Remember when conservatives decried the pre-Trump Supreme Court as an “activist court” because it dared to — gasp! — uphold human rights?
Those same conservatives are oddly quiet now that the U.S. actually does have an “activist” Supreme Court — one that has delighted in overturning decades, sometimes centuries, of precedent and in deliberately misreading the Constitution despite many of its most extreme justices calling themselves “originalists.”
This week saw two radical rulings, with more sure to follow. In Carson v. Makin, the far-right court gleefully took a sledgehammer to the wall that separates church and state. In New York State Rifle & Pistol Association Inc. v. Bruen, the court struck down a New York State law that required applicants to prove a valid need to carry a concealed weapon in order to get a concealed carry permit; it ruled that such a law violated the original intent of the Second Amendment.
For space purposes, we’ll only address Carson v. Makin today.
The issue in question in Carson is a Maine law that allows families to use a state tuition-assistance program to send children to public or private secondary schools of their choice, if that district does not maintain a public school of its own. The program, understandably, excludes religious schools from qualifying for tuition assistance. Because, you know, separation of church and state.
In the twisted logic that is quickly becoming the hallmark of this court, the majority opinion, written by Chief Justice John Roberts, says Maine’s program violates the Free Exercise Clause of the First Amendment (“Congress shall make no law … prohibiting the free exercise [of religion]”) by discriminating against religious families, despite the fact the program’s exemptions are based on the First Amendment’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”).
As Justice Breyer notes in his dissent, the two religion clauses of the First Amendment are often in conflict. For the last 200-plus years, the government has chosen a path of “benevolent neutrality” — it won’t stop you from practicing your religion (in theory) but it also won’t lend any kind of official government support to it either (also in theory), which includes keeping religion out of anything the government pays for.
Until this court, that is. With its decision in Carson v. Makin, the Supreme Court raised its middle finger at the very idea of neutrality.
Since several of the justices joining the majority opinion are self-proclaimed “originalists,” let’s go back to the original meaning of the First Amendment. James Madison, author of the first 10 amendments we know as the Bill of Rights, and Thomas Jefferson argued that no religious activity or endeavor should be supported with taxpayers’ dollars. Jefferson wrote in an 1802 letter that the First Amendment “thus build[s] a wall of separation between Church and State,” echoing Rhode Island’s founder Roger Williams, who wrote there must be a “a wall or hedge of separation” between the “wilderness of the world” and “the garden of the church.”
Since the Supreme Court has already dealt a heavy blow to that wall of separation, we might as well knock it the rest of the way down. If taxpayer dollars are going to be used to support religious enterprises, then religious organizations should have to support secular enterprises — through taxes. Since this court is determined to upend every precedent, it should also revoke churches’ and religious organizations’ tax exemption status.
