SCOTUS has to decide another "religious liberty" case

Oral arguments are scheduled to be held at SCOTUS the week of 13 December 2021 in an appeal of Carson v. Makin with a decision probably by June 2022.

…a potentially landmark case challenging a Maine law that bans families from an otherwise generally available student-aid program if they choose to send their children to schools that teach religion.

Link to the oral arguments audio:

Live Oral Argument Audio.

The Institute for Justice is representing the parents (plaintiffs) who are arguing that the State of Maine is unfairly restricting their religious freedom.

I am a big fan of IJ, who have been strong (and effective) advocates of many citizen rights. But this case isn’t as clear-cut to me, and I think it hinges on the following:

Can a school, whose stated purpose is to promote a particular religion and view, operate educational facilities to teach non-religious subjects (like mathematics) without injecting religious aspects into it?

If they can, I see nothing wrong with allowing taxpayer funds, i.e., state-supplied money, used to educate students if nothing else is available.

If they can’t, I see everything wrong with the same idea.

I think this case might be a gray area. While it is difficult for me to imagine how a church institution could make mathematics into a religious subject, I can certainly imagine how they could do it with subjects like science/biology (universe origins, intelligent design) or history (how influential was the church or religious leaders over time).

Personally, I am unable to assume that a church-supported school can keep their hands off of any subject, since religion is their obvious reason for existence. But with our current right-leaning, Christian-influenced court, I think it is likely they will rule that the parents are right and the state is wrong.

If so, it just opens another argument. Is there any limit to what can be considered religious freedom? Baking a cake and opposing same-sex parents is now considered religious freedom. Where do we draw the line? Most religious positions look like superstitious medieval batshitery to me, but many receive legal protection anyway under the “freedom” banner without any serious examination as to veracity.

What do you think?

I’m about as extreme as they come on separation of church and state, but I still think the family has the right of it, here. Assuming the school has whatever equivalent of accredition exists in Maine, they’re still teaching English, math, history, etc., and an aid program that covers schools teaching those subjects applies. Denying aid to schools because they also teach religion classes is the government singling out religion.

Ironically, it was one Antonin Scalia who noted the absurdity of claiming a religious basis for all manner of conduct:
“To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Or, we could go the Originalist route:

  1. The word education does not appear in the constitution.
  2. There were little to no public schools when the constitution was written
  3. Ergo, this is for the state to decide, and the Supreme Court has no say in the matter.

So you believe that religion can be 100% eliminated from the classroom in a religious school? How can we be sure?

I wonder what the reaction would be like if it were a Muslim focused school. Probably not a lot of those in Maine, but I’m quite sure the reaction would not be the same. Fox News would be having hourly specials about the dangers of Sharia law!

What exactly is the distinction between this (home)school and any other religious school? Presumably an overtly christian school would or would not inject religion into otherwise secular courses in the same way. There could be crucifixes on the walls, there could be daily prayers, they could be religious education classes, immersing all the education into a religious setting. A believer’s house could surround classes with religion similarly. I don’t understand why just setting the classroom inside the home rather than in an outside building makes a difference. Certainly there is no difference regarding the standards of the secular classes. Is there anything other than funding at issue?

Giving money to support religion classes just because some of the money goes to non-religion classes is the government supporting religion.

Oral arguments in the case were heard 12/8/21.

I am very much an advocate of separating church and state. And still, I am on this fence about this situation, Although I do believe a religious school can teach certain subjects ( such as math ) without injecting religion, I do not believe that can teach all subjects that way, at least not without negating their identity as a religious school. Ordinarily, I would say, “Pick one- free education or religious education” .What complicates things for me in this case that there are no public schools for the families to send their children to - they will be sending their children to private schools either way, the only difference is whether the school district pays for a non-religious school or the parents pay for a religious one. It’s not clear at all to me what standards other than educational standards Maine uses to determine whether a school is approved - would it approve a school that was run by white supremacists so long as the white supremacism wasn’t religiously based? It’s also unclear to me why the district(s) involved didn’t contract with a particular private school as other districts do - this issue only comes up because parents are permitted to choose a school.

And there was a particular part of the argument that disturbed me :

JUSTICE ALITO: Well, suppose that a
– a school is affiliated with a religious group
and they say, we do infuse our religious beliefs
into all aspects of the community, but our
salient – our salient religious beliefs are
that all people are created equal and that
nobody should be treated – should be subjected
to any form of invidious discrimination and that everybody is worthy of respect and should be
treated with dignity and that everybody has an
obligation to make contributions to the
community and engage in charitable work, those
are our religious beliefs and we don’t – we
don’t really have any dogma, but these are
principles that we think our students should
keep in mind, consistent with the religious
outlook of our community.
Would that school be disqualified?
MR. TAUB: So, I mean, that would be
very close to a public school. Public schools
often have a set of values that they want to
instill: public service, be kind to others, be generous.
I think what – what – what the
defining feature or what – or – or what would
make the difference is – is whether children
are being taught that your religion demands that
you do these things, that – that your religion
demands –

