Restoration of the founders’ vision of religion
The judgment of the court in Carson vs Makin helps restore the meaning of the First Amendment.
While the nation waits for the Supreme Court to make its opinion known Dobbs v. Jackson Women’s Healthexpected to tip over Roe v. calf, it’s easy to lose track of the many other important decisions that were released during this term. in the Carson vs Makin, released Tuesday, the court continued in a 6-3 decision to reverse 75 years of anti-religious rulings. Those who appreciate the legitimate role of religion in our nation’s public life and the need to uphold the original meaning of the Constitution should not overlook the importance of this decision.
The Maine state legislature enacted a tuition support system for families living in non-high school school districts. Under this program, families could choose a public or private secondary school to send their child to, and the school district would make payments to the school to cover tuition. The law’s controversial provision stipulated that beginning in 1981, the school to which parents send their children need not be denominational in order to receive the funds. The Maine Department of Education defined a sectarian school as any school “affiliated with a particular creed or belief system which, in addition to teaching academic subjects, promotes the creed or belief system with which it is affiliated and/or presents the material taught therein the lens of that belief.”
So any accredited public school, secular private school, trade school, etc. would be eligible to receive the government payment, but not a Catholic, Protestant, Jewish, or Islamic school. One wonders why holding the Christian creed would qualify a school as “sectarian,” but holding a bright creed and teaching critical race theory and gender studies would not. It seems arbitrary to view traditional religions as “a particular belief or belief system.”[s]’, while modern philosophies such as critical race and gender theory and general liberalism are excluded from the designation. But that is a reflection for another essay.
The question the Supreme Court ruled was whether passing a restriction against denominational schools receiving funds violated the Free Exercise Clause of the First Amendment. The court ruled that was the case. Referring to previous precedents, the Court pointed out that the freedom-to-practice clause (quotations omitted) “protects against ‘indirect coercion or penalties for the free exercise of religion, not just outright prohibitions’… In particular, we have repeatedly held that a State violates the freedom of exercise clause when it excludes religious observers from otherwise available public services.”
This is a welcome and crucial reminder to the secularists who insist on a “wall of separation” between church and state. The right to free exercise of religion does not only mean that Christians can worship in peace at home and in church on Sundays. Freedom to practice religion means that religious people and institutions may not be forced, punished or refused public benefits because of their religious belief. Religious people, communities and schools have a venerable tradition of not only being accepted in public life, but also being encouraged and supported.
Section II(B) of the Court’s Opinion contains an intriguing discussion of the constituent clause. Remember the religious part of the First amendment consists of two parts: Congress may not make any law 1) respecting any institution of the religion or 2) prohibiting the free exercise of it. Judge Sotomayor’s objection Carson vs Makin notes that a state may choose not to fund certain religious activities even if the founding clause does not specifically prohibit funding. But the majority counters that this is not so easy because the founding clause and the freedom of movement clause are in tension: unless the government is prevented from supporting a religious activity under the founding clause, any attempt to separate church and state, “stricter” than the settlement clause requires, will probably interfere with the right to free exercise of religion. In this case, Maine did not simply decide not to fund a religious activity. The state decided to fund a certain type of activity (education) but to single out and exclude sectarian religious schools. The court therefore ruled that the “nonsectarian” requirement in Maine law was not required by the founding clause and that the law violated the freedom of movement clause.
The dispute between the parties acc Carson vs Makin raises a question that urgently needs to be discussed in public: What does the settlement clause mean? Conservatives need to understand the original meaning and limitations of “a religious body” lest we back down when we’re told there must be one a partition between church and state that prevents any public recognition or favoritism of religious institutions. Actually, there shouldn’t be such a wall. The Constitution doesn’t say anything like that, and that’s just not how states functioned in the early years of the Republic. So if the founding clause doesn’t erect a dividing wall between church and state, what does it do?
That original public meaning the founding clause is modest and limited: it prevents Congress from passing any law respecting the founding of a religion. This means both that Congress is incapable of planting a church nationally and that it cannot interfere in the decisions of individual states to establish a religion (or not).
There are two important insights that are often forgotten in the modern discussion of the founding clause. First, at the time the First Amendment was ratified, the facility clause was uncontroversial because it applied only to Congress and not to the states. States varied greatly in their religious institutions. Some states avoided having an established church; others not. Maryland directly supported the Church of England, while the states of New England favored the Congregational denomination. Massachusetts retained the Congregational Church as the established state church until 1833. The Founders would have been quite taken aback that in 21st-century Maine the state government would claim that giving taxpayer money to cult schools violated the charter clause, although the Founders felt it was fairly consistent to have both a charter clause and established national churches.
Second, we must recognize the vast difference between favoring one denomination at the expense of others and favoring non-religion over religion. These are very different. For the sake of argument, let us accept both the founding clause now applies to the States and Congress, and that the “spirit” of the founding clause is not merely to prevent a state-established church, but to prohibit a state from favoring one denomination over others (the logic of these two points is debatable and problematic, especially the application of the founding clause to the States). Allowing for these two points, there is still no reason why governments cannot subsidize religious education, encourage prayer and religious reading in schools, allow religious symbols in public places, etc. There is nothing in the text or history of the first Amendment or the traditional practice of states that would lead us to believe that it is unconstitutional to have Judeo-Christian prayers, readings, symbols and observances as part of our public institutions. Far from trying to keep religion out of American public life, the founders thought that religion was necessary in our public life. John Adams proclaimed the “[o]Our Constitution was made only for a moral and religious people. It is totally inappropriate for someone else’s government.”
Conservatives must embrace these founding realities of our nation. Yes, America was founded as a land of religious pluralism. There is no nationally established church or creed and people are free to practice religion or not as they see fit. But there is no legitimate tradition that isolates religion from the public square. There is no reason to isolate religious people and institutions and insist that they have no place in American government. Religious Americans should not be quietly asking for exceptions in the hope that the government will benevolently include them in a school grant program. America has a tradition of embracing religion as a good for society that needs to be fostered and encouraged in public life. While respecting differences, religious Americans must insist on our right to exist and openly thrive in our public institutions. The judgment of the court in Carson vs Makin is a solid step in tearing down the wall that separates religion from public life and restoring the meaning of the First Amendment.
Frank DeVito is an attorney and current associate of the Napa Legal Good Counselor Project. His work has previously been published in the Quinnipiac Law Review and the Penn State Online Law Review. He lives in eastern Pennsylvania with his wife and three young children.