A Step Too Far?Nicholas P. MillerAlan J. Reinach January/February 2023
Last year’s Supreme Court decision in Carson v. Makin laid the foundation for a new era in the flow of state funds to religious schools in the United States.
Was this decision a much-needed corrective to school-choice programs? An end to unjustified discrimination against religiously affiliated schools?
Or was it the work of a conservative Supreme Court majority intent on dismantling vital establishment clause safeguards?
Two First Amendment attorneys agree to disagree.
It’s easy to forget that behind the headlines of high-profile Supreme Court decisions are often ordinary people engaged in everyday activities. The family that gave their name to last year’s landmark religious school funding case, Carson v. Makin, trace their involvement to a discussion about family finances.
In 2017 Amy and David Carson, residents of the tiny Maine township of Glenburn, faced a dilemma about their daughter’s education. In their sparsely populated rural school district, there was no state-run high school within easy striking distance of their home. Instead, the state offered families such as the Carsons the funds to send their children to a local private high school—so long as they chose a school that was “nonsectarian,” or nonreligious.
Their daughter, about to enter ninth grade, was now eligible for Maine’s tuition assistance program. But the school she’d attended since kindergarten, Bangor Christian School, wasn’t eligible. Should they take advantage of the government program and move their daughter to a nonreligious private school? Or should they continue to stretch their limited family budget and pay the almost $6,000 annual tuition to keep her at her current school?
For Amy and David, neither choice felt right. Why, they wondered, should the religious character of Bangor Christian School disqualify it from the state program? Wasn’t that discrimination against religion? An encroachment on religious free exercise?
Five years and a high-profile lawsuit later, the Carsons got answers to their questions.
In a 6-3 decision the Supreme Court held that Maine could not exclude families who send their children to religious schools from its state-funded tuition reimbursement program. Writing for the majority, Chief Justice John Roberts said: “Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the free exercise clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
What is the significance of the Court’s decision in Carson v. Makin and what does it portend—both for state school-choice programs and for the future of First Amendment religion clause jurisprudence?
Nicholas P. Miller and Alan J. Reinach, each with decades of experience advocating for the religious freedom rights of both individuals and institutions, lay out competing interpretations.
The decision in Carson v. Makin supports meaningful parental choice in education. This support is not prohibited by the First Amendment’s establishment clause.
IN THE AFFIRMATIVE
Confessions of a Church-State Separationist
By Nicholas P. Miller
What are we to think of the decision in Carson v. Makin that allows private citizens to choose to use state tuition vouchers at private religious schools, and not just secular ones? Is it “a vindication of the right of religion and religious people to be free from discrimination,” as many of our friends on the political and religious right claim? Or is it, “the sky is falling on the constitutional separation of church and state as well as genuine religious freedom,” as our friends on the political and ideological left assert?
Which assessment is more accurate? How should those who care about religious freedom and the separation of church and state—as well as having strong commitments to Christian education—think about this decision and its implications? Given the complexity and challenges of our times, I think that anyone who claims there is a simple and obvious way to view this decision—whether as a resounding victory for religious freedom or another body blow to the separation of church and state—is mistaken.
I have publicly advocated for church-state separation and even appeared before the Supreme Court in its defense. My experience in the field has persuaded me that the principles of church-state separation are enduring and universal, and even find a basis in Scripture.
But I also have come to understand that the application of those principles needs updating and refining as circumstances in culture and society change. By blindly holding on to the applications of the past, we might actually undermine and work against the larger principles that church-state separation is meant to protect—the freedom of religious choice of individuals and communities.
Preventing Religious Discrimination?
First, the Carson case did not institute a completely new rule, but rather revived an old one. Prior to 1981, Maine citizens could and did ask for these tuition payments to be sent to religious schools. But in that year the Maine attorney general decided that under Supreme Court precedent, such payments to religious schools would violate the establishment clause. About two decades later, however, the Supreme Court made it clear that such parent-directed payments to religious schools were acceptable under the Constitution.
