Peter Greene has written several columns about the U.S. Supreme Court’s step-by-step effort to tear down the wall of separation between church and state. With its June 21: 2022, decision called Carson v. Makin, the High Court ordered the state of Maine to pay the tuition for students at two religious schools. Under Maine law, districts that do not have a public high school must pay tuition for high school students to attend a private non-religious school. A majority of the justices ruled that Maine violated the students’ free exercise of religion rights by denying them the same benefits as those who go to private schools at the public’s expense.
The decision was 6-3. The majority were all appointed by Republican presidents (Roberts, Alito, Thomas, Gorsuch, Kavanaugh, and Barrett). The minority were appointed by Democratic presidents (Breyer, Sotomayor, Kagan). All six of the Justices in the majority were born Catholic; Gorsuch graduated from Georgetown Preparatory Academy, a Jesuit school (Brett Kavanaugh was two years behind him.) Gorsuch and his family now attend an Episcopal church. The minority bloc consists of two Jews and a Catholic (Sotomayer).
Before the case was decided, Peter Greene expressed concern that the two religious schools openly discriminated against student, families, and staff by refusing to accept into the school’s community.
He wrote six months before the decision was released:
Bangor Christian Schools require adherence to a code of conduct; trans or gay students will be expelled, even if celibate. Their religious indoctrination is inseparable from their academic instruction. A fifth grade social studies objective is to “recognize God as Creator of the world,” while a ninth grade objective is to “refute the teachings of the Islamic religion with the truth of God’s word.” Teachers at BCS must certify that they are born again Christians.
Temple Academy is an extension of the Centerpoint Community Church. TA is unlikely to admit students that do not come from a Christian family; that family must sign a Family Covenant saying they agree with TA’s views on abortion, marriage, and homosexuality. Again, only born again Christians may be hired to teach; teachers also sign an employment agreement acknowledging that the Bible says that God considers “homosexuals and other deviants as perverted.”
The issue, he wrote, was not about freedom of religion or free exercise of religion, but about whether taxpayers should pay for schools that discriminated against defined groups of people.
For several years, fans of school choice have been pushing the argument that a religious school is not free to exercise its religious faith if it does not get to share in taxpayer dollars. The wall between church and state has thus been characterized as discrimination against religion. Turns out you can’t be really free without taxpayer funding.
A few weeks ago, Peter returned to the subject and reviewed some of the Justices’ arguments. Quite simply, he wrote, the Supreme Court was ordering the state of Maine to pay tuition at schools that engage in discrimination.
Justice Breyer asked:
What happens once “may” becomes “must”? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?
Justice Sotomayor said:
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.
But the case goes on, because Maine passed a law stating that it would not fund schools that discriminate. The Bangor Christian Academy sued the state and asserted its right to discriminate.
Bangor Christian Schools is now suing the state of Maine, asking first for an injunction against the Maine Human Rights Act (MHRA) restriction that bars them from receiving state money as long as they continue to discriminate. Their assertion is that the “poison pill” of human rights law in Maine violates their religious liberty, that they cannot exercise that liberty unless they can both receive state funds and continue to discriminate against students and prospective faculty that don’t meet their religious requirements.
The state of Maine insists that it will not fund schools that discriminate:
Attorney General Aaron Frey said that “all Mainers deserve to be treated with dignity and respect, whether it be in their workplace, their housing, or in their classrooms. The Maine Human Rights Act is in place to protect Mainers from discrimination and the Office of the Attorney General is steadfast in upholding the law. If abiding by this state law is unacceptable to the plaintiffs, they are free to forego taxpayer funding.”
Peter continued his dissection of the decision in a third post, wherein he debated the libertarian Neil McCluskey of the CATO Institute. McCluskey asserts that secular schools are hostile to religion, and the only way to secure true freedom of religion is to fund all choices, all religions.
Peter writes:
First, I don’t accept the premise that “secular” requires hostility to religion. If you play in the percussion section, you aren’t hostile to melody–it’s just not your job to handle it. A secular education system doesn’t try to fulfill any religious functions, for a variety of reasons we’ll get into.
There’s another issue in that first point, which is the newly revived idea among some folks that they cannot fully and freely practice their religion unless they are free to discriminate against people of whom they disapprove, like the Mom who objects to having her child taught empathy because she believes there are some people her child should not feel empathy for. This is a whole other post, but my short answer is this–there is no placating these people as long as circumstances find them in a pluralistic society.
But where I really disagree with McCluskey is in his central notion that by allowing everyone to retreat to their own personal bubbles, we can end all the various battles over culture and religion…
The whole choice thesis is that by not using taxpayer funds to support private religious choice, the government is discriminating against religious folks (with the newest legal test of this theory coming to a courtroom in Maine). Again, this reasoning goes, I am not fully free to exercise my religion if the taxpayers aren’t subsidizing my choice.
I should get to practice in my little bubble, and the taxpayers should help pay for the bubble.
That’s how this vision of choice leads to religious discrimination on an unprecedented scale and takes us all the way back to the question of separate but equal.
Peter demonstrates a variety of scenarios that show how thorny this issue is.
