By: Carrie Campbell Severino – nationalreview.com – June 21, 2022

The First Amendment never uses the term “separation of church and state.” It instead contains two religion clauses: one that prevents Congress (or, since the 14th Amendment, the states) from passing any law establishing a state church or “respecting” such an establishment; and the other protecting the free exercise of religion from government prohibitions. A myth has grown up around Thomas Jefferson’s 1802 phrase “wall of separation” that treats religion, not as a thing the government cannot mandate or regulate, but as a kind of kryptonite the government must avoid any contact with even if it means separation of religious people and institutions from equal participation in what the state provides. That is not what the establishment clause was understood to mean in 1791, and today, the Supreme Court went further: It concluded that discrimination of that sort violates the free-exercise clause.

This morning’s 6–3 Supreme Court decision in Carson v. Makin, written by Chief Justice John Roberts, is a huge victory for the freedom of religious parents to educate their children in the school of their choice on the same terms as non-religious parents. Maine long ago established a school-choice program in order to resolve the tension between its state constitutional requirement of a publicly funded education and the reality that much of Maine is too rural to support a school in every town: As Roberts noted, “of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.”

So, the state established a tuition-assistance program — basically, tuition vouchers — for parents in districts without a school of their own. They could use those vouchers at a secular school, or a religious school — until 1981, when Maine passed a statute barring any “sectarian” school from the program. It did so explicitly in response to the Supreme Court’s “separation of church and state” line of cases that began in the late 1940s and reached a crescendo with 1971’s Lemon v. Kurtzman. The 1981 statute required that students attend “a nonsectarian school in accordance with the First Amendment of the United States Constitution” and “was enacted in response to an opinion by the Maine attorney general taking the position that public funding of private religious schools violated the Establishment Clause of the First Amendment.”

The now-infamous Lemon test struck down a Rhode Island statute that supported teacher salaries in both secular and Catholic private schools on an equal basis — 25 percent of Rhode Island students attended private schools, almost all of them in Catholic schools — even though it was limited to teachers providing only non-religious instruction. Chief Justice Warren Burger’s opinion concluded that the program nonetheless resulted in “excessive entanglement between government and religion.” The Court has been chipping away at the overzealous and non-textual Lemon test and its abuse in restricting equal aid to students in religious schools since 2002, when it held in Zelman v. Simmons-Harris that “direct government aid to religious schools wholly as a result of their own genuine and independent private choice” does not violate the establishment clause.

In Trinity Lutheran Church of Columbia v. Comer (2017), the Court added the free-exercise clause to the mix, holding that Missouri violated the free-exercise clause of the First Amendment by refusing to provide grants for playground resurfacing to a Lutheran church’s preschool and daycare center, solely because it was a religious institution. In Espinoza v. Montana Department of Revenue (2020), it allowed Montanans to use generally available private-education tax credits for religious as well as non-religious schools, striking down the anti-Catholic Blaine Amendments. Today’s decision noticeably failed to cite Lemon –– even the dissents did not mention it. Lemon may not be entirely dead, but after today, it is hard to see what vitality it retains in the school voucher context.

Nonetheless, the myth of a “wall of separation” that requires discrimination against religious schooling persists, even among people who ought to know better. Justice Sonia Sotomayor complained in her dissent today:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build. . . . In 2017, I feared that the Court was leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment. Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

Well, yes: Both “separation of church and state” and “wall of separation” are, in fact, slogans rather than constitutional commitments. Allowing students to take state aid to a religious school on the same terms as a secular school does not establish a church, any more than allowing them to use Pell Grants at a religious college or, for that matter, allowing people to buy Bibles with their Social Security checks, establishes a state church. As Roberts summarized: “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.”

Of course, the Founders expected church and state to be more separate, but then, they expected a lot of things to be more separate from the state; we have a much bigger government today. Then again, most public schools in the early republic were sectarian. Roberts emphasized that today’s decision does not require states to fund religious school choice — but if it funds secular school choice, it may not exclude students who choose religious schools. Religious believers may not be required to choose between the exercise of their faith and being treated the same as people who exercise no faith. One hopes that, at long last, the education bureaucracy will get that message.

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Source: Supreme Court & Carson v. Makin: Win for Religion | National Review