There’s some back and forth about those beliefs being similar to Unitarian Universalist beliefs and Alito comments that that community can have a school that inculcates students with their beliefs and that’s okay because those are okay beliefs and then the lawyer has to first try to get out of it by saying this case was about two schools and if other schools have different challenges they can be taken up then. Eventually he says that Unitarianism is a religion and a school that promotes Unitarianism beliefs would not be eligible. Which is disturbing because at that point, what the lawyer is saying is that what matters is the basis for the beliefs - if the values being promoted are based on religion the school isn’t eligible even though the same values being promoted by a secular school wouldn’t make the school ineligible.

Many of those school and taxpayer-money restrictions come from various laws collectively known as “Blaine Amendments,” which were motivated by strong anti-Catholic bias in the late 1800s.

If those laws were proposed today, many liberals would label them as “hate speech.” And yet those same liberals want to keep those restrictions in place.

Doreen, what I hear you saying is that some religious schools are more religious than others, while some are barely religious at all. I’m sure that is the case.

This just shifts the burden of proof to someone who must make the determination as to how much religion, and if that much is too much.

Which is why I take the attitude that if it walks like a duck…so if it is run by a church, it should be treated as religious. I hardly think that is violating anyone’s religious freedom, but if someone’s semi-religious school is being supported by tax dollars, that certainly does.

I don’t know the solution to the Maine problem, except to suggest that if the public wants to truly separate church and state, they should seriously consider creating new public schools. In the 19th century, in many rural areas, there were small, one-room schoolhouses, and I suspect many provided good education. A school doesn’t have to be an expensive, large building with a large enrollment to be good.

In my own, modern, neighborhood, our local school system was faced with a declining enrollment a short time ago and worried that if the trend continued, we couldn’t afford to have a community school, but would have to consolidate with another. This would have made our local district much less local, and increased transportation time and costs. To avoid this outcome, the teachers and parents got together and put through a wildly popular referendum to replace the existing, 100-year old building with modern facilities in spite of the limited enrollment. It cost the taxpayers dearly, but they approved it, and we now have an impressive education complex that will serve for many years. So it can be done.

I must have been reading an old news article. In that case, the link I gave is to a recording of the arguments, right?

Or this:

https://www.supremecourt.gov/oral_arguments/audio/2021/20-1088

True, but is that the line? Isn’t the line when you favor one religion over another (or over non-religion)? I’m pretty sure the stimulus checks were available to religious companies if they met the other requirements. The important part was that the same thing had to be available regardless of religion (or lack thereof).

I could definitely see an argument that, as long as the school meets certain requirements for teaching certain subjects at a certain level, whatever else it teaches is fine. They’d argue the money must pay only for the essential services, but there’d be nothing against them offering the others for free. And that receiving state money would not make them state actors.

That last part is what I would expect this to hinge on, because, as I understand it, that’s why public schools can’t have religious instruction by the staff, even if the parents and children opt in.

I would say that arguing that teachers who are paid to teach math are donating their time to teach religion at the same school is a bit disingenuous.

Doesn’t Alito’s argument boil down to saying that some religious beliefs - meaning Christianity - are more acceptable than others, especially if - like Christianity - it’s the majority religion in the community?

  1. By the time we get around to finding out if the rules are being applied to all religions equally(and I have serious doubts that they would be) it would probably be too late to overturn them.
  2. if the states are allowed to mandate that religion be taught, even if all religions are given equal opportunity(and again, I have my doubts) what of the rights of the non religious? Will there be schools set aside for them?

With a nod to Doreen’s Alito quote, I think this illustrates the difficulty of separating churches from the secular community. Just because a church espouses kindness to man doesn’t make them non-religious, and a public school that promotes the same values doesn’t make them religious. There are values that almost anyone can support regardless of religion or lack of it. Even the Freedom From Religion Foundation might agree. So we can’t reliably use what they teach in many cases to define religion.

So I say, follow the money. Who is supporting the school? Is any funding coming from a church? It’s doubtful that a church would support a school that didn’t hold its own beliefs sacred (sorry). And if a group of citizens wanted to start a school for only sectarian values, why invoke support from a church and run the risk of religious “contamination” (the wrong faith, for example)?

I read the transcript (this part starts on page 63). I may not have been clear or detailed enough - but Alito’s comment was essentially a statement of what he saw as Maine’s position.

So that would be okay. That religious
community is okay. They can have a school that
inculcates students with their beliefs because
those are okay religious beliefs, but other
religious beliefs, no. Isn’t that – is that
what Maine is doing?

I would have a problem with a religious person defining what acceptable religious beliefs are. Since many religious beliefs are based on faith or tradition, this is not a reliable path to knowledge. Is that what we want to teach our kids?