A variety of secular schools realize that if they re-configure themselves as religious schools, the “free exercise” clause is a ticket to the Land of Do As You Please and they can start discriminating against students and faculty in pretty much any way they wish as long as they claim that it’s an essential part of their religion. This will force taxpayers to fund all sorts of things that they (and not just liberal especially) object to, from aryan supremacists to gender theory schools. One worst case scenario will be a government agency given the task of figuring out which religious schools are “real” religious schools and which are just playing games. The other worst case scenario will be states figuring out how to regulate these schools so that they can’t discriminate in ways that would be illegal for anyone else. Or maybe we’ll just have a government office of educational equality that makes sure that every religion gets an equal shake in the school funding/free exercise department. No way that could end badly. None of these “solutions” will be popular.
Now that we’re establishing that I can’t have freedom to exercise my religion without enough of a taxpayer subsidy, who is going to decide how much subsidy is enough?…
I can imagine taxpayers rejecting bond unissued because they don’t to subsidize all those religious schools.
Peter concludes:
I can imagine plenty of awful scenarios. What I can’t imagine is how vouchers + religious schools results in a free and adequate education for every child or greater harmony and cohesions for our pluralistic nation. Yes, yes, I understand we haven’t exactly mastered either of those things currently, but I don’t see how vouchers + religious schools does anything except make matters worse.
Diane Ravitch's blog 
Fascism is Spreading Under the Guise of Patriotic Education by Giroux:
https://truthout.org/articles/us-fascism-is-spreading-under-the-guise-of-patriotic-education/
One of the characteristics of fascism is the marginalization of women. The Catholic church has a head start. Also, 30% of their schools are single sex.
So TRUE, Linda.
If Peter Greene failed to identify Neil McCluskey as conservative Catholic, I’ll add it as a note. McCluskey is described in a bio at Biola University as a Catholic educator.
There is a better understanding about the religious sects in Maine if we look at the statistics. Reportedly, forty-two percent of all private schools in Maine are religious. The breakdown is, 30% Christian, 25% Baptist and 23% Catholic. Five years ago, the Bishop of the Portland diocese withdrew from the Maine Council of Churches over LGBT equality (New Ways Ministry). The 7 protestant members of the Council wanted to become public advocates for LGBT. The New Ways Ministry article continues, “overall, nationally, few Catholic dioceses participate in such coalitions.”
Given the Council of Churches stance, it’s logical to assume some of the Christian schools welcome LGBT.
We can deduce that those Catholic schools associated with the Portland diocese may not. Portland is the largest city in Maine. The next largest city is about half of its size.
The Human Rights campaign reported 10 years ago that the Catholic Church spent $2,000,000 in massive spending doubling down against LGBT equality.
Is reflection overdue? Why does the liberal public (and, members of the Roman Catholic Church) accept as tolerable the Catholic church’s overt discrimination against women and, take great umbrage at discrimination against LGBT?
The presumed wall between church and state has been dismantled brick by brick by right learning courts. Discrimination and segregation against groups that should be protected by federal law have become more accepted in states that have been ruling in favor of “religious liberty.” As a result discrimination and segregation are becoming more accepted under the guise of “religious freedom.”
Public education defenders should be aware that in the central states (and, Florida) state Catholic Conferences have been self-admitted leaders in the initiation and passage of school choice legislation. They should also review the bio of the Executive Director of the Colorado Catholic Conference whose background includes employment with the Koch network.
Georgetown’s executive director for the Constitution (in its law school) who was hired in 2022 and cleared for reinstatement after his Ketanji Brown comments was from the Koch network. Catholic University also in D.C. has ties to Charles Koch..
The twin agendas of the Extremist Right-wing Supermajority on the Court:
Dismantle the separation of church and state and promote religious indoctrination of the young.
Trash unenumerated rights and thus the power of the federal government.
If I’ve only learned one thing since I’ve become a fanboy of Diane in 2010, it’s that the restoration of segregation and discrimination has been going on since Reconstruction and got a boost with Brown. I would say the actual threat right now is permanent entrenchment. We are on the defensive and have been for quite some time.
For those trying to sell the story that politicking by conservative Christian schools is substantial and the politicking by the right wing Catholic church is inconsequential or doesn’t exist, there are a few major flaws in the narrative. First, to my knowledge, there’s no equivalently juiced political apparatus to Catholic Education Partners and state Catholic Conferences. Secondly, Leonard Leo and the Jones Day law firm have no equivalents. Thirdly, the Catholic church’s politicking is often sourced from a central pot of church money (USCCB spending). Conservative protestant churches are at best, a number of smaller confederations and often without links to one another.
Fourth, there is no equivalent to liberal protestant churches in the Catholic church behemoth. As illustration, there’s no Catholic church-condoned Pastors for Texas Children nor National Council of Churches, organizations that could buck the Catholic hierarchy’s campaign for tax-funded Catholic schools and denial of rights for women and LGBT. A few, outlier liberal Catholic groups exist. It appears they have no power in changing the Church’s course. Fifth, conservative protestant churches don’t have a political powerhouse like the Koch network aligned with them. And, sixth, the universities of conservative protestant churches don’t have the political clout of a Georgetown nor Republican connected, public square agendas like that of Clarence Thomas-adjacent Hillsdale.