Religious Schools Can Get State Tuition Aid

The Supreme Court of the United States (SCOTUS) issued a decisive victory for religious freedom and school choice this week in a 6-3 ruling in the Carson v. Makin case.

The case revolved around a Maine school-choice program that allowed parents to access taxpayer dollars for private school tuition. However, Maine attempted to prohibit parents from using the program to attend a religious school.

On Tuesday morning, the U.S. Supreme Court, in an opinion by Chief Justice John Roberts, ruled that a Maine private-school-choice statute violated the First Amendment Free Exercise of Religion, writing:

“[T]here is nothing neutral about Maine’s program. 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.”

In response to this important ruling, Kelly Shackelford, President, CEO, and Chief Counsel for First Liberty Institute said:

We are thrilled that the Court affirmed once again that religious discrimination will not be tolerated in this country. Parents in Maine, and all over the country, can now choose the best education for their kids without fearing retribution from the government. This is a great day for religious liberty in America.

Illinois Attorney General candidate David Shestokas celebrates the ruling as well, saying:

The Supreme Court affirmed this nation’s commitment to religious liberty in the case of Carson v. Makin. The court established a far reaching principle that when the government makes a benefit available it may not restrict the benefit based upon religion. While the case involved tuition assistance in schools, the principle established has the potential to extend across our civic life and keeps faith with the First Amendment’s Free Exercise Clause.

Justice Stephen Breyer wrote the dissent. In the dissent, Breyer said the majority gave too little credence to the establishment clause and too much to the free exercise clause, saying:

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.

Yet the Chief Justice’s majority opinion ended with these three sentences:

Maine’s nonsectarian requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program, said the chief justice, operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

This is not the first time the SCOTUS ruled to uphold the religious exercise clause regarding taxpayer tuition aid for religious schools. In its June 2020 decision in Espinoza v. Montana Department of Revenue, the Court struck down a state scholarship program that excluded religious schools. And in 2017, the court found in Trinity Lutheran Church of Columbia, Inc. v. Comer that a church-owned playground can be eligible for a public benefit program.

Bottom line: The government should not discriminate against citizens who would choose to use their tuition-assistance for faith-based schools schools. Carson v. Makin is a victory not just for religious freedom but also for educational choice.

Many Christians and non-Christians misunderstand the relationship between morality and religion. Many mistakenly believe that morality is the same thing as religion and, therefore, mistakenly believe that they should not advocate for policies that reflect their moral beliefs. But morals and religion are not the same, and basing our decisions on public policies, laws, or elections on beliefs that derive from religious convictions does not constitute an unconstitutional establishment of a state religion.

All laws reflect or embody someone’s morality. The moral beliefs of people who hold theistic worldviews are no less valid in the public square than the moral beliefs of those who hold atheistic worldviews—which, of course, are faith-based also. The Establishment Clause of the First Amendment was intended to prevent the establishment of a state religion, not to prevent religious beliefs from informing political decisions.

People from diverse faith traditions or no faith could all arrive at the same position on a particular public policy. For example, although Orthodox Jews, Muslims, Catholics, Baptists, and atheists may all oppose abortion because they value human life, the reasons for that valuation of life differ. If there is a secular purpose for the law (e.g., to protect incipient human life), then voting for it does not violate the Establishment Clause of the First Amendment.

The sources of the various parties’ desires to protect incipient life are not the concern of the government. It would be not only absurd but also unethical for the government to try to ascertain the motives and beliefs behind anyone’s opposition to abortion and even more unethical for the government to assert that only those who have no religious faith may vote on abortion laws. Such an assertion would most assuredly violate the Free Exercise Clause of the First Amendment.

The religion clauses of the First Amendment were intended to protect religion from the intrusive power of the state, not the reverse. The Establishment Clause states that “Congress shall make no law respecting the establishment of religion.” That does not mean religious convictions are prohibited from informing political values and decisions. To expect or demand that political decisions be divorced from personal religious beliefs is an untenable, unconscionable breach of the intent of the First Amendment which also includes the oft-neglected Free Exercise Clause which states that Congress shall make no law prohibiting the free exercise of religion.

