In Carson v. Makin, a majority composed of Chief Justice Roberts, along with Justices Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett ruled that it was a violation of the Free Exercise Clause to deny public funds to parents who want to send their children to a religiously-affiliated secondary school. The controversy arose out of Maine, which had a program that provided money to parents who lived in school districts that didn’t have high schools. The taxpayer money was designed to allow these children to obtain the equivalent of a public education by attending private institutions of their choice. However, private sectarian schools were the only schools specifically excluded from the program.
Enter the dissenters. Justice Stephen Breyer penned a disingenuous opinion – joined by Justices Elena Kagan and Sonia Sotomayor – where he tries to gaslight us into thinking that he wants to “honor” religion by making sure he starves religious schools. In a particularly ironic passage, Breyer writes that “In my view, Maine’s [law] is also constitutional because it supports rather than undermines the Religion Clause’s goal of avoiding religious strife.” He then goes on to point out that people from minority faiths will feel annoyed if they think majority religions are being given an unfair advantage.
What Breyer ignores, and what Roberts makes clear, is that the citizens who are barred from using taxpayer money to go to the schools of their choice are the ones being discriminated against. They are equally justified in being upset that the state would penalize them because they choose to go to a religious school as opposed to another sort of private institution. And let’s be clear: this is not about public vs. private. This is about secular vs. religious, two very different things.
Justice Sotomayor wasn’t satisfied with joining his opinion. She had to weigh in with her own words, and they were choice.
In one particularly revelatory passage, where she sounds like Cassandra warning the Trojans about the Greeks hiding in that annoying horse, Sotomayor warns society at large of the evil lurking within the majority opinion: “[I]n just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars.”
You can feel the sneer in “religious indoctrination.” She continues: “Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”
Sotomayor’s is doing what the majority in Plessy did years ago, turn people of faith into second class citizens who don’t have a right to the same benefits that secular folk can claim. It’s really quite repugnant, but not surprising. Of late, Sonia’s been increasingly strident in her attacks on a society that doesn’t agree with her philosophically or politically.
The good news is that her dissent was joined by one person: her. It will not have the impact that Justice Harlan’s dissent in Plessy had, and although I can’t be sure, I suspect that future generations will look at her words as a desperate attempt to keep religion marginalized, behind a wall that exists only in the minds of the prejudiced and intolerant.
Christine Flowers is an attorney and a columnist for the Delaware County Daily Times, and can be reached at email@example.com