to be constitutionally paid for whenever the government subsidizes private education.

The decision has major implications for many areas of public policy. Throughout the country, including California, public school systems pay for charter schools. The law has always ensured that publicly funded charter schools must be secular. But now with this ruling, there is a strong argument that refusing to pay for religious charter schools is a violation of the free exercise of religion.

There is no stopping point and no reason why this approach would be confined to the school context. If the government provides funds for the historic preservation of buildings, it must subsidize the maintenance of churches, synagogues and mosques. If the government pays for alcohol or drug rehabilitation programs, it must subsidize faith-based programs.

There has been a long debate as to whether the government can provide such assistance to any religious group as well or whether its choice to do so would be an improper establishment of religion. Now, however, the court’s conservative majority are saying that subsidies for religion are constitutionally mandated. It is basically cutting out the establishment clause from the constitution.

Shortly before leaving the Supreme Court, former Justice Sandra Day O’Connor said: “Those who will renegotiate the boundaries between church and state must answer a difficult question: why would we trade such a system. Who has served us so well who has served others so poorly?” Unfortunately, Roberts and conservatives offer no answer to this question.

Irwin Chemerinsky is the dean of the UC Berkeley School of Law. ©2022 Los Angeles Times. Distributed by Tribune Content Agency.

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