In the 2002 case of Zelman v. Harris the Court ruled that state-funded vouchers could go to religious schools, as long as the “government aid to religious schools” occurred “wholly as a result of [the parents’] own genuine and independent private choices.” Shortly after, Maine officials reconsidered and could have changed their approach to limits on aid to religious schools. They decided, however, to continue preventing such aid from going to sectarian schools. Maine was able to do this because of a Supreme Court doctrine called “play in the joints.” This means that not everything that is allowed by the establishment clause is required under the free exercise clause.
This is illustrated well by the Zelman decision, where the Supreme Court said that if a state had a voucher program, it could include religious schools if it desired, but that it did not have to include religious schools. But decisions since Zelman have called into question the “play in the joints” doctrine. Trinity Lutheran, in 2017, involved a rubberized playground surface that the state of Missouri was making available to all private schools, except for religious schools. The Court ruled that the free exercise clause did not permit a state to “expressly discriminate against otherwise eligible recipients solely because of their religious character.” In 2020 in Espinoza, a case dealing with tuition tax credits, the Court ruled that “a state need not subsidize private education,” but that “once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”
In light of these prior cases, the Court’s decision in Makin was hardly revolutionary. Rather, it was the straightforward application of the principles set out in Zelman, Trinity Lutheran, and Espinoza which say that a state cannot provide resources to private schools and discriminate against religious ones. It also returned the law to the status it had been in Maine prior to 1981, and the separation of church and state did not collapse.
The Constitutional Sky Is Falling?
The liberal wing of the Court believes that Carson “continues to dismantle the wall of separation between church and state that the Framers fought to build” (Sotomayor, 1). Justice Breyer similarly accused the majority of paying “almost no attention” to the establishment clause and “giving almost exclusive attention to the words” of the free exercise clause (Breyer, 1).
The primary concern of the dissenters is the supposed increased religious strife that they believed would come from allowing state funds and resources to be used for promoting religious education. As Breyer put it: “Here I simply note the increased risk of religiously based social conflict when government promotes religion in its public school system. . . . We are today a Nation with well over 100 different religious groups. . . . And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division. The religion clauses were written in part to help avoid that disunion” (Breyer, 5).
Sotomayor rather darkly characterized the majority opinion as heralding the end of a meaningful separation of church and state. “In 2017 I feared that the Court was ‘leading us to a place where the separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today the Court leads us to a place where the separation of church and state becomes a constitutional violation” (Sotomayor, 5).
But is the constitutional sky really falling because of this decision? Will the dark prophecies about the indirect funding of religion producing greater social strife come true? What about the concern that neither the majority or dissent really touched on, that state funds could undermine and corrupt religious education?
Religiously Neutral Spaces?
Twenty years ago I shared many of the concerns of the dissenters in this case. I come from a dissenting Protestant background and heritage, rooted in the Anabaptist/Baptist/free church heritage that took the separation of church and state seriously. I saw the specter of strings and compromise attached to state funds, as well as the social divisions and strife that Justice Breyer has predicted.1
But now, 20 years later, I question my position in opposing Zelman, not at the time I did it, but now. It is not just that I have changed my views on that matter; the society in which we live has rather dramatically changed. Two decades ago it was perhaps still somewhat possible to talk about religiously neutral public school spaces, but is that really possible any longer? With the rise of secular sexual and gender ideologies, revised views of the family, the continued rejection of all but the most materialistic explanation for the origins of life and humanity, and opposing views of human nature on issues ranging from critical race theory to feminist ideology, can public schools really be described as religiously neutral places?
And it is on this point that I think Justice Breyer may not see the elephant in the room—the current existence of massive social strife over basic, metaphysically rooted social and human values. Such social strife is not, I propose, a remote future risk; rather it is a rather overwhelming present social and cultural reality in our country. It has largely defined and driven the political and social strife we have seen during the past several years, if not the past decade or two.
It’s just that the strife is not so much between competing religious denominations, sects, and faiths as we have traditionally thought of it. Rather, there is one great conflict, a great, ongoing, roiling strife between a metaphysic based on a materialist, humanist, evolutionary view of life and humanity and almost all the traditional faiths and religions that subscribe to some set of values based on humans created in the image of the divine. Currently, instead of being neutral in this debate, the great weight and resources of the state are largely placed squarely behind the secular humanist version of creation, anthropology, family, gender, sexuality, racial origins, and so on.
