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High court poised to further open doorf or taxpayer funding of religious schools

Los Angeles Times
WASHINGTON — After imposing a strict church-state separation for decades, the Supreme Court appears poised to allow — and in some cases even require — more government funding of church-run schools.

Legal experts say that could open the door to church-sponsored charter schools operating with public funds in many cities.
The court's shift to the right on religion and schools may not be as sharp and dramatic as on abortion and guns, but its impact could prove to be just as far-reaching.

Previously the high court held the Constitution called for a clear separation of church and state, which had long been interpreted to mean that public funds could not flow to religious schools.

But in recent years, the court's conservatives have flipped the equation and argued this exclusion amounts to discrimination against religion.

On Wednesday, the court will hear a new test of church-state separation in a case from Maine, which has no public high schools in some rural communities.

The state pays tuition to send those students to private high schools, but only if they are "nonsectarian" schools. The state adopted this rule 40 years ago believing it was required as a matter of church-state separation.

Now this seemingly small case is at the center of a large dispute over when religious schools are entitled to public funding. And it arrives at a time when the court's conservative majority has been strengthened.

Conservative justices in recent years have been insisting that the tradition of church-state separation should be cast aside because 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 last year 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.

His June 2020 opinion overruled Montana's state high court and held that parents who sent their children to a Christian school were entitled to a state scholarship on the same basis as those who went to other private schools. The Constitution "condemns discrimination against religious schools and the families whose children attend them," he wrote.

Two other justices said they would go much further and rule that states were free to promote religion.

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 disagreed.

"The modern view which presumes that states must remain ... virtually silent on matters of religion is fundamentally incorrect," Thomas wrote. "Properly understood, the Establishment Clause does not prohibit states from favoring religion."

The Maine dispute has drawn national attention. Lawyers for a religious-rights group in Texas and the school-choice movement in Virginia are representing David and Amy Carson, who sent their daughter to the Bangor Christian School, but were denied state tuition money.

"Government discriminating against parents because of their religious choices for their children is not only unconstitutional, it's wrong," said Kelly Shackelford, president of First Liberty Institute in Plano, Texas. "We are hopeful the Supreme Court will put an end to these violations, not only for the sake of the Carsons ... but for the sake of all parents in America.[/h]"

Maine Attorney General Aaron Frey counters that the state and its taxpayers are paying for a "public education" for all children and do not want to "subsidize religious exercise" for some.

He pointed out the Bangor Christian School excludes LGBTQ students and teachers. And its curriculum guide promises to teach children to "recognize God as the Creator of the world" and to "refute the teaching of the Islamic religion."

Four liberals dissented from last year's ruling in the Montana case, including Justice Ruth Bader Ginsburg. She died three months later, and now with Justice Amy Coney Barrett in her place, the court's conservatives may be poised to go further.

A crucial question is what are the limits of this nondiscrimination rule. Does it apply only to special state scholarships or voucher programs, or could it apply broadly, including to charter schools that can be privately owned but publicly funded?

Experts in education law say the next battleground will be charter schools, which have been growing in California and in many parts of the nation as privately-run, taxpayer-funded alternatives to traditional public schools.

Notre Dame law professor Nicole Garnett, a former Thomas clerk, predicts 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 a high court ruling forbidding the exclusion of religious schools, she said.

But Francisco M. Negron, chief counsel for the National School Boards Association, urged the court to move with the caution.

"This is a case about the historic right of the states to use public dollars for a public purpose," he said. Another ruling requiring public funds for religious schools could "put us on a slippery slope that ends with the funding of religious education with public dollars," he said.

Some legal experts foresee the more conservative high court deciding that parents have a right to send their children to religious schools at public expense.

"The really big question that Carson tees up is whether by funding public schools, the state incurs a duty to fund religious schools as well," said Aaron Saiger, a law professor at Fordham in New York. This could trigger "a cataclysmic change in the place of public education in American society and government. But if one extends the kinds of arguments that have been winning in the Supreme Court, this may be the future."

What's all this codswalloping about being in the Constitution, I don't see it their. I did read something about separation of religion for only one is a big no-no, the government can't do it, under the first amendment rights.

The first Amendment text reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

What is so hard to understand about this in a religious context? We have so many ridiculous interpretations of this. Nowhere does it say our government must be Atheistic. Nowhere does it say God cannot taken into account by our government. And so much more.

