Religion, schools and the Framers
To complement their prodigious knowledge of the law, the Supreme Court’s three so-called “liberal” justices apparently need to brush up on American history.
In Carson v. Makin, handed down Tuesday, they dissented together and separately, decrying this latest betrayal of the nation’s Founders. But America’s past wasn’t what they have asserted. Neither is America’s present.
Major news outlets are, alas, assisting in the misrepresentation.
The decision in Carson concerns secondary education in Maine — the “most rural state in the Union,” as Chief Justice John Roberts noted in the majority opinion — where fewer than half the school districts provide post-elementary public schools. These rural areas either send their middle- and highschoolers to other districts, or they provide tuition assistance to whichever accredited private school each family chooses.
At the outset this program included religious schools. Interestingly, the New York Times, the Washington Post and the Associated Press all fail to mention this fact, although it’s something Chief Justice Roberts notes early on: The state only began excluding religious schoolsfrom the program in 1981.
Instead, the New York Times opines — in its news coverage — that “expanding religious rights has been a signature project of the court led by Chief Justice Roberts.”
The Times is incorrect. The court’s decision to restore a public benefit to all Maine families, regardless of their religious exercise, is only an expansion of religious rights if you ignore the state’s earlier elimination of those rights.
While the Times distorts history of only 40 years’ vintage, Justice Sonia Sotomayor opens her dissent with a shout-out to the nation’s Founders: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”
While the late justice Antonin Scalia would be thrilled to have won Sotomayor over to the “originalist” school of interpretation, she has muddled the facts.
The “framers” are specifically the men who wrote the U.S. Constitution. The phrase “wall of separation between church and state” does not appear in either the Constitution or the Declaration of Independence.
It was coined in 1641 by Roger Williams, the Baptist minister who founded Rhode Island after suffering religious persecution at the hands of Massachusetts Puritans. Although he envisioned the wall of separation to prevent government from corrupting the church, he welcomed “the most paganish, Jewish, Turkish or anti-christian consciences” to his settlement.
Most colonies had an official church, however, and this status quo persisted well into the 19th century. That’s why Baptist ministers in Connecticut complained of their second-class status to President Thomas Jefferson, who approvingly cited Williams’s “wall of separation” in his reply.
Not only did state churches persist, but the U.S. Capitol itself hosted Sunday services from its earliest days to well beyond the Civil War. The wall of separation was rather porous.
It’s pretty clear from the Framers’ practice that the “Establishment Clause” was a prohibition against a national church. Since their religious inclinations were either Christian or deist, the services they attended en masse sprang from that limited range.
I do not long for those days. Our modern diversity makes such state-sponsored services unthinkable, but Christianity is still far and away the country’s dominant religion. This concerns Justice Stephen Breyer in his dissent.
“Members of minority religions, with too few adherents to establish schools, may see injustice in the fact that only those belonging to more popular religions can use state money,” he writes. “Taxpayers may be upset at having to finance the propagation of religious beliefs … withwhich they disagree.”
But we already are upset. Taxpayers already do finance, through public schools, the propagation of beliefs (not facts) — about identity and sexuality, to name just two — with which many disagree. Gender identity, human sexuality, moral behavior — most major religions specifically address these issues, but public schools increasingly promote ideas in direct conflict with many families’ religious beliefs.
This reality fails Justice Breyer’s notion that public schools are providing a “religiously neutral” “civic education” that is “free from indoctrination.”
Critics of the Carson decision are correct to fear that it may be pointing the only peaceful path forward, far beyond Maine.