Once this larger picture is understood, there is a strong argument to be made that providing state resources to fund educational ideologies, based on the free and independent choices of parents, may well reduce social conflict. Currently in many states, parents are forced to send their children to schools based on, for many of them, an alien worldview that rejects many of their deepest faith commitments, practices, and teachings.
Surely giving such parents an option to use state resources (which, remember, is based in good part on their own tax payments) to select an education for their children that meets basic state curricula standards, but does so in the context of a faith and belief system that is consistent with their own, will reduce strife and anxiety about the zero-sum struggle for survival and even existence that our public political debates have too often become.
And the possible corrupting effect of this on religion? Well, isn’t that for religious people and institutions to consider and worry about? Three thousand years ago the book of Proverbs advised that “when you sit down to eat with a ruler, consider carefully what is before you, and put a knife to your throat if you are . . . given to appetite. Do not desire his delicacies, for they are deceptive food” (Proverbs 23:1–3, NKJV).2 I have always been intrigued by the fact that the proverb does not say, “Don’t eat with a ruler.” Rather, the instruction is to be careful, not to overindulge, and watch your appetites.
The implication is that when these resources can be used wisely and carefully, it is appropriate to do so. From within my own religious tradition, Seventh-day Adventist church cofounder Ellen White, who helped craft Adventist thinking on what an appropriate separation of church and state should look like, agreed with this view. She wrote that “the Lord still moves upon the hearts of kings and rules in behalf of His people, and it becomes those who are so deeply interested in the religious liberty question not to cut off any favors, or withdraw themselves from the help that God has moved men to give, for the advancement of His cause.”3
Perhaps the decision in Carson will help pave the way for these words from the nineteenth century to find even greater fulfilment today, as the new opportunities the decision will provide are carefully and cautiously considered by people and institutions of faith.
1 I was invited as a young lawyer to participate in a public debate at the National Press Club in Washington, D.C. to discuss the Zelman decision in the week it was decided. I was pitted against the lawyer for the Catholic Bishops, who argued that vouchers were good for religious education. I argued that they might well be a threat, and could undermine the very values and ideals that made religious education valuable and unique. (The transcript of that debate is still preserved here: https://www.pewresearch.org/religion/2002/06/28/judgment-day-for-school-vouchers/.)
2 Bible texts credited to NKJV are from the New King James Version. Copyright © 1979, 1980, 1982 by Thomas Nelson, Inc. Used by permission. All rights reserved.
3 Ellen G. White, Testimonies to Ministers and Gospel Workers (Mountain View, CA: Pacific Press, 1923), p. 202.
IN THE NEGATIVE
Tear Down This Wall?
By Alan J. Reinach
All this talk about walls gets a bit confusing. Ronald Reagan famously said he would see that the Berlin Wall came down, and so it did, albeit not until his two terms as president had ended. Then along came Donald Trump, who insisted that he would build a border wall at Mexico’s expense. He had somewhat less success than Reagan. For decades we’ve heard rhetoric from conservative religious circles about tearing down a different wall: the wall of separation between church and state. Former Chief Justice William Rehnquist, before he was chief, opined that “the ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”1
The First Amendment’s first clause prohibiting religious establishments has long been understood to prohibit direct financial aid to religious institutions. With the Supreme Court’s decision in June in Carson v. Makin, whatever remained of this prohibition has been reduced to a proverbial pile of rubble.
The chorus of attacks against this wall have also been taken up by politicians, such as Lauren Boebert, a Republican congresswoman from Colorado. To applause in a Colorado megachurch, Boebert recently said: “And I’m tired of this ‘separation of church and state’ junk that’s not in the Constitution. It was in a stinking letter, and it means nothing like what they say it does. The church is supposed to direct the government,” she continued. “The government is not supposed to direct the church. That is not how our founding fathers intended it.”
What is this wall, anyway, and why is it under such vicious attack? What is it that conservatives object to?
