John Roberts played the long game on public funding for religious schools


Chief Justice John Roberts has been laying the groundwork for years for Tuesday’s sweeping ruling requiring states to fund religious education.

But he always tried to signal some caution. Five years ago, in a financial dispute involving a faith-based school in Missouri, he even added a footnote saying the Supreme Court ruling only applied to money for land resurfacing games. Other conservatives called him out and suggested the caveat was absurd because the ruling would, of course, affect other cases of religious funding.

And he did, by Roberts’ own hand — in 2020, and then on Tuesday, when the strategic chief justice took a giant step and penned the ruling that Maine must pay for religious education as part of a tuition assistance program for private schools. Justification once limited to playgrounds has been extended to a wide range of religious instruction.

Tuesday’s opinion reinforces Roberts’ conservative good faith, even as he regularly tries to find common ground to improve the court’s institutionalism and image.

The Supreme Court is in the final days of its annual session, negotiating over abortion rights, gun control and environmental protections, among other controversies. Roberts will likely try to keep the new conservative supermajority from pushing too far to the right in some areas, including abortion rights, where he pushed for a compromise ruling that wouldn’t completely overturn Roe v. Wade.

But as Tuesday’s decision in Carson v. Makin, he remains really comfortable on the right wing. He was part of a majority that consistently rules religious conservatives, not only with public funding for faith-based schools, but also for prayer at public meetings and additional exemptions to the Care Act’s contraceptive coverage mandate. affordable.

In his opinion on Tuesday for the six right-wing justices, Roberts insisted the decision simply flowed from the principles applied in the 2017 and 2020 cases.

But unlike those limited decisions in Missouri and then Montana cases, the Maine decision specifically involves funds that would be used for religious education, and it demonstrates more forcefully than ever that state rules that could have considered neutral in the past can be invalidated. as religiously discriminatory.

Earlier rulings authored by Roberts prohibited states from excluding religious schools from public funding solely on the basis of their religious “status” or “character.” The new case tested whether a state that subsidizes private education could withhold funds based on a school’s religious “use.” And by requiring that public money be used for education that promotes religion, the court has generated a series of new questions about the separation of church and state.

“What happens when ‘can’ becomes ‘must’?” Judge Stephen Breyer, the court’s senior liberal, wrote in a dissent. “Does this transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does this mean that school districts that give out vouchers for use at charter schools have to pay matching funds to parents who want to give their children a religious education? »

The Maine case arose at the intersection of the two religious clauses of the First Amendment, prohibiting the government’s “establishment of religion” and guaranteeing its “free exercise.”

The disputed program provided money for students to attend private schools in areas without public high schools, but excluded sectarian institutions, defined in part as those “associated with a particular faith or belief system and who, in addition to teaching academic subjects, promote the faith”. or belief system with which it is associated.

The Supreme Court struck down that exclusion on the basis of the First Amendment’s protection for the free exercise of religion. Roberts said Maine’s exclusion was based on a stricter separation of church and state than the Constitution requires.

Breyer, however, claimed that the majority “pays almost no attention to the words of the first clause while paying almost exclusive attention to the words of the second”. He noted that the two clauses are often in tension, and that states have ample leeway to further “anti-establishment interests” by withholding money for religious schools without infringing on free exercise.

He was joined in his dissent by fellow liberals Sonia Sotomayor and Elena Kagan, and Sotomayor also wrote separately recalling that she sent a flare five years ago in Trinity Lutheran Church of Columbia v. Comer, when Roberts settled down. his principles on the intersection of First Amendment establishment and free exercise clauses.

“I warned in Trinity Lutheran…that the Court’s analysis could be manipulated,” Sotomayor wrote, then added, “This Court should not have gone down this road five years ago.

In 2017, Roberts said Missouri had unconstitutionally excluded the Trinity Lutheran Church Children’s Learning Center, based on its religious “status,” from a program that offered grants to children. non-profit groups to purchase playground surfaces made from recycled tires.

Roberts’ narrow rationale, along with a footnote claiming that the case “involves express discrimination based on religious identity with respect to the resurfacing of playgrounds,” helped lure Kagan and, to a lesser extent, Breyer, on the decision. (Sotomayor disagreed with the late Justice Ruth Bader Ginsburg, who was replaced in October 2020 by Justice Amy Coney Barrett.)

Roberts reinforced the distinction between status and use in the Espinoza v. Montana Department of Revenue case in 2020, when he wrote that states cannot bar schools from participating in student aid programs. solely because of the religious character of the schools.

On Tuesday, the chief justice demonstrated that he had never been locked into the distinction.

“In Trinity Lutheran and Espinoza, we argued that the free exercise clause prohibits discrimination based on religious status,” he wrote. “But these decisions never suggested that discrimination based on use is less offensive to the free exercise clause.”

Rejecting the dissenters’ assertion of the importance of “government neutrality,” Roberts said that “there is nothing neutral about Maine’s program. The state pays tuition for some students in private schools – as long as the schools are not religious. This is discrimination against religion.

He added, “The anti-establishment interest of a state does not justify laws that exclude certain members of the community from a public benefit otherwise generally available by reason of their religious exercise.”

The dissenters countered that nothing in the free exercise clause would “force” Maine to provide tuition assistance to private schools that will use the funds to provide religious education, and they used Roberts’ earlier cases to support their position.

“(T)he Court’s decisions in Trinity Lutheran and Espinoza prohibit states from denying aid to religious schools solely on the basis of a school’s religious status, that is, its affiliation with an organization religion or its control,” Breyer said. “But we never said that the free exercise clause prohibits states from withholding funds because of the religious use the money will be for.”

In 2017, Roberts was careful to observe that he did not address “religious uses of funding.”

At the time, Judge Neil Gorsuch, joined by Judge Clarence Thomas, said Roberts’ division between religious status and religious use made no sense.

“With respect, I harbor doubts about the stability of such a line,” Gorsuch wrote in a concurring opinion. “Does a religious man say grace before dinner? Or does a man begin his meal in a religious way? Did a religious group build the playground? Or did a group build the playground so it could be used to further a religious mission? »

“I’m afraid,” added Gorsuch, “that some may read it wrongly to suggest that only ‘playground resurfacing’ cases, or only those with some association with child safety or health, or may -be another social good that we find sufficiently worthy, are governed by ‘the decision.

Gorsuch need not have been concerned. Roberts was getting there, albeit gradually progressing. On Tuesday, Gorsuch and the other conservatives joined Roberts’ decision wholeheartedly. None of the liberals, of course, seemed tempted to join this time.


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