Yesterday the U.S. Supreme Court struck down as unconstitutional a Maine statute that excluded parochial schools from participating in a program that made public funds available for students attending private schools.
In other words, if the state of Maine is going to make public funds available for students to attend secular private schools, it can't discriminate. It must make funds equally available for students attending parochial private schools as well.
The dispute in Carson v. Makin centered on Maine's limited school choice program for children in generally sparsely populated areas where public schools are unavailable.
The majority opinion in the 6-3 decision was written by Chief Justice John Roberts, who held that excluding schools that offer religious-based education violates the free exercise (of religion) clause of the First Amendment.
"Maine's 'nonsectarian' requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment," Roberts wrote. "Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise."
CNN legal analyst Jeffrey Toobin, however, believed that the court's decision violated the First Amendment's establishment (of religion) clause.
"The larger subject is, can the government fund religious schools," he told a CNN panel. "Under the Free Exercise Clause, we have parochial schools in this country, and parents can educate their children under any religion they like.
"However, there is also the Establishment Clause of the First Amendment, which said Congress cannot establish a religion. And historically, the court has said if there is government money going to religious institutions, including schools, that is a violation of the Establishment Clause. That idea is breaking down under the conservative majority."
Toobin concluded, "It is a conflict between the Establishment Clause and the Free Exercise Clause, and under this conservative majority, the Free Exercise clause is winning, case after case."
Toobin later predicted that in the future, "All parents get vouchers and they can send their kids to public or parochial schools. 'Separation of church and state' is a vanishing concept at the Supreme Court."
Daily Beast columnist Wajahat Ali turned up the heat just a teensy-weensy bit, by playing "what if?" by bringing up an "imaginary horrible":
"Do Maine taxpayers have to fund a Church of Satan school?" he asked. "I mean based on the Supreme Court ruling the answer would have to be yes, right?"
Perhaps the short answer is yes.
Twitchy managing editor and Independent Women's Forum fellow Samantha Janney had an obvious question of her own:
"Is there a Church of Satan school?"
And that would be an obvious no. And if someone were to start a Church of Satan school, would it ever be accredited by the state? Probably not.
And in the unlikely event that a Church of Satan school received state accreditation, would it attract enough students to make it profitable? That would be another "probably not."
Although the Carson case was interesting and managed to stir up a decent amount of complaining and division, the high court is expected to deliver opinions in some far more controversial cases.
The court released five opinions Tuesday, leaving 13 pending cases yet to be decided — including major cases on:
• Abortion, that may overturn Roe v. Wade;
• The Second Amendment, that could spell the end of states requiring a showing of special need before issuing concealed carry permits; and,
• Affirmative action, that may end the practice of colleges and universities giving admission preferences to certain minorities.
The remaining decisions will be released tomorrow morning, and next week on Monday and Wednesday.
Although yesterday's opinion raised a few hackles and heightened concern among the left, you can expect discordant wailing, the gnashing of teeth, and a flood of liberal tears during the course of the next seven days.
It's gonna be fun.
Michael Dorstewitz is a retired lawyer and has been a frequent contributor to BizPac Review and Liberty Unyielding. He is also a former U.S. Merchant Marine officer and an enthusiastic Second Amendment supporter who can often be found honing his skills at the range. Read Dorstewitz's Reports — More Here.
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