Distinctions between the spheres of church and state have a long pedigree in Western civilization, with such theologians as Augustine and Aquinas postulating two kingdoms or two swords. But it wasn’t until the dissenting Protestant tradition landed in New England in the guise of a separatist minister, Roger Williams, that the modern concept developed. Williams referred to a “hedge” or “wall” of separation between the “garden of the church” and the “wilderness of the world.” This was no “one way” wall, as revisionist historians like to say, but a “high and impregnable” divide between the institutions of church and state.
By the colonial period, Baptists were foremost in developing concepts of liberty of conscience. Baptists adamantly refused to pay taxes to support the church. In New England the typical arrangement was for towns to have a single “congregational” church whose minister was supported by taxes. Even in those towns in which Baptists were sufficiently numerous to establish their own meetinghouse, they objected to having their taxes go to support their own church. Support for religion had to be entirely voluntary.
Baptist concepts of voluntarism in religion had an influence on both Thomas Jefferson and James Madison. In 1785, following the end of the war with England, Patrick Henry introduced a bill for funding teachers of religion. He believed that Christian religious instruction would improve the morals and peace of society. Madison organized the opposition, getting the bill put over to the next session and, meanwhile, circulating a petition against it that has become perhaps the most influential document in the history of church-state relations in the United States, having been quoted regularly in Supreme Court cases until a turning point in 2000.
Madison, and those who signed his “Memorial and Remonstrance Against Religious Assessments,” rejected tax funding of religion as a violation of liberty of conscience. Madison argued that government has no legitimate authority over religion, and therefore the legislature lacks the right to tax citizens to support religion. Madison also contended that tax support of religion “is a contradiction to the Christian religion itself, for every page of it disavows a dependence on the powers of this world.” Madison also argued from history: “During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution.” When Madison wrote that “it is proper to take alarm at the first experiment on our liberties,” no doubt he had this very history in mind, a history of church-state collaboration that led to the excesses of the Inquisition.
Madison’s arguments won the day. Patrick Henry’s bill was defeated, and in its place Thomas Jefferson’s Virginia Statute of Religious Freedom was enacted. This measure denied to the government the right to compel either church attendance or financial support of religion.
By the time the Bill of Rights was debated, the founding generation clearly understood “an establishment of religion” to include tax support for churches and religious education. The First Amendment’s establishment clause protected the right to be free of any coerced financial support of religion.
Indeed, James Madison initially rejected the need for a Bill of Rights because he did not believe the Constitution gave the federal government any power to trample on individual rights. Moreover, Madison understood the Constitution to have created a government of limited, delegated powers, lacking authority to promote or fund religion. Baptist minister John Leland convinced Madison to support a Bill of Rights, both in principle and out of political expediency, since Madison’s constituents insisted on having their rights spelled out.
The Supreme Court did not take up the task of applying the establishment clause until the 1940s, and, over the following three decades, repeatedly ruled in cases involving tax funding of private religious schools. Although the Court whittled away at the margins of the wall of separation, it was not until 1971 that the Court established a three-part test of what constitutes a forbidden establishment.
In the case of Lemon v. Kurtzman the Court held that when government acts, it must (1) be for a primarily secular purpose; (2) have a primarily secular effect; and (3) not unduly entangle church and state.
Ever since, the chorus from the right has been to attack the Lemon test. Such attacks tell us a great deal about the goals of the right. Rejecting Lemon means that the government is permitted to pursue overtly religious purposes, and to engage in activities that have primarily religious impacts. Moreover, there is no concern about too cozy an entangling relationship between church and state. Lauren Boebert’s quip may not pass for constitutional scholarship, but it accurately conveys the ethos of the right: “The church is supposed to direct the government; the government is not supposed to direct the church.”
Which brings us to a series of Supreme Court decisions that have reduced the famous wall between church and state to rubble. Whereas for decades the question was whether the state could fund various aspects of religious schools that did not involve religious instruction, such as school bus transportation or textbooks, in recent years the Court has reversed course. Now, to exclude religious schools and churches from funding schemes otherwise available is a form of discrimination, and therefore a violation of the free exercise clause. The Court went from prohibiting direct aid to religion, completely bypassed the middle ground permitting state aid to religion, and has adopted the most extreme position that religion must be funded where similar secular programs are funded.
