The case that's testing the Supreme Court's boundaries on church and state

If a state pays for a student’s secular education, must it also pay for students’ religious education? That’s the question presented in Carson v. Makin, a case currently being argued at the Supreme Court.

Maine, with a large area and small student population, pays for students to attend private, secular schools in districts that don’t have a public high school. Now, some religious schools are demanding taxpayer dollars for their students regardless of the provision in Maine’s constitution that prohibits public funding for religious education.

Both sides recognize the fundamental legal principle that government must be “neutral” (Thomas Jefferson used the term “impartial”) vis-à-vis different religions or between religion and no religion. The question is how to apply that principle.

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Maine argues that it is willing to pay for any schools offering the same education available in public schools, a secular education with a proscribed curriculum. The state is “neutral” in who it pays for such a secular education, but it is not required to expand purchases with tax dollars to an essentially different product, a religious education.

After all, if any “education” qualifies, a student could argue that the state should pay for her sports car, something that provides an education of sorts. Or that he should be paid to learn exotic dancing or massage. If a state, in the name of neutrality, must expand its purchases beyond a specified secular education to include religious education, does that mean it must provide other forms of “education”? And will the court’s conservatives, who demand deference to states when convenient, ignore Maine’s interest in its constitutional requirement prohibiting funding of religion?

But there is a second, arguably even more important issue behind this case: If a law is found to be neutral, does that insulate it from challenge under the First Amendment?

Maine laws, for example, prohibit schools that receive public funds from discriminating on the basis of religion or sexual orientation. If private, religious schools demand public funds in the name of neutrality, will they be bound by those neutral requirements? Can they fire LGBTQ teachers? Can they demand teachers profess their particular religion?

In a number of cases, Supreme Court conservatives have been straining to breach the wall of separation protected by the neutrality principle. For example, if neutral laws prohibit discrimination on the basis of race and sexual orientation, can a private business demand an exemption on religious grounds? Can a bakery refuse to bake a cake for a gay couple? Can a wedding venue refuse to rent to a biracial couple? Can a court clerk refuse to issue wedding licenses to a Jewish-Christian couple? (While recent cases focus on anti-LGBTQ discrimination, the same principle is at stake in racial and religious discrimination.) This would involve not neutrality, but a preference for religion.

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Jefferson was clear that if a law is neutral or impartial, no one has a right to an exemption based on religious freedom. He used the example of a ban on slaughtering lambs during a war (to encourage wool and meat production). If the government banned the slaughter of lambs for religious ceremonies (but not for other purposes) or prohibited Jews from slaughtering lambs, those would not be neutral regulations; on their face, they violate the First Amendment, but there is no constitutional right to a religious exemption from a neutral law.

Laws must be neutral and, as a general matter, address an “object of civil government,” to use Jefferson’s term, “acts against peace and good order.” But once they do — and anti-discrimination laws fall firmly within the bounds of legitimate government regulation — no one can claim a religious exemption based on personal beliefs. “Such a system would be courting anarchy,” Justice Scalia explained in the controlling case.

Jefferson saw neutrality as a way to protect religious freedom and both religion and government from the corruption of mixing church and state. Eighteenth-century evangelicals agreed. If the court demands Maine fund religious education, will it apply the principle consistently and reject challenges to laws against discrimination?

John A. Ragosta, Ph.D., JD, (@johnragosta) is a fellow at Virginia Humanities and author of “Religious Freedom: Jefferson’s Legacy, America’s Creed.”