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Douglas Andrews / June 22, 2022

A Supreme Win for Religious Liberty

In what we hope will be a stream of proper rulings to close out this year’s term, the High Court ruled in favor of religious freedom and school choice.

We’ve had serious misgivings about the leftward lurch of Chief Justice John Roberts (think: Obamacare, campus free speech, and the High Court’s punt on the disputed 2020 election), but one issue he’s been mostly solid on is religious liberty. Mostly, but not entirely — a May 2020 ruling in favor of COVID restrictions and against churchgoers is a glaring failure.

Yesterday, though, the chief justice was back with the good guys, the First Amendment defenders, as the High Court ruled 6-3 against the state of Maine, ruling that it had infringed upon the Constitution’s guarantee of religious free exercise. At issue in Carson v. Makin was Maine’s exclusion of funds from religious schools in a school-choice program. As National Review reports:

The program requires rural communities without public secondary schools to either sign contracts with nearby public schools or to pay tuition at a private school chosen by parents that is a “nonsectarian school in accordance with the First Amendment of the United States Constitution.”

The case stems from a lawsuit filed by two families in Maine who send or want to send their children to religious schools. The families argued the restriction violated their right to freely exercise their faith.

Chief Justice John Roberts wrote in the majority opinion that while “a state need not subsidize private education” that “once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Summing up, Roberts said, “That is discrimination against religion.” And he’s right.

To no one’s surprise, the Court’s three left-wing justices — Stephen Breyer, Elana Kagan, and Sonia Sotomayor — dissented. “With growing concern for where this Court will lead us next,” began Sotomayor, “I respectfully dissent.”

She continued: “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] 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.”

There they go again, those leftist jurists taking a throwaway line in an obscure letter from Thomas Jefferson to the Danbury Baptists and trying to drop it into the Bill of Rights.

We’re not sure what part of “or prohibiting the free exercise thereof” seems to escape Sotomayor’s grasp, but at least she’s “respectfully” wrong. Justice Breyer, too, weighed in at length with his own smokescreens, emanations, penumbras, and gobbledygook, but to no avail. As is so often said, “freedom of religious expression” doesn’t mean freedom from religious expression.

Maine argued unsuccessfully that both of the schools involved in the case “candidly admit that they discriminate against homosexuals, individuals who are transgender and non-Christians.” We’re not sure what it means by “discriminate,” unless it’s referring to the schools’ commitment to teaching according to biblical precepts. And, again, that’s the essence of religious freedom.

As the editors of The Wall Street Journal sum things up: “As for the Establishment Clause, why not let many flowers bloom? If evangelical parents take Maine’s tuition dollars to evangelical schools, Jewish parents to Jewish schools, Buddhist parents to Buddhist schools, and so forth, it would be hard to see that outcome as a government establishment of religion. Pluralism is the answer, and it might be the future, as many parents are now discovering objections to what their local public schools are teaching.”

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