Tuesday, the U.S. Supreme Court held that Maine’s exclusion of faith-based schools from a tuition-assistance program for students in rural school districts violates the First Amendment’s free exercise clause. The reason why is clear: “The State pays tuition for certain students at private schools — so long as the schools are not religious.”
Critics, including the dissenting justices, erupted in protest. Justice Sonia Sotomayor complained that the “Court continues to dismantle the wall of separation between church and state.” Justice Stephen Breyer predicted an increased “potential for religious strife.” Left-leaning commentators warned that the ruling might require states to operate religious schools.
Not true. This decision, in Carson vs. Makin, is the third decision in five years to invalidate the exclusion of religious schools from public-benefit programs. The opinion breaks no new doctrinal ground, but instead represents a straightforward application of what the majority calls the “unremarkable principle” that a “State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.”
Nicole Stelle Garnett is the John P. Murphy Foundation professor of law at University of Notre Dame and an adjunct fellow at the Manhattan Institute.
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