Legal theorist Michael Perry explains:

“[F]orcing religious arguments to be restated in other terms asks a citizen to ‘bracket’ religious convictions from the rest of her personality, essentially demanding that she split off a part of her self … to bracket [religious convictions] would be to bracket—indeed, to annihilate—herself. And doing that would preclude her—the particular person she is—from engaging in moral discourse with other members of society.”

To paraphrase Richard Neuhaus, that which is political is moral and that which is moral, for religious people, is religious. It is no less legitimate to have political decisions shaped by religion than by psychology, philosophy, scientism, or self-serving personal desire.

If allowing religious beliefs to shape political decisions represents a violation of the Establishment Clause and an inappropriate commingling of religion and government, then American history is rife with egregiously unconstitutional actions, for religious convictions have impelled some of our most significant social, political, and legal changes including the abolition of slavery, antiwar movements, opposition to capital punishment, and the passage of civil rights legislation.

Martin Luther King Jr.’s “Letter from Birmingham Jail” is replete with references to his Christian faith which informed his belief about the inherent dignity, value, and rights of African Americans, a belief which he lost his life to see enshrined in law. He wrote what would now certainly generate howls of opposition:

How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.  To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.

“Progressives” have no objection to people of faith participating in the democratic process so long as their views comport with “progressive” positions. Liberals never cried foul when Quakers or Catholics opposed the Vietnam war because of their religious convictions, and liberals do not object that Catholic opposition to the death penalty represents a violation of the “separation of church and state”–a phrase not found in the Constitution.

I don’t recall any “progressives” objecting when Senator Rob Portman and former president Barack Obama cited their religious beliefs in defense of their radical shifts in position on homosexual faux-marriage. Portman said,

The overriding message of love and compassion that I take from the Bible, and certainly the Golden Rule, and the fact that I believe we are all created by our maker, that has all influenced me in terms of my change on this issue.

After his flip-flop—er, “evolution” on faux-marriage, Obama, like Portman, cited the Bible as his justification:

When we think about our faith, the thing at root that we think about is not only Christ sacrificing himself on our behalf, but it’s also the Golden Rule, you know? Treat others the way you’d want to be treated.

In contrast, when conservative people of faith participate in the political process, citing their religion as the source of their judgments, suddenly the Establishment Clause has been violated.

Apparently neither Portman nor Obama think much about what the Bible says about sex, marriage, or repentance. And apparently, neither Portman nor Obama understand the Golden Rule. The Golden Rule does not require Christians to affirm all the desires, beliefs, and actions of all humans. It requires Christians to treat others as they—disciples of Christ—want to be treated as disciples of Christ.

And what should disciples of Christ desire? They should desire to follow God’s teaching more closely every day. They should desire to be willing to die to self and to take up their crosses daily. They should want their brothers and sisters in Christ to hold them accountable for their embrace of sin.

What the government must not do is impose laws exclusively religious in nature like Sharia laws. There should be no laws requiring the observance of any particular religion. No laws governing baptismal practices or Communion. No laws requiring prayer or circumcision. But, for example, people whose faith points to the worth of all people may legitimately work toward enacting laws that oppose capital punishment, euthanasia, or abortion. People whose religious beliefs include pacifism may legitimately work toward preventing or stopping military engagements.

No one is legally, constitutionally, ethically, or morally obligated to divorce their faith from their political decisions.

Richard Neuhaus argues persuasively in his book The Naked Public Square that a polity denuded of religion will be clothed soon enough in some other system that functions as religion by providing “normative ethics.” A democratic republic cannot exist without objective normative ethics that render legitimate the delimitation or circumscription of individual rights.

Historically, the sources of the absolute, transcendent, objective, universal truths that render legitimate our legal system have been “the institutions of religion that make claims of ultimate or transcendent meaning.”

Neuhaus argues that when religion is utterly privatized and eliminated as a “source of transcendence that gives legitimate and juridical direction and form, something else will necessarily fill the void, and that force will be the state.”

