If the past two years have taught us anything as a society, it is that American schoolchildren should not be held hostage by a public-education monopoly that is unable to keep schools open, safe, competent, or free of indoctrination in left-wing fads and anti-American lies. Many of the parents voting with their feet to take their children out of public schools have an additional urgent interest on their minds: They want their children schooled in their faith, and in the values informed by their faith.
Ideally, public money for education at every level should follow the student, not the institution. The public-education bureaucracy, out of both self-interest and ideological desire to retain its captive audience, has long wielded the establishment clause of the First Amendment against religious parents, demanding that they — and they alone — must choose between the school of their choice and the public support that every other student receives. Using the language of the Burger Court’s much-derided Lemon test, which ventured far from the original understanding of the Bill of Rights, the educrats have argued that it is unconstitutional to have any “entanglement” between government and religious schools. In this telling, substituting a letter by Thomas Jefferson for the actual text of the First Amendment, religious parents and students must be separated from taxpayer money by a “wall of separation” in order to protect the sanctity of the “separation of church and state.”
The Supreme Court, which has been dismantling this framework in a series of decisions in 2002, 2017, and 2020, has now properly and finally interred all of this as extra-constitutional nonsense. A seven-year-old attending the school of her parents’ choosing, in a faith different from her neighbor’s school, is not an establishment of any particular faith; it is the freedom to exercise every faith or none — the state of religious liberty the Constitution contemplates.
As Chief Justice John Roberts wrote in Tuesday’s 6-3 decision in Carson v. Makin, which struck down a Maine law excluding sectarian schools from a tuition-voucher program, “a State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise” so long as the money flows “through the independent choices of private benefit recipients.” Maine should have known this already from the Court’s prior decisions, but some people seem to require a lot of clear repetition before they acknowledge a shift in the law. That includes former justice David Souter, who sat on the lower-court appeals panel and sided with Maine. While the Court’s three current liberals dissented, the other two conspicuously did not join Justice Sonia Sotomayor’s fiery dissent.
The Court, in consigning its 1970s hostility to religion to the ash heap, did not even bother to cite Lemon or the shopworn old rhetoric about “separation.” That left Sotomayor to thunder that the Court “continues to dismantle the wall of separation between church and state that the Framers fought to build” and is “leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” There is a name for that place — America.