Yesterday’s shameful Supreme Court ruling on Roe v. Wade was telegraphed 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 the Roe ruling and with a slew of other rulings from the past weeks, go down as arguably the most destructive court in United States history, certainly the most destructive in the 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, by contrast, is a radically activist court, selectively trashing precedents to inject a far right vision of the role of religion in U.S. society, as well as reimagining labor and environmental law so as to harm consumers, immiserate the environment and benefit powerful corporate interests.
In no realm have they done more harm recently than in education. 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 for the case is pretty straightforward: For more than 40 years, Maine has been providing subsidies to a few residents, who lived in very remote rural areas without easy access to public schools, to send their children to private schools. 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. After all, roughly three dozen states have long had constitutional provisions, known as Blaine Amendments, many of them dating back to the 19th century, banning the public funding of religious schools.
The Blaine Amendments are a critical pillar supporting the notion that states have an obligation to fund non-religious education institutions available to 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 pushed federally from 1875 onward, when Congress passed a law requiring all new states to add a Blaine Amendment into their state constitutions.
In 2004, in 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.
In 2020, the Supreme Court chipped away at the separation of church and state, when, in Espinoza v. Montana Department of Revenue it allowed to stand a Montana law providing tax credits to people who wanted to contribute to a scholarship fund for parents sending children to religious schools. But that ruling simply said a state may provide such credits; and, moreover, it only provided for indirect state funding of religious schools.
Now the court has gone much further: The Carson v. Makin ruling is far more radical in its implications than the Montana case was. It essentially asserts that if states do choose to have a program to subsidize some private schools, they must include in that program direct subsidies for religious schooling as well, and, in so doing, it lays the groundwork for what could soon become a concerted legal effort to undermine the principle of universally available, 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.
In his dissent, Justice Stephen Breyer argued that this ruling, which mandates Maine to fund religious schools, opens the door to a broad-based assault on the concept 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?”
Those same states, set to ban abortion now that this radical-right Supreme Court has given them the green light by overturning Roe, already have disproportionately influential religious-right movements.
How long will it be, now that the Supreme Court has so weakened the ability of states to withhold public education dollars from sectarian schools, before one or another legislative house or right-wing governor looking for a radically disruptive educational policy to champion, backs the notion of widespread state payments to 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.
With this ruling, largely flying under the radar, the Supreme Court has just set the stage for ferocious battles over the future of publicly funded education in the U.S. over the coming years and decades.