If the body politic claims there are no absolutes or delegitimizes religion as an arbiter of right and wrong, or good and evil, then the state will fill the vacuum, relativizing all values, and rendering this relativization absolute.

Lawmaking absent an understanding that there exist moral truths that are objective and universal would represent an illegitimate and hubristic arrogation of power.

What sense does outrage at human rights violations make if we assert there are no universal, transcendent, eternal, objective truths? And if we agree that these truths exist, that they transcend the subjective opinions of any particular individual, then what is their source other than a supernatural, eternal, transcendent being?

There are numerous factors that have resulted in a diminished valuation or recognition of the essential place of a belief in God as the source of transcendent truth in American society and politics, one of which is our remarkable cultural diversity. A healthy respect for the pluralism in America, however, need not and should not degenerate into what retired Campbell University law professor Lynn R. Buzzard describes as a “religion of secularism, excluding religion from participation in the pluralism.”

Princeton University law professor Robert George explains that our cultural degradation has, at least in part, resulted from an “orthodox secularism [that] stands for the strict absolute separation of not only church and state, but also faith and public life.”

Allowing religious institutions and ideas to inform our understanding of right and wrong, which is a necessary precursor to making legislative and juridical decisions, does not represent a violation of the Establishment Clause. Indeed, as Samuel Silver explains, “The government, as defined by the First Amendment and explained by its author James Madison, must remain neutral between various sects of religion, but it is not required to remain neutral between religion and irreligion.”

Prohibiting religiously derived understandings of right and wrong to shape political decisions, would, however, represent a violation of the Free Exercise Clause of the First Amendment. Buzzard writes that “Free Exercise will not be construed as merely creating a zone of non-governmental interference or the creation of an exemption from conscience-opposed activity, but the opportunity to be full partners in the pluralism of our day.”

To leftists, the idea of a separation of church and state no longer points to the importance of protecting religious freedom from the intrusive power of the state but instead refers to coercively eradicating theologically orthodox religious expression from the public square. Only secular or theologically heterodox worldviews, which are as shaped by myopic, dogmatic, unproved assumptions as secularists claim theologically orthodox religious worldviews are, will be tolerated in our pretend-tolerant society.

Listen to this article read by Laurie:

https://staging.illinoisfamily.org/wp-content/uploads/2021/09/Do-Christians-Regularly-Violate-the-Separation-of-Church-and-State.mp3

Written by Dr. John A. Sparks

Among recent actions by the U.S. Supreme Court, a four-sentence order may set the stage for the court to eventually address the collision between free speech and religious freedom on one hand and gay rights on the other. The order voided a judgment by the state of Oregon that had imposed a $135,000 fine on Portland-area bakery owners—the Kleins—for refusing to bake a wedding cake for a lesbian couple. Oregon maintained that its anti-discrimination law condemned such a rebuff even when the bakery owners’ religious convictions run counter to participating in a same-sex wedding.

Besides vacating the fine, the court sent the case back to the Oregon Court of Appeals to be reconsidered in light of the Masterpiece Cakeshop decision. Masterpiece involved a similar situation in Colorado for Christian baker, Jack Phillips, when he refused, on religious grounds, to bake a wedding cake for a gay couple’s marriage. In Masterpiece, Colorado’s case against Phillips had relied on language in an earlier case, Employment Division v. Smith (1990), which said that religious liberty claims could not be used as a defense against “generally applicable” laws that were “neutrally” enforced. However, the U.S. Supreme Court found that the Colorado proceedings against Phillips were far from “neutral.” In fact, they were rife with religious hostility toward him. Besides that, the court found that Colorado had selectively enforced its anti-discrimination laws, making them less than “generally applicable.”  Now the court is ordering the Oregon court to review the Klein case looking for the same examples of unfairness it had discovered in Masterpiece.

