Jun 23, 2022

The SCOTUS religious school ruling.

The SCOTUS religious school ruling.

The ruling could have huge ramifications.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 13 minutes.

The Supreme Court's ruling in the Maine on funding religious schools. Plus, a question about how to make a winning presidential candidate.

Members of the Supreme Court during a State of the Union address in 2020. Photo: The White House
Members of the Supreme Court during a State of the Union address in 2020. Photo: The White House

See you tomorrow.

In tomorrow's Friday edition, we'll be releasing a full transcript of an interview with one of the more fascinating people in politics today: Clementine Morrigan. She is both a leftist and one of the most outspoken critics of the left that I have seen online. I'm always interested in folks who criticize their own, and I'll be sitting down with Clementine for an interview this afternoon. I'm excited to pick her brain. As far as I can tell, there are not many people like her.


Thank you.

For so many kind emails (and thoughtful criticisms) from folks who wrote in yesterday in response to "The whole point of Tangle." You, the readers, consistently help us improve and inspire us to keep going. While I was a bit frustrated yesterday, I’ve also never been more excited about the future of this project and the goal we’re after. Thank you.

ICYMI: Read yesterday's piece here.


Quick hits.

  1. The FDA announced a ban on the e-cigarette maker Juul from the U.S. market and is also considering a cap on levels of nicotine allowed in tobacco products. (The ban)
  2. Andrew Gillum, the former Mayor of Tallahassee and Democratic gubernatorial candidate in Florida, was hit with a 21-count federal indictment alleging wire fraud, conspiracy charges and false statements to the FBI. (The charges)
  3. The House Jan. 6 Committee will hold its fifth public hearing today and has delayed next week's hearing schedule until July in order to review new evidence. (The hearings)
  4. The town of Brooklyn Center, Minnesota, says it will pay $3.25 million to the family of Daunte Wright, who was shot and killed in a traffic stop last year. (The settlement)
  5. Uvalde Police Chief Pedro Arredondo was placed on administrative leave after a Texas Public Safety official described an "abject failure" in the response to the Robb Elementary School shooting. (The suspension)
  6. BREAKING: In a major ruling on gun rights, the Supreme Court has struck down New York’s law restricting the acquisition of concealed carry permits. (The ruling)

Today's topic.

The Supreme Court's ruling on religious schools in Maine. On Tuesday, the Supreme Court ruled that Maine violated the Constitution when the state refused to make public funding available to students who attend religious schools. The case, Carson v. Makin, challenged Maine's system for funding public education, which is designed to help students in rural and sparsely populated areas. When a district doesn't have its own secondary school, parents can send students to other public or private schools designated by the district, and the state may help pay tuition if the school is accredited.

If a student opts to go that route, they can seek out government funds — but may only attend schools that do not provide religious instruction. Two Maine families challenged this law, saying the exclusion of religious schools from the tuition offerings violates the First Amendment's free exercise clause (which guarantees the free exercise of religion). Meanwhile, the state has argued that funding religious schools would violate the First Amendment's establishment clause, which says, “Congress shall pass no law respecting an establishment of religion.” In many ways, the case hinged on the tension between these two First Amendment clauses.

In a broad 6-3 ruling issued by Chief Justice John Roberts, the court agreed with the Maine families. In practical terms, the ruling means if a state or local government decides to subsidize private schools, it must also allow families to use taxpayer funds to pay for religious education, SCOTUSblog reported.

The ruling is another in a recent wave of victories for religious institutions, and one of several that involved challenging state policies which barred them from receiving funding on the grounds they offered religious education.

Justice Roberts explained the ruling by saying Maine will pay tuition for some students to attend private school so long as the schools are not religious. "That is discrimination against religion," he said plainly. It did not matter that the state’s interest was in providing students the equivalent of a free, secular public education. He also dismissed the idea that this would require the state to fund religious education, saying Maine could create more public schools or improve transportation servicing them if it didn't want to extend funding to private education, religious or not.

In her dissent, Justice Sonia Sotomayor said the decision upended constitutional doctrine separating state and religion and warned about her "growing concern for where the Court will lead us next."

Below, we'll take a look at some arguments from the right and left, then my take.


What the right is saying.

  • The right argues the original law was obvious discrimination against religious schools.
  • They dismiss the idea that the ruling will erode the separation of church and state.
  • They accuse the left of claiming to oppose discrimination until it is the religious kind.

In NBC News, Ilya Somin said this was an "important victory for the constitutional principle that government may not discriminate on the basis of religion."

