The church-state divide, never a wall, isn’t about to fall

On Jun 29, 2022

(RNS) — Lamentations resounded last week when, in a 6-3 decision written by Chief Justice John Roberts, the U.S. Supreme Court ruled that a school voucher program in Maine violates the Bill of Rights’ “free exercise” clause because it excludes schools that require religious instruction.

The case, Carson v. Makin, concerns Maine’s “Town Tuitioning Program,” which offers tuition assistance for rural students whose towns cannot support a public school. Rural families may send their children instead to private schools of their choice, provided that the school is “nonsectarian … in accordance with the First Amendment of the United States Constitution.”

In response to a suit brought by Christian parents, the high court, overturning several lower court rulings, ruled that the First Amendment, which not only forbids governmental establishment of religion but also protects the practice of religion, renders the Maine program unconstitutional, as its exclusion of religious schools itself, the court held, constituted “discrimination against religion.”

Among the lamenters of the decision was Geoffrey T. Blackwell of American Atheists, who said, “With this decision, the Supreme Court has betrayed our nation’s founding principle that the government should not fund religion.”

The group’s president, Nick Fish, joined in denouncing the decision. “Extremists are weakening our democracy,” he proclaimed, warning that the court was attempting to “establish what can only be described as a theocracy.”

It wasn’t only atheist advocates who objected to the decision. One of the dissenting justices, Sonia Sotomayor, contended that the majority decision “leads us to a place where separation of church and state becomes a constitutional violation.”

“The Court,” she contended, “continues to dismantle the wall of separation between church and state the Framers sought to build.”

But that wall, as popular as its image may be, is something of a myth. Venerating it as an unbreakable barrier might be characterized as a faith of sorts in itself.

The church-state “wall” is something closer to a fence, keeping wild animals out but allowing the free flow of air.

In the 1971 ruling in Lemon v. Kurtzman, the court determined that a Pennsylvania state policy of reimbursing the salaries of teachers of secular subjects in private religious schools violated the establishment clause, but admitted nonetheless that its holdings “do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.”

It wrote further that “the line of separation, far from being a ‘wall,’ is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.”

To be sure, the First Amendment disallows government promotion of religion. But, as the court noted then, a degree of inadvertent government-religion intertwinement is inevitable in a pluralistic society. Unless religious Americans are to be deprived of rights and opportunities afforded other Americans, that intertwinement is entirely proper.

As the majority put it in the Maine case: “A State’s antiestablishment (of religion) interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

“Conditioning the availability of benefits” on a school’s nonreligious character, the majority wrote, “effectively penalizes the free exercise of religion.”

That the decision was born of a program in Maine was truly ironic, since it was a Maine representative, James Blaine, who in 1875, in an atmosphere of anti-Catholic sentiment, sought a constitutional amendment to deny any government aid to any “sectarian” school. While his quest failed, some 37 states subsequently added such restrictions to their constitutions, popularly known as “Blaine amendments.”

The recent decision would seem to leave those measures vulnerable to challenge.

In any event, it is clear that, as my colleague and head of Agudath Israel’s Washington Office Rabbi Abba Cohen noted in his reaction to the decision, “Other states that have ‘no aid’ provisions in their state constitutions and law can effectively feel free to now enact programs that encourage or provide assistance to religious schools on an equal basis with other nonpublic schools.”

With all due respect to American Atheists and the dissenting justices, the sky isn’t falling. And the wall isn’t crumbling.

It just wasn’t a wall to begin with.

(Rabbi Avi Shafran serves as director of public affairs for Agudath Israel of America, a national Orthodox Jewish organization. The views expressed in this commentary do not necessarily reflect those of Religion News Service.)

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