Neutral Favor

In my message last week, I asked the question, what are schools for? This week, after a major Supreme Court decision requiring states to pay for students’ tuition at religious schools in some instances, the question continues to remain relevant. Not only are schools places where kids learn and provide childcare for parents so they can work; they are also battlegrounds for ideological conflict. 

The Supreme Court case, Carson v. Makin, centered on a program for rural students in Maine. In places where there are no local public schools, the state would pay the tuition for these students to attend private schools but refused to include religious schools in the list of approved institutions. The court ruled that this was discriminatory and violated the Free Exercise Clause of the First Amendment to the Constitution, which states that the government cannot restrict the ability of people to practice their religion. 

The dilemma in this case is that there is another part of the First Amendment, the Establishment Clause, which prevents government from making one faith the official religion of the state. Those in favor of the court’s ruling this week argue that state funding of religious schools would not violate the Establishment Clause as long as the program is neutral. Any religious school (Jewish, Christian, or Muslim) must have equal access to the funding. The state would not be favoring any religion over another, but rather favoring religion in general. 

In fact, Nathan Diament and Maury Litwack argue that the recent Supreme Court decision is merely one more step in a shift in opinion about the Establishment Clause, moving away from the idea that it requires the state to “disfavor” religion to the idea that it must remain “neutral” toward religion. This is undoubtedly a major change with important implications. While in the past governments were allowed to provide limited funding for religious schools, now the precedent has been set to require governments to fund these schools in certain circumstances. 

Those who oppose this ruling object to the idea that their tax dollars should be used to support religious instruction that they do not believe in, and they fear the further entanglement of religion and state. But there are other implications to this new expansive understanding of the First Amendment. The court seems more willing to protect religious institutions and religious people in government spheres. Where will that lead next? 

As I have written in the past, it seems to me that there is an argument to be made that a ban on abortion would be a violation of the Free Exercise Clause since Jews believe that in certain circumstances an abortion must be performed. There now is just such a case challenging a sweeping abortion ban set to take effect in Florida on July 1. The lawsuit was brought by a synagogue and argues that the law violates the freedom of religion of Jewish Floridians. Will the case make it to the Supreme Court, and will the justices be willing to remain expansive in their view of the First Amendment? It’s too early to tell. 

There is a balance in America’s approach to religion between a concern for keeping a separation between government and faith on the one side and ensuring that religion can thrive in this country on the other. In past eras the court tried to keep the wall of separation high between church and state. Today, it seems that the court is searching for ways to support religion as long as it does not favor one kind over another. The next frontier may just be in challenging how far the court is willing to go in this new environment to protect the religious views of a minority. 

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s