"It may also help open up valuable opportunities for parents and students, particularly the disadvantaged," Somin said. "In 2020, the Supreme Court ruled in Espinoza v. Montana Department of Revenue that a state-run voucher program may not exclude religious schools simply because of their 'status' as religious institutions. As Chief Justice John Roberts reiterated in his opinion for the court Tuesday, a state may not ‘withhold otherwise available public benefits from religious organizations’ simply because they are religious.

"Roberts also noted that discrimination on the basis of religion presumptively violates the clause protecting the free exercise of religion in the First Amendment, and can only pass judicial scrutiny — i.e. be deemed constitutional — if it ad­vances 'interests of the highest order' and is 'narrowly tailored in pursuit of those interests.' For example, it would surely be unconstitutional for a state to give welfare benefits to Christians while denying them to otherwise eligible secularists," Somin wrote. "While the state can choose not to establish welfare programs in the first place, if it does establish them, the beneficiaries can’t be discriminated against based on religion. The same logic applies to tuition vouchers."

The Deseret News editorial board said critics are falling back on a familiar chord: "It will weaken the separation of church and state, they said."

"This simply isn’t true," the board wrote. "As the majority opinion in the 6-3 ruling said, quoting an earlier court ruling in a different case, The Free Exercise Clause of the First Amendment protects against 'indirect coercion or penalties on the free exercise of religion, not just outright prohibitions... In particular,' the ruling further stated, 'we have repeatedly held that a state violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.' In other words, it may be wrong for the government to establish a favored religion, but it’s equally wrong to penalize people because of their religious preferences," the board wrote.

"Some people would remove religion entirely from the public square," they added. "The founders never intended as much. Rather, religion, in its many forms and shades, should be a part of the robust discussion that fills the public square and informs public life... Tuesday’s ruling concerns itself with how children in rural parts of Maine receive an education. Because traditional public schools are scarce in parts of the state, the law allows tuition assistance to help people send their children to private schools near them. However, the law forbade people from using this money for tuition at religiously based schools, even though those schools had qualified by either being accredited by the New England Association of Schools or by receiving approval from the Maine Department of Education."

In The Washington Examiner, Tim Carney accused the left of holding one form of discrimination dear.

"Maine has many small and shrinking towns, some of which are pretty isolated. Rather than try to stand up or prop up unsustainable public schools where there are few students, Maine pays part of the tuition of parents in these rural towns to send their children to their private schools. But the law has two limitations: Parents must choose a school that is accredited by the regional accreditation body, and the schools cannot be religious," Carney said. "Parents could even send their children to school in Canada or Switzerland under this tuition program.

"They could use these tax dollars to send their children to all-girls schools or to French-language schools," he added. "The schools eligible under this program could also be boarding schools. Schools receiving this money could have no set curriculum at all, as is the case for Bluehill Harbor School, or they could be explicit culture warrior schools, such as Walnut Hill School for the Arts. They just can’t be 'sectarian,' which means the institutions cannot profess a system of belief that involves God. This is obviously illegal discrimination, rooted in a history of unsavory anti-Catholic ideology."


What the left is saying.

  • The left says the ruling erodes the protections in the First Amendment.
  • Some say the problem may even end up being worse than we imagine.
  • Many argue it will leave taxpayers funding discrimination in education.

In Bloomberg, Noah Feldman said the Supreme Court just "eroded the first amendment."

"It represents the end of the centuries-old constitutional ban on direct state aid to the teaching of religion," Feldman said. "And remarkably, it does all this in the name of religious liberty, giving the free-exercise clause of the First Amendment primacy over the establishment clause found in the exact same amendment. The framers’ conception of the two religion clauses of the First Amendment had two parts that fit together. The establishment clause meant the government couldn’t make you perform a religious act or spend taxpayer dollars on religion. The free exercise clause said the government couldn’t stop you from performing a religious act, understood as prayer or preaching or teaching or belief.

"For most of U.S. history, the Supreme Court enforced these clauses by, among other things, saying that the government could not fund the teaching of religion in religious schools," he added. "That principle was substantially undermined 20 years ago when the court held that states could fund religious education — including Catholic schools — indirectly via voucher programs that could be used at secular or religious private schools. But until today, the Supreme Court didn’t go the next step, which has been sought by advocates of religious education ever since. It had never held that if the state pays for private secular education, it must — not may — also pay for religious education."

David Rothkopf said the separation of church and state is crumbling before our eyes.

"In the case of Carson v. Makin, the court ruled that public funds intended to support the education of students for whom a public education option was not available must be made available to parents who wished to use them to pay for religious schools’ tuition," Rothkopf said. "In so doing, the court’s conservative majority essentially ordered that taxpayer funds be used to support religious institutions. The decision is fraught with problems. In his dissent, Justice Stephen Breyer argued: 'The very point of the Establishment Clause is to prevent the government from sponsoring religious activity itself, thereby favoring one religion over another or favoring religion over nonreligion.' (This refers to the section of the First Amendment that prohibits Congress from establishing a state religion.)