Klein is the second case of this type that the U.S. Supreme Court has sent back to the courts below for reconsideration in light of the Masterpiece decision. Earlier, the Washington Supreme Court was ordered to make such a review in a case involving a florist, Barronelle Stutzman, and her business, Arlene Flowers. Stutzman had refused to provide wedding flowers for a gay couple’s ceremony. Just recently (June 6, 2019), the Washington court found that proceedings were not conducted with “religious animus.” The Washington court closed that review by repeating its conclusions that neither free speech, free exercise, nor freedom of expression were infringed upon by the anti-discrimination law in question.

It seems likely that the Oregon court will make similar findings of the absence of religious hostility. Once the Oregon court has spoken on the matter in the way it is expected to rule, the questions of religiously hostile proceedings and selective enforcement will have been disposed of. That will leave the central constitutional questions of free speech and free exercise of religion for the U.S. Supreme Court to face which it effectively avoided in Masterpiece. The arguments on those issues made by the Kleins and Mrs. Stutzman in their existing court filings will be brought up again.

What are the Constitutional claims supporting the positions of faith-guided commercial providers who are asked to set aside their religious beliefs by customers who ask them to offer services contrary to their convictions?

The first basis for relief from the reach of the anti-discrimination laws is the claim that such laws violate the freedom of speech of the providers. At first blush, it may seem a stretch to regard baking a cake or arranging flowers as “speech.” However, federal Constitutional cases have long recognized that protecting speech is not limited to “the spoken or written word.” Engaging in conduct that expresses a point of view or idea is speech, and that expressive conduct is protected by the First Amendment.

In addition, and important for these cases, citizens cannot be forced to deliver a message provided by the government or another person. The oldest and best-known case recognizing this idea—called the “compelled speech doctrine”—is W. Va. State Board of Education v. Barnett. There the court said that public school children could not be required to salute the American flag or say the pledge of allegiance when to do so was against their religion’s teaching. The case, though it involved religious convictions, is usually viewed as a free speech case in which the court forbade the government from making citizens express a message contrary to their beliefs. Both wedding providers—the Kleins and Stutzman—maintain that Washington and Oregon laws are, in effect, requiring them to use their artistic expression to further a conjugal union against which they have serious religious reservations, or face a legal penalty. When their only other choice is to abandon the means to make a livelihood that they have chosen, the burden placed upon them is unconstitutional.

The second constitutional claim asserted by the two wedding providers is that their religious liberty under the Free Exercise clause of the First Amendment has been denied to them by the anti-discrimination laws. Employment Division v. Smith, as already mentioned above, makes that claim more difficult. The Smith defendants consumed an illegal drug—peyote—as part of a Native American religious ceremony. They were dismissed from their jobs with a drug rehabilitation organization and lost a claim for unemployment compensation. They argued that their free exercise of religion was being infringed upon by Oregon.

The U.S. Supreme Court disagreed, maintaining that “neutral” and “generally applicable” regulations could not be avoided by religious liberty claims. The result was probably right: religious ceremonies do not give participants the right to use controlled substances. But, unfortunately, the court’s opinion needlessly swept away an almost three-decades-old case which had established a sensible legal formula for addressing those instances in which religious convictions clash with existing legislation. That formula, called the Sherbert test after Sherbert v. Verner (1963), protected religious believers when the court found that a law or regulation “substantially burdened” their “free exercise of religion,” and that the government had no “compelling interest” at stake, or that it overlooked a “less restrictive” way to further its interest. Congress vigorously sought to counter the Smith decision by passing the Religious Freedom Restoration Act (RFRA), which required the restoration of the Sherbert test. However, the RFRA was ruled as only applicable to federal laws and regulations and not to the states and therefore does not help the Kleins and Stutzman.

Given the clear facts of these cases, and the uncertainty that remains for religious providers, it is high time for the court to hear and decide them. For the most part, the reasoning of Smith should be discarded and Sherbert reinstated. The court should not avoid these fundamental questions of free speech and free exercise of religion any longer. Rather, it must courageously set the cases for oral argument and address these key issues head on.

This article was originally published by The Institute for Faith & Freedom.