To no one’s surprise, the ultra-conservative Supreme Court ruled in favor of funding religious schools in states that fund other private schools. Whereas the Supreme Court has long issued rulings forbidding any state support for religious schools, the current Supreme Court has signaled its willingness to rule in favor of equal treatment of religious schools. Brick by brick, this Supreme Court is dismantling the “wall of separation” (Thomas Jefferson’s phrase) between church and state.

David Savage of the Los Angeles Times reports:


The Supreme Court on Tuesday extended its support for religious schools, ruling that parents who send their children to such institutions have a right to tuition aid if the state provides it to other similar private schools. 

The 6-3 decision in the Carson vs. Makin case from Maine could open the door to including religious schools among the charter schools that are privately run but publicly financed. 

In the past, the high court had said that giving public funds to church schools violated the 1st Amendment’s ban on an “establishment of religion.” 

But in the past five years, the court’s conservative majority has flipped the equation and ruled it is unconstitutional discrimination to deny public funds to church schools simply because they are religious.

Maine has an unusual subsidy program because many of its small towns do not have a high school. In such cases, students may enroll in a private school or in another public high school, and the state pays their tuition.

Since 1980, however, the state has not extended these subsidies to students in church schools, apparently fearing it would be unconstitutional to do so.

The court majority said that was a mistake. 

Among the six conservative justices in the majority, all of them attended Catholic schools except for Justice Samuel A. Alito Jr., who went to public elementary and secondary schools in New Jersey. 

The conservative justices in recent years have cast aside the principle of church-state separation and argued it grew from an anti-Catholic bias in the late 19th and early 20th centuries.

“It was an open secret that ‘sectarian’ was code for ‘Catholic,’” Chief Justice John G. Roberts Jr. wrote in 2020, describing the common state laws that prohibit sending tax money to schools affiliated with a church. These restrictions were “born of bigotry” and “arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,” he said in Espinoza vs. Montana

The 1st Amendment forbids laws “respecting an establishment of religion,” which had been seen as barring the government from subsidizing religion. But Justices Clarence Thomas and Neil M. Gorsuch have disagreed.

“The modern view which presumes that states must remain … virtually silent on matters of religion is fundamentally incorrect,” Thomas wrote in an earlier school case. “Properly understood, the Establishment Clause does not prohibit states from favoring religion.”

Notre Dame law professor Nicole Garnett, a former Thomas clerk, predicted last year there will be a move “in the near future to permit religious charter schools,” either through the courts or the states.

If these “charter school programs are properly considered programs of private school choice,” they can take advantage of the court’s ruling forbidding the exclusion of religious schools, she said.

My comment as an historian who has studied church-state issues:

The Court is right that there was a strong anti-Catholic bias in American society throughout the nineteenth century. The so-called Blaine amendments found in many state constitutions were animated in large part by a desire to block public funding of Catholic schools. As I showed in my book “The Great School Wars,” a history of the New York City schools, the Catholic Church eagerly sought public funding in the 1840s.

But the ban on funding religious schools that has been in place nationally for more than a century applied to all religious schools, not just to Catholic schools. Schools run by Protestants, Catholics, Jews, Muslims, and other religious faiths were ineligible for public funding. This view was reinforced repeatedly by the Supreme Court in numerous rulings. The common understanding, upheld by the Court, was that public funds should not be used to indoctrinate public funds into the belief system of any religious faith.

Public schools exist to promote public purposes: literacy and judgment needed to vote, to serve on juries, to participate in civic life, to sustain a democratic polity. Religious schools exist to teach and perpetuate–and yes, to indoctrinate–the faith of adherents. Religious believers do not want to support the schools of other faiths. But under this ruling, all religious faiths will be entitled to public funding in any state that funds any private schools.

Maine should end its policy of “tuitioning” and limit public funds to public schools. Other states that subsidize any private schools should stop doing so. The path on which SCOTUS has embarked will end in publicly funding schools for every religion, of which there are scores. It threatens the principle of the common school, supported by the public and open to all children.

The next step, as the article suggests, will be religious charter schools, scooping up public funds with no accountability, no oversight, and no adherence to anti-discrimination laws. Is it not unjust to expect the public to pay for schools where their own children are ineligible to attend because of their own religion?

Betsy DeVos and Charles Koch must be celebrating right now.