"Not only is Justice Breyer’s argument sound, but if anything it may understate the problem," Rothkopf said. "That’s because if states are permitted (or even obligated in such a case) to fund a religious enterprise, they are likely to favor some religious groups over others—which is also to the detriment of those who eschew religion. But such funding also opens the door to government interference in the operations of religious groups. This fact is often overlooked by the advocates of permitting such funding. The state that can write the check can set the rules by which checks get written, or penalize religious groups whose activities fall out of favor."

In Slate, Mark Joseph Stern said this "has the potential to dismantle secular public education in the United States."

"Just two decades ago, this claim would’ve been laughed out of court: SCOTUS only permitted states to subsidize religious schools in 2002; at the time, it would’ve been absurd to say that states have a constitutional obligation to subsidize them," Stern wrote. "Beginning in 2017, the court began to assert that states may not exclude religious schools from public benefits that are available to their secular counterparts. And in 2020, the conservative justices forced states to subsidize religious schools once they began subsidizing secular private education. Tuesday’s decision in Carson takes this radical theory to a new extreme, ordering Maine to extend public education funds to religious indoctrination.

"The two Maine schools that may now receive public funding are openly discriminatory, expelling students and teachers who do not adhere to evangelical Christianity," Stern wrote. “LGBTQ students, as well as straight children of same-sex couples, are not welcome, nor are LGBTQ teachers. Even custodians must be born-again Christians. One school teaches students to 'refute the teachings of the Islamic religion' and believe that men serve as the head of the household. Another requires students to sign a 'covenant' promising to glorify Jesus Christ and attend weekly religious services."


My take.

I've found it useful to look at Supreme Court rulings like this through three lenses: How does the ruling apply the law (i.e., does it appear "correct")? What are the practical implications of the ruling? What kinds of unintended consequences might come from the ruling? Often I can see how a ruling can appear to be correct while also believing some consequences will be negative and unintended. And vice versa, sometimes rulings seem wrong on the merits but I’m glad they happened anyway, because the outcome appears positive.

In this case, I actually think the ruling makes a lot of sense, and I'm not so worried about the practical implications (though there are a couple of things to keep an eye on).

For starters, everything about the system in Maine is complex and unique, as far as I can tell. To refresh: We are talking about the state providing tuition vouchers to students who don't have access to a public school in their immediate area. Those vouchers can be applied to public or private schools. They can even be applied to schools that are religiously affiliated or run by religious institutions. What they can't be applied to are schools that teach religious lessons.

That does seem like an obvious instance of discrimination to me. Maine made a decision to create a unique voucher system and then made a decision to exclude one kind of school — those that teach religion. If a school where students are allowed to create their own curriculum is allowed, I think a religious school should be too.

When you think about the two First Amendment clauses in tension here, on a basic level, it seems clear to me one is more relevant than the other. By not allowing these vouchers to be applied to religious schools, I think the state of Maine is much closer to prohibiting the exercise of religion than it is to establishing or respecting a specific religion by allowing this program to be applied to religious schools.

Even under Tuesday's decision, Maine can still restrict vouchers to schools that fail to meet curriculum standards that apply equally to both religious and secular education. One example is that the state could require the teaching of evolution in biology class — and if the religious schools refuse to teach it, they'd become ineligible for tuition vouchers. The state could also restrict funding for schools that discriminate based on sex or sexual orientation. It could apply this evenly across schools, and thus exclude sectarian schools from the vouchers.

That is to say: The state can still create its own standards for where its money goes. It is not being forced to fund these schools simply because they exist.

And it's worth repeating that this is a voucher program — tax dollars are funding programs that enable people to make choices you or I may disagree with. Disagreeing with a person receiving an education subsidy in rural Maine who sends their child to a school I find objectionable seems similar to disagreeing with a person receiving food stamps in Seattle who buys food I think is unhealthy. If we want to create programs like this to serve communities in need, there should be autonomy given to those people about how to use the money.

All that being said, there are some things to keep an eye on. While this ruling will have a narrow immediate impact, basically touching a couple of schools in rural Maine, the reverberations may be much stronger. For starters, the two schools in Maine receiving this funding do seem to hold some abhorrent and extreme views. It will be interesting to see how they jump through the hoops of state education standards. I wouldn't want my taxpayer dollars going to their funding, but that’s also just part of life in America. There are a lot of things my tax dollars go to that I don't support.

