Wednesday, June 22, 2022

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 complimentary 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.

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