Today in its opinion in Carson v. Makin, the Supreme Court’s conservative supermajority further eroded a key portion of the First Amendment: the Establishment Clause, which forbids the government from using its power to promote a particular religion. In an opinion by Chief Justice John Roberts, the Court held that a Maine law prohibiting the use of taxpayer dollars to fund students’ attendance at private religious schools violates the Free Exercise Clause—the other, equally important half of the First Amendment’s Religion Clauses. 

Tuesday’s decision is the most recent in a string of cases that treats restrictions on government funding for church-run organizations as unconstitutional religious discrimination. However, Carson v. Makin goes even further, effectively requiring Maine’s taxpayers to fund schools whose stated mission is, to paraphrase, saving the heathens. 

The First Amendment tries to accomplish two basic goals: preventing the government from establishing an official religion, and preventing it from interfering with anyone’s adherence to their sincerely-held religious beliefs. These objectives are obviously in tension, and policies ostensibly designed to further one can feel like gross violations of the other. For a conservative movement that seeks to make Christianity the state’s preferred religion, if not its official one, Carson v. Makin is the latest move in their efforts to get rid of that pesky Establishment Clause altogether.  

For Maine families who live in areas without a public secondary school, the state provides a deal: financial assistance to allow kids to attend local private schools instead. In 1981, the legislature passed a law clarifying that families cannot use this benefit to send their kids to “sectarian” schools—which Maine’s Department of Education defines as those which teach academic subjects “through the lens of faith,” and where religious instruction forms the core of the curriculum. As a baseline, the law would prevent a student from using this money to attend a private institution which, for example, teaches that evolution is a hoax.

Two sets of parents, David and Amy Carson and Troy and Angela Nelson, argued that this law amounts to unconstitutional discrimination. The school the Carsons want their children to attend, Bangor Christian School, is clearly the type that the legislature had in mind—one where sincerely-held bigotry is central to the school’s curriculum. As Adam Cohen wrote for Balls & Strikes in November, Bangor Christian School teaches students that husbands are leaders of their households, for example, and that “any deviation from the sexual identity that God created will not be accepted.”

Conservatives have long been sympathetic to the claims like those of the Carson and Nelson families. In 2002, the Court held in Zelman v. Simmons-Harris that school vouchers can be used at private religious schools, as long as the person chooses that school of their own free will. Two years ago in Espinoza v. Montana Department of Revenue, the Court decided that a state law barring religious schools from accessing a state scholarship fund unlawfully discriminated against those schools based on their mere “status” as such.

The First Circuit Court of Appeals upheld Maine’s law, reasoning that the tuition assistance program is supposed to replace the public schools the state would otherwise provide, and thus should remain neutral towards religion. The court also noted that Maine did not exclude all religiously-affiliated schools, but only those in which religious indoctrination is central to their educational mission. 

The Court’s conservatives, of course, disagreed. According to Roberts, Maine’s policy is not neutral, and is actually a form of faith-based discrimination. The law, Roberts wrote, “promotes stricter separation of church and state than the Federal Constitution requires.” In other words, Maine apparently had separated church and state too much.

Roberts attempted to address this case’s troubling result by pointing out that a bunch of very-unlikely-to-happen events might, in theory, occur. Because Maine could expand its public school and transportation systems, or operate boarding schools, or otherwise provide for students’ education, Roberts concluded, the Court isn’t forcing the state to fund religious education so much as it is giving effect to the state’s policy choices. In one of the most rural states in the nation, where fewer than half of 260 school districts run their own secondary schools, suggesting that officials create 130 public schools overnight to avoid funding Bangor Christian is like asking a camper who left their poles at home to hurry up and build a tent.

Justice Stephen Breyer dissented, joined by Justice Elena Kagan and in part by Justice Sonia Sotomayor. “State funding of religious activity risks the very social conflict based upon religion that the Religion Clauses were designed to prevent,” he wrote. Part of the logic behind the separation of church and state is attempting to minimize religious discord and the attendant risk of violence. At a moment when some religious groups are claiming that their beliefs require discrimination (or worse) against queer people, the Court’s decision in Carson quietly fuels the vitriol about which Breyer warns.

In a separate dissent, Sotomayor provided some of the righteous indignation lacking in Breyer’s opinion, noting her “growing concern for where this Court will lead us next.” Her opinion also draws a direct link between the justices’ freewheeling Free Exercise Clause jurisprudence and the changes in the Court’s composition that enabled it. “While purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds,” she writes. “What a difference five years makes…Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

Carson functionally resolves the longstanding tension between the Religion Clauses—not coincidentally, in favor of the one championed by the Christian right. This new version of the First Amendment not only sanctions religious institutions promoting homophobic agendas, but also requires that taxpayers subsidize student attendance. It is, as Sotomayor writes, the latest step in the Court’s efforts “to dismantle the wall of separation between church and state that the Framers fought to build.” It will not be the last.

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