Another area to keep an eye on is if this Supreme Court can start applying this principle of religious nondiscrimination in a consistent way. As Ilya Somin (who supports this ruling) wrote:

"Most egregiously, [the Supreme Court in recent years] upheld President Donald Trump’s “travel ban” policy targeting migrants and refugees from Muslim countries on the theory that nondiscrimination constraints don’t apply to immigration restrictions to the same extent as other policies. But the right way to deal with that inconsistency is to end constitutional double standards in immigration policy, not to allow discriminatory policies elsewhere."

Chief Justice Roberts has said the rule established in this case will only kick in if a state starts sending taxpayer dollars to private schools through vouchers, credits and scholarships. That will still have a huge impact on the majority of states who offer such programs right now — and it's possible some very negative unintended consequences come out of this ruling. States might, for instance, eliminate those programs in order to strictly fund public schools. That could have the very opposite effect of what many who support this ruling want, which is to create more school choice.

At first glance, though, the court’s view of this law as discriminatory makes sense to me and actually seems rather straightforward. The outcome of the ruling is much less clear, but I still believe states will have room to set proper standards for taxpayer-funded education.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: If you were to put together the perfect presidential candidate to WIN, what attributes would you give them? Anything you think is important, could be physical, policies, personality, etc.

— Bill, Wayne, New Jersey

Tangle: Fun question. Statistically speaking, on a superficial level, the answer is pretty simple. Make them white, male, wealthy and probably tall. The better looking, the better. Those are the folks the U.S. electorate has typically gone to.

If I were being more thoughtful about it, I'd say something like this: Race and gender matter less now than they ever have. In the television era, however, height still seems important. They must be either a good orator or very entertaining on television or both. We live in an attention economy, and politics is mostly a popularity contest and a communications competition. Some social science has demonstrated that most people make their minds up about candidates in the first few seconds they see them, and their policies matter far less than we think.

Policies do still matter, though; and that’s where things get trickier. I think in today's current political climate — specifically June of 2022, since things change fast — I'd say the winning formula is: Someone with a strong economics background and a plan for inflation; someone who champions capitalism, but also hammers the super wealthy; someone who resists political correctness but is an "ally" of marginalized groups and expresses great empathy for the poor; someone with a plan to address climate change and the rising cost of health care, but who is an immigration restrictionist and a hawk on China and Russia. Bonus points if they have very moderate abortion views (pro-choice in the first trimester only), are open-minded about marijuana legalization and are calling for gun control reform.

A candidate who has been affiliated with both parties may do well, though it’s possible such a position could backfire. A candidate who is anti-war (or at least opposed to more U.S. foreign intervention) is a must. They should probably have some religious affiliation — being a churchgoer is good — but having extreme religious views that lead to discrimination against LGBTQ people or other religions (like Islam) can get you in trouble.

Basically, if the only goal was to win, I'd try to create a candidate that doesn't really exist.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Yesterday, President Biden officially called on Congress to suspend federal gasoline and diesel taxes until the end of September, saying such a move would be a relief to American consumers. The plan, which is unlikely to make it through Congress, was once criticized by Barack Obama as a "gimmick" and has been met with skepticism from economists. However, Biden says the move would provide temporary relief and buy time to solve the problem in a more holistic way. "By suspending the 18-cent gas tax, federal gas tax for the next 90 days, we can bring down the price of gas and give families just a little bit of relief," he said. "I fully understand that a gas tax holiday alone is not going to fix the problem, but it will provide families some immediate relief, just a little bit of breathing room as we continue working to bring down prices for the long haul." USA Today has the story.


Numbers.

  • 34,576. The number of private schools in the U.S, as of 2019.
  • 4.9 million. The number of students those schools serve.
  • 1.5 million. The number of students enrolled in schools associated with the National Catholic Educational Association.
  • 91,328. The number of traditional public schools in the U.S, as of 2018.
  • 49.4 million. The number of students enrolled in public school in the fall of 2020.

Have a nice day.

The United States' fourth largest city hasn't solved homelessness, but it is making remarkable progress and could soon become an example for how other cities can best approach this national problem. Houston has been dismantling tent encampments that have become a sign of the homelessness crisis in many major cities, but instead of leaving people with no shelter, the city is moving them into one-bedroom apartments — sometimes for a year, sometimes even longer. So far, Houston has moved more than 25,000 homeless people directly into apartments and other housing, and the overwhelming majority have remained housed after two years. The number of people deemed homeless has been cut by 63% since 2011, more than twice the rate of reduction in homelessness of the rest of the nation over the last decade. The New York Times has the story.


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