It’s important to look at dissenting high court decisions
Whenever the Supreme Court comes down with a particularly momentous decision, it’s customary to look at the majority opinion. That’s because, after all, the majority makes the law. Or to put it another way, sticks and stones may break my bones, but the words of the majority can really hurt me.
Sometimes, though, it’s the dissenting opinions that are more interesting, more shocking, more passionate and in a very small number of cases, more influential. John Marshall Harlan was nicknamed “The Great Dissenter” because he disagreed with so many of his court’s decisions during a storied lifetime on the bench. In some very important instances, his dissenting views became the basis of future majority opinions. The most famous example is the 7-1 majority in Plessy v. Ferguson, upholding the “separate but equal” standard used to support legal segregation. Harlan was the only holdout, writing in dissent that the Constitution was “color blind” and that “in this country, there is no superior, dominant ruling class of citizens.”
Fifty-eight years later, in Brown v. Board of Education, the Warren Court overruled Plessy. Justice Harlan was posthumously vindicated. Then you have the dissenters who regularly file opinions that run counter to common sense, words that reflect a backward view of the constitution and a very personal animus toward certain groups, certain principles and certain perspectives. That’s why I wanted to focus
on the dissents in a case handed down this week, because they carry very little of the wisdom and prescience found in Harlan’s work.
In Carson v. Makin, a majority composed of Chief Justice Roberts, along with Alito, Thomas, Gorsuch, Kavanaugh and Barrett, ruled that it was a violation of the Free Exercise Clause to deny public funds to parents who want to send their children to a religiously-affiliated secondary school. The controversy arose out of Maine, which had a program that provided money to parents who lived in school districts that didn’t have high schools. The taxpayer money was designed to allow these children to obtain the equivalent of a
public education by attending private institutions of their choice. However, private sectarian schools were the only schools specifically excluded from the program.
The plaintiff in Carson wanted to use the public money to attend a religious school, in violation of a state prohibition. He sued and lost in the lower courts. But in the majority opinion written by Justice Roberts, the court held that it was a violation of Free Exercise Clause to deny public money to a citizen simply because the school he was attending was religious. In response to arguments that this was an impermissible “support” for religion on the part of the state, Roberts wrote that “the state pays
tuition for certain students at private schools-so long as the schools are not religious. That is discrimination against religion. A state’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Seems reasonable, because it is. Only those who think that the Wall Between Church and State is electrified and covered in barbed wire have a problem with the principle.
Enter the dissenters. Justice Breyer penned an opinion joined by Justices Kagan and Sotomayor. It’s a very disingenuous piece of literary gamesmanship, an attempt to gaslight us into thinking that he wants to “honor” religion by making sure he starves religious schools. In a particularly ironic passage, Breyer writes that “In my view, Maine’s is also constitutional because it supports rather than undermines the Religion Clause’s goal of avoiding religious strife.” He then goes on to point out that people from minority faiths will feel annoyed if they think majority religions are being given an unfair advantage. He’s clearly referring to Christianity when he talks about favoritism, because the plaintiff in this case wanted to go to a Christian academy.
He writes that “Taxpayers may be upset at having to finance the propagation of beliefs that they do not share and with which they disagree.” What Breyer ignores, and what Roberts makes clear, is that the citizens who are barred from using taxpayer money to go to the schools of their choice are the ones being discriminated against. They are equally justified in being upset that the state would penalize them because they choose to go to a religious school as opposed to another sort of private institution. And let’s be clear: this is not about public vs. private. This is about secular vs. religious, two very different things.
But where Breyer may use shaky logic, at least he hides his disdain for religion under elegant prose. Justice Sotomayor wasn’t satisfied with joining his opinion. She had to weigh in with her own words, and they were choice.
In one particularly revelatory passage, where she sounds like Cassandra warning the Trojans about the Greeks hiding in that annoying horse, Sotomayor warns society at large of the evil lurking within the majority opinion: “n just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”
You can feel the sneer in “religious indoctrination.” She continues: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
And finally: “With growing concern for where this Court will lead us next, I respectfully dissent.”
Cue the scary organ music. There is nothing remotely respectful about Sotomayor’s dissent. She is doing what the majority in Plessy did years ago, turn people of faith into second class citizens who don’t have a right to the same benefits that secular folk can claim. It’s really quite repugnant, but not surprising. Of late, Sonia’s been increasingly strident in her attacks on a society that doesn’t agree with her philosophically or politically.
The good news is that her dissent was joined by one person: her. It will not have the impact that Justice Harlan’s dissent in Plessy had, and although I can’t be sure, I suspect that future generations will look at her words as a desperate attempt to keep religion marginalized, behind a wall that exists only in the minds of the prejudiced and intolerant.