Friday, Dec. 17, 2021 | 2 a.m.
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In the text of the 1786 Virginia Statute for Religious Freedom, written by Thomas Jefferson, Americans can find essential reasoning behind the principle of separation of church and state.
The statute, which would inspire and influence the guarantee of religious liberty that would eventually be included in the First Amendment, affirmed that the right to observe any faith, or not to observe one at all, was a foundational freedom to all Americans.
As such, Jefferson and his like-minded Founding Fathers contended that it was a violation of religious freedom to force taxpayers to support churches or faiths in which they didn’t believe.
They had inherited this thought from more than 100 years of struggles for religious freedom in the colonies, where European settlers relocated themselves to get out from under the state-sponsored churches of their homelands and worship in their own way. During Jefferson’s time, several states still supported an established church, such as the Anglican Church, despite dissent from Presbyterians, Quakers, Baptists, etc.
To use Jefferson’s words, providing public funding for religion — a la the European countries from which the colonists had fled — was “sinful and tyrannical.”
Now, though, an upcoming U.S. Supreme Court ruling relating to religious schools could weaken our nation’s foundational principle of separation between church and state.
Early this month, the court heard arguments in Carson v. Makin, a case in which two families sued to require the state of Maine to pay tuition for children to attend private religious schools in the state.
The conservative-majority judges, in their line of questioning, indicated they were leaning in favor of requiring public funding for tuition.
This is alarming. Until now, when Americans have found themselves wrestling with questions about church-and-state matters, the Supreme Court usually, but not always, was the guardian of separation. Today’s conservative justices, however, appear likely to trash that noble heritage of the court.
If so, this would take the nation a step toward the far right’s dangerous ideal of America being a “Christian nation” — and open the door to all manner of dystopian possibilities.
Think laws banning the practice of certain religions … sanctioned anti-Semitism … government-mandated prayer for a certain religion, or compulsory practice of that religion in schools … adoption of fundamentalist and punitive religious laws and societal codes — an American version of the Taliban ideology … think a dismantling of equal rights for women, minorities, LGBTQ individuals and others deemed less-than by the Christian ruling class.
Those possibilities may seem a long way off. But a decision that favors the schools in the Maine case, along with several other recent rulings that tend to favor litigants who claim their religious rights have been violated, are a growing risk to laws that protect Americans’ equal rights and prevent tax dollars from going toward religious institutions.
“We’re looking at potentially another wrecking ball to the wall of separation between church and state,” Jennifer Pizer, law and policy director for the LGBTQ advocacy organization Lambda Legal, told Time magazine. “The fundamental notion that none of us should be required to pay for other people’s practice of religion is about as basic as it gets, and yet we’re seeing, in these education contexts, that notion flipped on its head.”
As an additional affront, the religious schools in Maine maintain hiring and admission policies barring LGBTQ individuals, meaning a ruling for those schools would mean that taxpayers could be forced to support them despite their discriminatory practices. Maine has a state law barringdiscriminatory organizations from being publicly funded, but it’s not entirely clear how that would apply in this case.
The good news — at least for now, and at least in Nevada — is that such a dangerous ruling in the Maine case wouldn’t directly apply here. In Maine, unlike in Nevada, there’s an unusual tuition voucher program that is intended to ensure that children in sparsely populated areas still receive a free education. That program is at the center of the Supreme Court case, in which attorneys for the parents argue that they should be able to apply the tuition to religious schools as well as secular private schools.
In fact, the parents’ attorneys argue that denying tuition for the religious schools is discrimination based on religion. And unfortunately, several of the conservative justices seemed to accept this contention.
“All they are asking for is equal treatment,” Justice Brett Kavanaugh said, referring to parents who want to use the funds for sectarian schools. “They’re saying, Don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.’ ”
But the 1st U.S. Circuit Court of Appeals, based in Boston, ruled that Maine’s program did not prohibit schools from getting funding based on their religious identity but rather on the “religious use” that the schools would make of the taxpayer-provided tuition dollars. The ruling was correct, and was based on a standard legal distinction in such cases between a religious organization’s identity versus how the funding would be used.
Although it appears unlikely to happen, the Supreme Court should follow this line of thinking.
Before Jefferson died, he left instructions that he wanted to be remembered for three things, one of which was the crafting of the Virginia Statute for Religious Freedom. That’s how important freedom of religion was to him, and how appalling was the notion of the government influencing it or vice versa.
Today, it’s as important as ever to keep government money from becoming entangled with religious beliefs.
