Blank Check DangerBettina Krause November/December 2022
Regardless of what you thought of his politics, there was something seductive about Paul Harvey’s style of storytelling. As an American radio icon for more than a half century, Harvey’s specialty was taking stories and finding an unanticipated twist that transformed the mundane into the intriguing. He demonstrated this skill most clearly in his long-running series “The Rest of the Story.”
I had a Rest of the Story moment recently when I came across a short article on a local Maine news website about one of this summer’s landmark Supreme Court decisions—Carson v. Makin. In Carson the Court’s majority sidestepped First Amendment establishment clause concerns and precedent. Instead, it gave a forceful turn of the faucet in favor of increasing the flow of state funding to religious schools.
Many Christians celebrated. Understandably, they saw it as a victory for religiously affiliated schools, both in Maine and throughout the country. So I was surprised to read what happened in the months following the decision.
Of all the religious schools in Maine now eligible to participate in the state tuition reimbursement program, the number that have applied for the current school year comes to a grand total of … one. Even Bangor Christian School, which was at the center of the case, chose not to apply to participate.
Why? Their reluctance can perhaps be explained, in part, by comments from Maine’s attorney general Aaron Frey. Soon after the Carson decision Frey said: “I intend to explore with Governor Mills’ administration and members of the legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”
Translation: Religious schools in Maine that participate in the tuition reimbursement program and that hold certain religious beliefs—especially those related to human sexuality—will eventually face a dilemma. They can conform to state demands and abandon religious teachings and practices the state finds objectionable. Or they can forfeit state funds.
We’re living in an extraordinary moment when it comes to First Amendment religion clause jurisprudence. Research conducted prior to the creation of the current conservative “supermajority” on the Court shows a marked trend in recent decades in favor of religious claimants.
From 1953 to 1969 the Court found in favor of the religious interest 46 percent of the time. Under Chief Justice Warren Burger, from 1969 to 1986, that grew to 51 percent. Under Chief Justice William Rehnquist, from 1986 to 2005, the religious claimant won 58 percent of the time. During the past 17 years that figure has grown to 81 percent under Chief Justice John Roberts.
And today? There’s a heady sense among some within the religious community that this new pro-religion Court offers a blank check. This tempts many to ask, What else could we write on that check? How far can we go in expanding religious free exercise in ways that minimize establishment clause restraints?
Before we cash in, though, perhaps we should consider some potential downstream consequences.
The Rest of the Story
As Maine’s religious school discovered, forcing open the faucet of state funding inevitably creates pressure for religion, and religious institutions, to change. That pressure may come immediately or further down the track. And an institution that comes to rely on state dollars will tend to look for ways to keep that support coming, whether by adjusting beliefs, or codes of conduct, or hiring practices, or perhaps simply toning down its religious mission.
Contrary to what many believe, the establishment clause protects religion. A recent international study looked at nations in which Christian denominations receive significant state privileges and found a disturbing paradox: a privileged Christianity is a less spiritually healthy Christianity.1 The Church of England provides a case in point. If you saw any of the pageantry around the funeral of Queen Elizabeth II and the ascension of King Charles III, you’ll have noticed that religious identity and practice is fused with Britain’s political institutions. The monarch serves as head of the state church—a faith that, not so incidentally, has experienced one of the fastest declines in attendance and participation of any mainline Western denomination.2
There’s another reason for treating the blank check with caution. It may irreparably harm the very institution that’s currently providing legal wins for religion.
In 1835 the French political thinker Alexis de Tocqueville tried to describe the unique role the U.S. Supreme Court plays within American society. He wrote that “the peace, the prosperity, and the very existence of the Union” are vested in the hands of the justices of the Supreme Court. He understood that the legitimacy of the Court—as a tribunal of last resort on constitutional questions—is an essential load-bearing pillar of the American republic.
But this pillar isn’t invulnerable. Retired Supreme Court Justice Stephen Breyer recently restated an obvious but significant fact: the Court’s power relies entirely “upon the public’s willingness to respect its decisions, even those with which they disagree.”3 Perhaps surprisingly, for the past 246 years Americans have been willing to accept the dictates of this unelected body that, as Alexander Hamilton famously pointed out, controls neither the sword nor the purse.
Today, though, the Court is seen as more politically and religiously partisan than ever before. Only 25 percent of Americans have “quite a lot” or “a great deal” of confidence in the Supreme Court, according to the most recent data from Gallup. This is an 11 percent drop in public trust in the Court since last year and the largest one-year drop in the Court’s rating since the poll began in 1973.
Taking a bullish attitude to religious free exercise rights—expanding these in ways that diminish vital establishment clause protections—will only contribute to plummeting public faith in the Court. More than one troubled democracy around the world can attest to what happens when this essential pillar of trust in a nation’s constitutional court erodes beyond repair.
Should we stop seeking legal remedies for religious freedom issues? Of course not. Defending the free exercise rights of Americans has never been more important. But doing so in a way calculated to diminish establishment clause restraints will result in a “rest of the story” that will satisfy no one. Least of all those who care about the long-term health of religious freedom—and of religion.
1 Nilay Saiya, Stuti Manchanda, “Paradoxes of Pluralism, Privilege, and Persecution: Explaining Christian Growth and Decline Worldwide,” Sociology of Religion, April 7, 2021.
2 John Hayward, Growth, Decline and Extinction of UK Churches, Church Growth Modelling, May 15, 2022, https://bit.ly/3MXB9tK.
3 Stephen Breyer, The Authority of the Court and the Peril of Politics (Cambridge, Mass.: Harvard University Press, 2021), p. 1.
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.