Supreme Court Justice Sonia Sotomayor criticized the court on Tuesday for continuing “to dismantle the wall of separation between church and state that the Framers fought to build,” adding that she feels “growing concern for where this Court will lead us next.”
The critique came as part of her dissenting opinion in the case of Carson v. Makin. The conservative majority’s ruling will allow government funds to go to religious schools in some instances — including those that bar LGBTQ students — over the objection of the state of Maine.
“Today, the Court leads us to a place where separation of church and state becomes a constitutional violation,” Sotomayor wrote.
In its 6-3 decision, the conservative-leaning court ruled that Maine is required to pay religious schools tuition aid in certain situations. Rural families in the state receive taxpayer funds to send their children to a public or private school of their choosing if they don’t live in an area with a public school.
The state of Maine had argued that religious private schools should not be included in the program, citing the First Amendment among its reasons. But the Supreme Court, led by Chief Justice John Roberts, said that excluding such schools from the public benefit violated protections for the free exercise of religion.
“Nothing in the Constitution requires today’s result,” Sotomayor argued. She called the majority opinion “especially perverse” because the case involves public education.
“As this Court has long recognized, the Establishment Clause requires that public education be secular and neutral as to religion,” Sotomayor wrote.
In addition to being nonsecular, the two institutions involved in the case, Bangor Christian and Temple Academy, have implemented policies allowing them to deny LGBTQ students admission. That means, Sotomayor argued, that “while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds.”
Sotomayor went on to recall her own dissent in a related 2017 case that also chipped away at the barrier between church and state.
“In just a few years, the Court has upended constitutional doctrine, shifting from a rule that permits States to decline to fund religious organizations to one that requires States in many circumstances to subsidize religious indoctrination with taxpayer dollars,” she wrote in Tuesday’s dissent.
Her dissent followed one written by Justice Stephen Breyer, who said that he “fear[s]” the Supreme Court has now “effectively abandon[ed]” a “longstanding doctrine” that gave states leeway in deciding when to allow religious organizations access to taxpayers’ money. Both Sotomayor and Justice Elena Kagan signed on to Breyer’s dissent; Sotomayor made additional points in her own opinion.
In the past, the Supreme Court has emphasized the line between church and state, ruling in 1948 that public schools cannot set aside time for weekly religious teachings. Later cases prohibited other religious activities, like readings from the Bible.
The court has yet to rule on another church-and-state case pending this term, involving a former high school football coach who was fired for praying with the young players after their games. However, the court’s conservative majority appeared poised to side with the coach when the case was argued earlier this year.