In Trinity Lutheran v. Come, the Court held in 2017 that Missouri violated the church’s free exercise rights by excluding the church from a grant program that pays for playground safety surfaces. This was the first time the Court approved direct funds to a church. Previously, in 2002, the Court in Zelman v. Simmons-Harris had approved tuition vouchers for use in religious schools under the guise of “parental choice.” In those voucher schemes, the funds were paid directly from the state to the church school, arguably entangling the school in both regulations and subjecting it to audit.
In Espinoza v. Montana Department of Revenue the Court in 2020 struck down a Montana constitutional provision denying government funding of religious schools, holding that it violated the free exercise rights of parents and children to choose religious education. The Court criticized as anti-Catholic the late-nineteenth-century state constitutional amendments known as the Blaine amendments, choosing to ignore colonial history, wherein all of the states eliminated their own religious establishments and ceased funding religious education.
Finally, in the term just ended, in Carson v. Makin, the Court struck down a Maine program that funded secular but not religious private schools. Maine provided tuition aid for high school students who lived too far away from a public high school, but only for nonsectarian education. The Supreme Court said this was discrimination and that Maine is required to include private religious schools.
The “conservative” wing of the Supreme Court proclaims its adherence to the “original intent” of the founders of the Constitution, or, more recently, has invoked “history and tradition.” But when the justices approve tax support for religious schools, they contradict the most basic premise of colonial disestablishment—that both state and federal governments were deprived of authority to compel citizens to pay taxes to support religion. This was understood as a fundamental violation of liberty of conscience. What the Supreme Court is doing by invoking the nation’s founders is the worst sort of gaslighting of the American people. It is intellectually dishonest and amounts to “fake history.” In these funding cases, the Supreme Court is doing policy masquerading as law.
Ben Franklin would not be mistaken for a theologian, but he understood: “When a religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support, so that its professors are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one.”
The Carson decision must be read in light of the dominionist aspirations of what used to be known simply as “the religious right” but is now recognized as “Christian nationalism.” Journalist Katherine Stewart, who has tracked the rise of religious nationalism, recently reported that the dominionist ethos, once held only privately by religious right leaders, is now on full public display at conservative political gatherings. Dominionism is fundamentally anti-democratic, as it holds that Christians are called to exercise dominion and conform all spheres of life—politics, law, economics, media, and culture—to their own biblical values.
In its pursuit of tax funding of religious institutions, American religion is calling for help of the civil power. Prominent Seventh-day Adventist writer Ellen G. White observed insightfully: “When the church begins to seek for the support of secular power, it is evident that she is devoid of the power of Christ—the constraint of divine love.”2 Roger Williams warned that tearing down the hedge protecting the garden of the church from the wilderness of the state would bring corruption to both. I fear he spoke prophetically. America’s founders understood from history that religious establishments were incompatible with religious freedom. Government financial support of religion in Europe has significantly contributed to a “post-Christian” culture. With its success at gaining access to tax funding for religious institutions, the American church may well gain the world at the cost of its soul.
1 Wallace v. Jaffree, 472 U.S. 38 (1985).
2 Ellen G. White, Thoughts from the Mount of Blessing (Mountain View, CA: Pacific Press, 1896), p. 127.
Article Author: Nicholas P. Miller
Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.
Article Author: Alan J. Reinach
Alan J. Reinach is Executive Director of the Church State Council, the religious liberty educational and advocacy arm of the Pacific Union Conference of Seventh-day Adventists, representing five western states: Arizona, California, Hawaii, Nevada and Utah. His legal practice emphasizes First Amendment religious freedom cases, and religious accommodation cases under Title VII of the Civil Rights Act of 1964 and related state civil rights laws. Reinach is also a Seventh-day Adventist minister who speaks regularly on religious freedom topics, and is the host of a nationally syndicated weekly radio broadcast, “Freedom’s Ring.” He is the principal author and editor of Politics and Prophecy: The Battle for Religious Liberty and the Authentic Gospel, and a frequent contributor to Libertymagazine.