I don't think so Frank...........$$$$ these are Jews were talking about.

That would be Socialism...

Those who make ridiculous interpretations have an agenda counter to the historical context of the Amendment.
To the authors "establishment of religion" meant creating an official church of the state, funded by the government. Nobody wanted or would stand for the Anglican Church or any other church established and funded as an official state church of the republic by the general government.
That's all of what "Separation of Church and State" meant to the founders, nothing more.

You get an exemption if your church sells pillows and bobble-heads in the likeness of your leader.

Most of these wacky churches forget the bobble-head requirement.

people say lots of things today that you misinterpret. That's hardly a unique characteristic, you just don't allow for the possibility though.

I find it a bit dubious that you are the only living American able to understand purposely vague writings of a couple of centuries ago.

Wicked smahter than we give them credit for being, they understood that the world had changed from before they were born and would continue to do so after they were gone...though they did foresee this discount cigar forum and assumed it would settle all differences.

Also, don't forget... the Spaghetti monster needs to get fat too... ol Noodles needs some of that sauce.

Remember what happens when the "Church" starts trying to instill it's will... "Devout Atheist's" start putting Satan statues up...

So yes... we'll need the good ol grade school of the fallen one... Lucifer Elementary School... let's be real, they're all little demons anyway.

BLASPHEMY!

School choice.

Money follows the kid. Kid/parents choose the school they wish to attend. Government funding went to the child/parents... they exercised their right to choose a religious school.

Problem solved.

This poses a problem with making sure all the money goes to teacher unions.

And what if I don't want my tax dollars used to teach kids a religion?

Tax dollars should be to teach kids facts and skills.

What about math, science, English, history et al? I'm good with don't fund religious studies, not so good with don't fund the rest.

I do see that in this country, more and more, we have people that want a religious state with an autocratic leader that “is the only one who can fix things”.

People here carp about other nations that legislate with sharia law, but insist Christian law is what we should be about. They tell me this is a “Christian Nation” and other crap.

As an agnostic, all I can say is may God help us!

Can I exercise my right to choose how my individual share of where military budget gets spent so my kids/family will be protected the particular way I want them to be?

No you can’t because that would stupid.

we've come full circle to the proposition described in the article quoted in the OP...

But if we did that for everyone, then everyone would have their own protection or form groups for protection so they could be protected the exact way they want to. That way, we could each decide how our own tax dollars are spent on arms in a self-serving capatilistic way (not bashing capitalism), without concern for the common good of the nation (although some will deny there is such thing) and all things being equal- the free will "market" will bring sufficient, minimum protection for all!

And equating the military and schooling is just plain stupid.

There's the ruling Brewha. It's stupid.

For the sake of argument by analogy and making my point, they are one in the same as far as they both provide for the public good in a way that privatization won't or doesn't seem to work.

Of course, you don't have an aversion to non-public schools as long as parents who choose that route are still punished by paying coercively into your blessed non-contractual "common public fund".
The only reason a vast majority of people send their kids to public school is they are forced to pay taxes for them and can't afford to pay on top of that burden for the education of their choice.

No, MACS is right, they are not the same. Education was wisely left out of the constitution. it is not a constitutional function of the general government. Unless you're like commie Bernie Sanders who will tell you schooling is a right specified somewhere in the Constitution, in invisible ink I suppose.

Providing for the common defense is mentioned in the Constitution but it does not specify exactly what that entails. Remember, the Second Amendment states "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed". "a free State" does not refer to the general government of the United States, but to the individual states that comprised the compact.

The military and schools are not the same other than they have both been turned into scams to rip the taxpayers off under the pretense of "the public good". Remember Eisenhower's warning about the "military-industrial complex"? Somehow providing for the common defense of the states has been expanded to 900 military installations around the world, unconstitutional wars, defending other countries and subsidizing their militaries, even funding enemies like the Taliban.

Likewise, there is the "education industrial complex" that formed under the pretense of the public good. A monstrosity in its own right. For the "general welfare", for the "the public good" are the excuses always.

Constitution 101: To “Provide for the Common Defense”

who paid for the schools that today's childless adults attended as kids, Shawn?

How can you hate the First Church of Appliantology?!!!

I’m all for the separation of the religion of progressivism and state.