The Supreme Court Just Fused Church and State — and It Has Even Uglier Plans Ahead
It’s that time of year again, when six conservative lawyers impose a retrograde view of the world on unsuspecting people everywhere. Yup, it’s the end of the year for the Supreme Court. And this year, the rightwing hijacking of the court is going to be more apparent than ever.
Tuesday’s decision in Carson v. Makin really sets the tone for the next two weeks. In this case, two Christian private schools challenged a program in Maine that provided tuition assistance to families in rural school districts that don’t have their own public school. Parents could use the tuition assistance to send their children to private school, but Maine prohibited parents from using the money to attend a religious school. The rationale behind that carve-out was that the First Amendment’s prohibition on establishing a religion, so the state banned its tax dollars from going to religion.
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Sounds straightforward and reasonable enough, but not to this Supreme Court. This court, dominated by conservative Christians, has almost never faced a claim brought by a religious entity that it didn’t agree with. Looking for exceptions from birth control mandates, anti-discrimination law, and COVID protections? If you’re religious, this court has your back! How about forcing state and local governments to give you money, assistance, and support? Again, if you’re religious, you’re in luck once again!
So the ruling wasn’t much of a surprise, but it’s still a shock to the American system of government. The schools that asked for public tax dollar support from Maine have discriminatory admissions and hiring policies against gay and trans people as well as those who are non-Christian. No matter to this court. If Maine is funding allows tuition assistance to go to any private school, it has to allow the funding to go to religious schools as well, even ones with discriminatory policies. Chief Justice Roberts, writing for himself and the other five conservatives on the Court (Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett), explained that “a state need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Framed this way, it sounds quite benign. However, what these Justices are doing is reading one part of the First Amendment to the exclusion of another. The First Amendment protects freedom of religion, but it also guarantees a separation between church and state. This requires a fine balance, but as Justice Breyer notes in dissent, the court is now paying almost exclusive attention to the first part while ignoring the second. Justice Sotomayor puts an even finer point on it in her own dissent, saying that rather than being a constitutional requirement, “the Court leads us to a place [today] where separation of church and state becomes a constitutional violation.” Stated differently, with this court, what conservative Christians want, conservative Christians get. Because apparently that’s what the Constitution requires.
But this is just the beginning of the conservative wrecking ball we’re staring right into over the next 10 days or so. The court has 13 more cases to decide. It typically decides all of its cases by the end of June, though it will have to rush this year to do so. With opinion releases, the court can do whatever it wants, whenever it wants. There are no rules, so it could finish by June 30, or go into July. It’s completely up to them. The only thing we do know for sure at this point is that the next decision day is Thursday of this week.
Among the 13 remaining cases are many that are going to recast American society in the vision of the modern Republican party. Most prominent is the abortion case that is almost certain to overrule Roe v. Wade. In that case, Dobbs v. Jackson Women’s Health Organization, we’ve already seen the draft majority opinion from Justice Alito that obliterates not only Roe but also much of the court’s privacy jurisprudence. Theoretically, that could change, and the court might moderate in its ultimate decision, but most people expect the final opinion to do exactly what the draft opinion did. The result will be a country where roughly half the states ban abortion while the other states allow it with varying forms of regulation. This decision, being one of the most significant in the court’s history, is likely to come on the last day of the term (whenever that is).
In super-close second place for the most watched decision of the court’s term is the New York gun case, New York State Rifle & Pistol Association v. Bruen. In that case, the court is reviewing a New York law that prohibits most people from obtaining a concealed-carry permit for self-defense. After oral argument, there was no doubt that the court was going to require New York to allow people in the state to have concealed-carry permits. In fact, the tone of the oral argument was so extreme that it seemed some Justices, concerned about dangerous subways and street corners, would even vote to require every New Yorker to carry a gun at all times. But, after Uvalde, there’s some speculation that the court will moderate its decision as a way of reading the moment. More likely, though, is that on the last or second-last day of the term we get a landmark decision from this court blessing and extending this country’s obsession with guns.
But wait, there’s more! The Justices will also decide a major First Amendment school prayer case regarding a public school football coach who was not re-hired after he prayed with students following games. It is also considering whether the Biden administration properly rescinded President Trump’s “remain in Mexico” policy, which forced immigrants to go back to Mexico while their immigrations proceedings happened. And they are considering whether President Biden’s Environmental Protection Agency has the authority to regulate power plant carbon emissions. If you’ve made it this far in the article, you probably know what to expect with each of these cases — the coach will win, the remain in Mexico policy will be reinstated, and the EPA will be blocked.
After all, those outcomes are consistent with the basic Republican party platform. Which means over the course of the next two weeks, the smart money is on the Supreme Court seamlessly following along.
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