Average Joe SCOTUS: Carson v. Makin

So let’s talk about the first amendment, y’all. The beginning of that baby goes like this, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It goes on to talk about free speech and shit, but that’s basically what it says on religion.

You know what it doesn’t say? “Separation of church and state.”

So where did the “separation” phrase come from? Well, it turns out, in 1802, one Thomas Jefferson wrote a letter to a church group, describing the first amendment saying religion was:

A matter which lies solely between Man & his God.

He went on to write:

I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.

Thomas Jefferson

So, why the history lesson instead of some SCOTUS shit? I’m getting to that.

Since then, SCOTUS has often interpreted the first amendment via precedent, to mean what Jefferson wrote. So while the amendment says “congress shall make no law,” on numerous occasions, SCOTUS has ruled against religious involvement in government, even when it has nothing to do with congress making a law, honoring what Jefferson considered the intent of the first amendment, to create a wall of separation between church and state.

While I’m agnostic-atheist, and agree with the philosophy of their decision, one should still note, what the constitution actually says, as justices like the late Antonin Scalia, and his still sitting counterpart Clarence Thomas largely believe it wasn’t SCOTUS’ fucking business to think about what the writers of the text meant when they wrote it, but that their job was to be strict textualists, and interpret the constitution as written. What Scalia called a “Dead document.

They fairly argue(d) that there was an amendment process set forth in the constitution. So if the populace doesn’t like the fucking text, Congress can endeavor to amend that shit. If they’re successful, then SCOTUS will rule and review based on the new amended text.

U.S. Supreme Court Justice Antonin Scalia

So this case, centers around this debate, in my estimation. You see, in Maine, kids are guaranteed a free education, which is to be administrated by a Maine government agency known as School Administrative Units (SAUs). If an area doesn’t have schools of its own, the SAU for that area is to pay to send those rugrats to an approved school in the area.

In order to be approved, the school has to meet certain standards. One of which, was that it be secular. Meaning, they can’t be in there shoving God up these kids asses. This is based on the “Separation of church and state” philosophy which SCOTUS has several precedents aligned with.

Here’s the rub, the text says, “congress shall make no law…” So this is a bit of a quagmire. Because if a religious school is prohibited by law from getting government funds and/or approval status, one could colorfully argue it’s kinda a law prohibiting free expression.

Anyway, a handful of bible-thumping parents live in some no-school-having shit district in Maine, and want to send their kids to Jesus Christ University. Since Maine law is like, “that’s fine, but you’re paying for that shit yourself, the parents were like, “Fuck y…I mean bless you, you wonderful heathens. We shall see thine ass in court.”

Counsel Michael Bindas

Early in the arguments, counsel for the petitioner (the bible thumpers), Michael Bindas made a clever argument:

This program does not fund schools. And if religious schools were allowed to participate, it does not fund schools.

It funds families. And not a penny can go to any school but for the genuine private choice of individuals.

His argument being, it isn’t that government funds are paying an institution to teach religion. It’s paying families to educate their kids. Those families can use those funds for the school of their choice, so long as they’re teaching the basic requirements expected of a public school. Allowing said parents the “free exercise” of their religion.

While inventive, I can’t help but wonder what requirements public schools have for teaching science, such as evolution by natural selection, and whether these schools are compliant with that? But I suppose, my atheist views are tiresome to these folks.

A panel for Maine, including retired SCOTUS justice David Souter, argued that they’re not excluding the school solely because of their religious backing, but because they’re teaching religion. That if their curriculum were secular, and they left the religious shit to the church, nobody would give a fuck.

Justice David Souter

The opponents are like, “Cute distinction, bro. But there’s nothing in the constitution supporting that logic.”

But Maine was like, “Listen you Jesus freaks. All we’re saying is, if we’re paying for your schooling, it should be consistent with all the other public schools in Maine, so all these kids in Maine get the same basic education. But because y’all are Jesus’ biggest fans, we know you’re not teaching shit like evolution, for instance, because you guys suck at science.”

They argued, “If these assholes lived in a real fucking city in Maine with real schools, they’d get a real education. Not this “creationism” bullshit you’re surely pushing on your poor kids. So if we’re going to fucking pay for it, we expect them to get the same quality education they’d get at a public school which teaches real science. Capiche?”

Justice Kavanaugh hit home the crux of the petitioner’s argument with this question to the respondent (Maine):

Brett M. Kavanaugh

I just want to follow up on that question from Justice Gorsuch. I think it’s important on this public discord or strife issue to emphasize that, as I understand it, they are seeking equal treatment, not special treatment. They’re saying “don’t treat me worse because I want to send my children to a religious school rather than a secular school. Treat me the same as the secular parent next door.”

I think that’s what they’re asking for, is equal treatment. Special treatment cases are where you’re asking for an exemption from generally applicable law.

That’s the Smith kind of cases. Those are hard cases.

But, here, I think all they’re asking for is equal treatment. And the question then becomes public discord from equal treatment. To follow up on Justice Gorsuch’s question, how should we think about that?

Malcolm L. Stewart

I mean, they are certainly characterizing what they are asking for as equal treatment.

But Maine’s view and our view is they are seeking a benefit different from the one that Maine is willing to provide. Maine is willing to provide a secular education, an education that is the rough analog to what the public school would give you at state expense.

It’s not willing to pay for religious inculcation. And so it’s like a case where the school that doesn’t believe in athletics says, I’m being treated unequally because you are willing to fund a thing that is important to some other schools but not to me. That’s not the kind of equal treatment that either the Free Speech Clause or the Free Exercise Clause would prohibit.

The federal government and the National Association of School Boards both filed briefs supporting Maine as well.

Some cases are really complicated, and frankly take me a long time to even make sense of what the fuck they’re arguing over. Usually some stupid procedural bullshit SCOTUS seems to love, because they’re law nerds or whatever. But this one? Pretty fucking simple, yeah?

In a predictable outcome with the now largely religious conservative majority, a partisan 6:3 decision went to the Jesus freaks. I guess the text trumps everything else. Justice John Roberts argued in his majority opinion that if Maine doesn’t like it, they can build some public fucking schools in that area.

The majority’s reasoning is that Maine’s law violated the “free expression” clause for the parents, who want to teach their kids about the ten commandments.

In dissent, the court’s left-leaning justices basically said, “you fucking conservative assholes are so worried about the “free expression” clause, you don’t seem to give two fucks about the “establishment” clause. If the government pays for these kids to go to these schools, government is fucking establishing religious values in these kids.

While I’m not the tenth SCOTUS justice, it is my firm opinion, if Maine had wanted to win this case, it should have gotten some parents who wanted to send their kid to a Muslim school and get government to pay for it, to join these Christians. I’ve little doubt, the majority would have thought much harder about Maine’s argument if they were about to support the teachings of Allah.

You can read about the case and hear oral arguments here at Oyez, and here at SCOTUSBlog.


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