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Carson v. Makin is a victory for freedom

Washington Examiner logo Washington Examiner 1 day ago Adam Carrington
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On Tuesday, the Supreme Court decided Carson v. Makin. In its compelling decision, the court struck another significant blow for equal government treatment of religion.

The case concerned a Maine program that provides education to students in (mostly rural) areas that don't have secondary schools. Among the educational options, students can attend private schools with the state footing the tuition bill. That is, the state will pay so long as the students' parents choose a "nonsectarian" school. No religious institutions qualify.

The court considered whether this program violated the First Amendment's Free Exercise Clause: "Congress shall make no law … prohibiting the free exercise [of religion]." By a 6-3 vote, the justices determined it did violate the clause.

They saw a clear path to this conclusion based on recent precedents. In cases from 2017 and 2020, the Supreme Court had concluded that when the government offered a benefit to private persons or groups, it could not exclude others based on religious status. It understood the Free Exercise Clause to require the government to treat religious persons and groups equally with their secular counterparts. Otherwise, the government placed a burden on persons because of their religious beliefs and actions. The government thereby made that exercise of religion less free.

On Tuesday, the court found that Maine violated the same principle. Persons faced a financial burden for choosing religious private schools, which they would not if they instead picked private secular institutions. Absent a compelling reason for the distinction, the court found the program infringed on Constitutional rights.

The majority cast the case as a victory for equal treatment. The dissents painted a much darker picture. Justices Breyer and Sotomayor argued that the majority now forced the states to violate the other religion clause found in the First Amendment: the Establishment Clause: "Congress shall make no law respecting an establishment of religion." In particular, Justice Sotomayor said this decision "leads us to a place where separation of church and state becomes a constitutional violation."

The dissents concerned themselves with how to respect both religion clauses. Rightly so. Breyer correctly states, too, that precedent has made fitting the two together coherently a difficult task.

But the dissents made two notable mistakes. First, they overstated the Establishment Clause's extent to the detriment of the free exercise of religion. They argued in favor of neutrality regarding religion as fidelity to the Establishment Clause. Their arguments instead push for governmental power to disfavor religious persons. Their neutrality requires that the government not merely keep churches and governments distinct, as the Constitution demands. They instead required that government favor secular persons and groups in giving public benefits.

Breyer did try to make a distinction between religious persons' status, which can't receive discrimination, and religiously focused action, which governments can refuse to fund. But this distinction between who people are and what they do did not cut it for these justices when arguments about gay rights and marriage were concerned. What you are is exercised through actions done related to that status. If that connection is good enough for arguments regarding marriage for the dissenters, it should so be here, meaning religious status is respected through protecting religious actions.

Second, the dissents took the implications of the majority's ruling too far. This decision does not, as Justice Sotomayor claimed, "direct the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction." As the majority notes, neither Maine nor any other government must offer benefits to private persons or groups. Only when it chooses to do so must the state government treat religious and secular alike. That leaves plenty of room for governments to act directly and apart from requirements to fund religious-based entities. In this instance, for example, they may form their own public schools. That might not be the preferred path states would like to take. But the First Amendment isn't about respecting state preferences. It concerns protecting individual rights.

We should not lament this decision for what it is not. The distinction between church and state remains firmly secure as the framers understood it. Instead, we should celebrate this decision for what it is: another win for religious liberty.

Adam Carrington is an associate professor of politics at Hillsdale College. 


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Tags: Opinion, Beltway Confidential, Blog Contributors, Opinion, Religious Freedom

Original Author: Adam Carrington

Original Location: Carson v. Makin is a victory for freedom


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