There was much gnashing of teeth among liberals this week when the U.S. Supreme Court handed down yet another decision protecting freedom of religion and parental rights in the case of Carson v. Makin. The case concerns the situation in some rural counties in the state of Maine that do not have their own public high schools. It allows those counties to arrange for the education of students who are affected by this situation by either contracting with a neighboring public school or by paying for tuition at a private school of the parents’ choice. But parents who chose a religious rather than a secular private venue for their children to attend got nothing.
Affected parents sued, and ultimately, a 6-3 majority of the court agreed with them that Maine’s law violated their rights. As Chief Justice John Roberts wrote in the majority opinion, states are not required to subsidize religious education. But if they are going to subsidize private schools, they may not discriminate against religious institutions.
But that’s exactly what the left wants to do. And while they may have once supported discrimination against faith because of misguided interpretations of the U.S. Constitution, recently the argument for trying to starve religious schools of the funds they need has become about something else. As leftist ideologues spread toxic theories about race, history, sex and gender in the schools, the need to preserve and grant equality to schools that resist these disastrous trends has become all the more important.
The decision in Carson v. Makin sparked outrage from liberal groups like the Anti-Defamation League, which contributed to a brief on behalf of the losing side in the case and continues to fuel the delusion that allows religion to thrive in the public square will somehow endanger Jews.
In dissent, outraged liberal Justice Sonia Sotomayor claimed that the court, which has steadfastly defended religious liberty in a series of cases over the past two decades, is dismantling “the wall of separation between church and state that the framers fought to build.” Just as angry was retiring Justice Stephen Breyer, who claimed that the sectarian nature of religious schools, including their opposition to fashionable beliefs about “gender, gender identity, sexual orientation and religion,” should render them ineligible for equal treatment.
This is familiar territory for those who have followed the debate about school choice. For decades, advocates of schemes that seek to break the government monopoly on public education and end the discrimination against private religious education have fought against those who continue to uphold the principle of a high “wall of separation.”
The first thing to say about Sotomayor’s comment is that it is fiction. The founders of the American republic made it very clear that while they opposed the establishment of a state religion, they had no desire to drive—as contemporary liberals do—faith out of the public square. With the exception of Thomas Jefferson, who coined the phrase “wall of separation” many years after the Constitution and the Bill of Rights were written and adopted, the notion that they regarded religion as something that had no role to play in public life is a myth. As John Adams wrote: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”
Nor was there any thought then that public education would shun religion. The Bible and religion were staples of public education right up until the aftermath of World War II, when the movement to ban prayer in school began to gain support in the courts.
The ban on public support for religious schools had nothing to do with the founders’ views. It was not until a century later when states began to pass so-called “Blaine amendments”—coincidentally named after a senator from Maine, James G. Blaine—to their own constitutions that prohibited funding for religious schools. The movement that pushed for these measures was motivated by anti-Catholic bigotry as large numbers of immigrants arrived in the country and sought an alternative to public schools that invariably had a Protestant orientation. Supporters of these amendments had no problem with the sort of non-Catholic instruction most public schools retained up until the mid-20th century.
Up until recently, the pendulum had swung very far in the direction of secularism, leading to justified concerns that the Roberts-led court has repeatedly addressed—that the other part of the First Amendment that guaranteed the right of “free exercise” of religion is being violated by an aggressive secularism that sought to drive religious belief into the margins of society.
As Breyer’s dissent makes clear, this argument is no longer solely a function of the debate about church and state. The issue is not merely the nature of the schools but what is being taught in them. With critical race theory indoctrination, ethnic-studies courses that are steeped in intersectionality and ideas about “white privilege,” the use of The New York Times’ fallacious “1619 Project” to teach history and the introduction into compulsory education of new curricula about sexual and gender identity, a new even more urgent element has been added to these debates about school funding and separation.
It’s necessary to understand that what has been happening in education is not just a revolution that has introduced a raft of fashionable, woke concepts. Rather, it’s an effort to grant a set of beliefs rooted in Marxism as nothing less than a secular state religion. Moreover, it is a faith that, like medieval religions of all sorts, tolerates no dissent. The willingness to brand all those who object to the woke catechism as racists and bigots isn’t merely a matter of pique on the part of leftists who are outraged by opposing views. It is characteristic of any true believer when confronted with heretics.
Rabbi Isaac Mayer Wise, a leading figure in 19th-century American Jewry, once referred to public schools as “temples of liberty.” But as many of them adopt these new woke curricula, it’s clear that some have become the opposite of that lofty aspiration.
At a time when liberals are prepared, as Michigan Attorney General Dana Nessel recently quipped, to put “a drag queen in every school” in order to enforce their dogmas and to smear even common-sense rules about keeping sex and gender indoctrination out of classrooms for children from kindergarten to third grade (as was the case with a Florida law mislabeled by left-wingers as “Don’t Say Gay” homophobia), then it’s time to realize just how high the stakes have become in these tussles over schools and support for religious education.
What we need now is not so much to ensure that the separation between religion and state isn’t so high as to burden the free exercise of religion, as some on the left clearly want. Rather, what’s needed is to separate the state from the new secular woke religion on race, sex and gender. These disastrous ideas seek to divide us far more than traditional faiths do. Malevolent forces that have included unions, political activists and politicians have sought to make these toxic concepts compulsory fare for all children. The Supreme Court is rightfully upholding the First Amendment’s defense of our first freedom, the right to religious liberty. Those schools that provide parents with an alternative to this new putative state religion, whether secular or religious, need as much support as we can give them.
Jonathan S. Tobin is editor-in-chief of JNS (Jewish News Syndicate). Follow him on Twitter at: @jonathans_tobin.