Opinion: Supreme Court decision on vouchers for religious schools reinforces faith in the public square
The court ruled parents have the right to choose a religious school as part of a program that provides tuition assistance in rural areas. Americans should recognize that religion in the public square supports the First Amendment
Critics of the Supreme Court’s ruling Tuesday that required Maine to let parents use tuition assistance for religious schools fell back on a tired and familiar chord: It will weaken the separation of church and state, they said.
Harvard law professor Noah Feldman was typical, writing for bloomberglaw.com that it “profoundly undermines existing First Amendment law.”
This simply isn’t true.
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.
Some people would remove religion entirely from the public square. 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.
Research from Pew Research Center has found that 70.9% of Americans identify as Christian, with another 5.9% identifying as belonging to either Jewish or other non-Christian faiths. Certainly, religion remains a defining characteristic that informs their backgrounds, perceptions and worldviews. A free nation should never consider coercing something so important into the shadows.
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.
The law clearly stated that the chosen school was to be one “of the parent’s choice at which the student is accepted.”
Two families, the Carsons of Glenburn, Maine, and the Nelsons of Palermo, Maine, wanted to choose sectarian schools for their children and were denied the privilege.
Until 1981, such a choice had been perfectly acceptable. As the court noted, more than 200 Maine students had chosen to attend religious schools in the 1979-80 school year alone. But Maine’s attorney general at the time decided this violated the First Amendment — a decision subsequently written into law by Maine’s Legislature.
This is unfair, the court ruled.
“Maine has chosen to offer tuition assistance that parents may direct to the public or private schools of their choice,” the majority opinion said. “Maine’s administration of that benefit is subject to the free exercise principles governing any public benefit program — including the prohibition on denying the benefit based on a recipient’s religious exercise.”
Ironically, the modern movement against the funding of religious schools with taxpayer money originated in Maine in 1875, when Rep. James G. Blaine, a Maine congressman who later unsuccessfully ran for president in 1884, sponsored a constitutional amendment that would have written such a prohibition into the supreme law of the land.
Evidence shows he was less concerned with the teaching of religion than with courting the Protestant vote. At the time, a Protestant majority feared the influence of a growing Catholic migrant minority. When Catholics confronted Protestant practices that were woven throughout public schools, they eventually began forming their own religious schools.
The Blaine amendment grew out of this ugly confrontation. It failed, but 37 states ended up adding a version of it in their own constitutions, where they remain today.
Blaine amendments have been used through the years to block any use of public funding, even indirectly through parental choice, for religious schools.
Today, Blaine’s sentiments have morphed into a general antipathy toward religion by some who would banish it from the public square entirely. That era appears now to be ending, and it’s about time.
The First Amendment courts the tensions that are natural in a diverse nation. Free speech and the free exercise of independent religious practices were intended to relieve those tensions and build tolerance.
That cannot happen if religious adherents are forbidden full participation, including the right to compete for the preferences of parents seeking a preferred private school for their children.