Overlooked in the controversy over their overturning of Roe v. Wade was another SCOTUS decision that will also have a great impact on children in the future.
The Death of Separationism and the Life of School Choice | Law & Liberty - John O. McGinnis:
June 23, 2022 - "In a Supreme Court term of many consequential decisions, Carson v. Makin stands out for its likely enduring legal and political effects. In Carson, which was handed down on Tuesday, the Court held that Maine could not prevent parents from using its tuition assistance for rural residents at sectarian religious schools. As Chief Justice Roberts said, a 'State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.'
"The case is the culmination of a series of rulings in which the Roberts Court has held unconstitutional any condition that withholds generally available state aid from religious institutions. Previous cases had prevented aid from being withheld on the basis of the religious identity of the institution. This case extends that principle to prevent it from being withheld on the basis of the religious use to which the institution puts the tuition assistance — in this case to a school that includes religiously based instruction. The Free Exercise Clause requires neutrality between religious and nonreligious institutions and uses to which citizens can put their government-provided assistance.
"The doctrine of unconstitutional conditions is familiar across the breadth of constitutional law. A state, for instance, could not prevent citizens from using generally available tuition assistance for private schools on the basis of what a teacher said about the American Revolution, because that would be an unconstitutional condition on free speech. Carson makes clear that the doctrine of unconstitutional conditions is as applicable to Free Exercise as to other constitutional rights.
"The broader significance of Carson v. Makin is that the Court has made it clear that the Free Exercise Clause will be treated like other rights and will not be limited by the nonoriginalist principle of Separation of Church and State. The case ... spends little time quoting sources from the founding on the meaning of either the Free Exercise or Establishment Clause. It is nevertheless informed by the movement toward originalism, because what has historically distinguished the treatment of the Free Exercise Clause from other rights is a nonoriginalist view of the Establishment Clause, namely that it incorporates a broad and wooly principle of Separation of Church and State. And that view was itself sometimes supported by a faulty originalism, relying on a few snippets from founding era materials, like Thomas Jefferson’s 'wall of separation' comment in his reply to a letter from the Baptist Church in Danbury, Connecticut.
"If the Constitution had indeed established a principle of complete separation, it is plausible that a state would have a compelling or at least substantial interest in preventing parents from using generally available aid at a religious school. Separationism would suggest that religious institutions and the state must have no connection. Separationism also animates the notion there must at least be some 'play in the joints' between the two Clauses, meaning that a state’s concern about the Establishment Clause could justify restrictions on the scope of Free Exercise rights.... But the Carson majority notably does not deploy the phrase, 'play in the joints.' The dissents by Justice Stephen Breyer and Sonia Sotomayor rely on that phrase a total of nine times between them. The dissents also expressly relied on separationism, while the majority dismissed any separationist concern. Thus, the meaning of the Establishment Clause is what ultimately divides the Court....
"Scholarship debunking the separation of church and state as the original principle lurking behind the Establishment Clause has been crucial to recent developments in the religion clauses, because it provides the background for Carson’s doctrinal moves. In particular, Philip Hamburger’s magisterial Separation of Church and State shows that there was very little opinion at the time of Framing that attached anything like this principle to the Establishment Clause. The use of the term by Thomas Jefferson (not of course a Framer) was extremely unusual. Instead, according to Hamburger, what animated the Establishment Clause was the concern of religious dissenters that they not suffer discrimination and that the state, as Hamburger puts it, not take 'cognizance' of religion by creating religious tests and putting other religiously infused requirements into law. Measured against this understanding of the meaning of 'establishment' and its dangers, Carson’s insistence that religious schools not be discriminated against in generally available programs is completely consistent with the Establishment Clause’s strictures. A program that is non-preferential between secular and any religious education hardly establishes a religion....
"Carson is not only important for what it does for Establishment Clause jurisprudence but what it does for the school choice movement. That movement already has political momentum. First, many public schools have been heavily criticized for closing for too long during the pandemic with substantial losses of learning, particularly for the poorest students. Second, many parents are furious with what their public schools are teaching, viewing commonly used history curricula in particular as tendentious and unpatriotic. Many also worry about an emphasis on equity over excellence. As a result, a parental rights movement is emerging as a powerful electoral force.
"School choice is the logical institutional manifestation of parental rights. A parent who can choose the school his or her child attends has more influence on the child’s education. At a traditional public school, a parent can only vote in a school board election, and once the school board is elected, he or she retains no substantial leverage at all. School choice provides the invaluable right of exit. Carson assures those who want to send their children to religious schools that religious choices can never be excluded from a choice program. Thus, it energizes parents who want a religious alternative to the traditional public school to join with parents who want alternatives for secular reasons. The ruling thus contributes even more energy to one of our most important contemporary social movements."
Read more: https://lawliberty.org/the-death-of-separationism-and-the-life-of-school-choice/
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