US Supreme Court Justice Sonia Sotomayor on Tuesday wrote in a dissent to a ruling by the nine-member court that the state of Maine cannot deny public funds to religious schools, arguing that the wall separating “church and state” is one of the US’ foundational principles.
“There is nothing neutral about Maine’s program,” Chief Justice John Roberts wrote in an opinion joined by five other justices.
“The state pays tuition for certain students at private schools — so long as the schools are not religious,” Roberts wrote. “That is discrimination against religion.”
Photo: Reuters
In her dissent, Sotomayor wrote: “What a difference five years makes.”
“In 2017, I feared that the court was ‘leading us ... to a place where separation of church and state is a constitutional slogan, not a constitutional commitment,’” she wrote. “Today, the court leads us to a place where separation of church and state becomes a constitutional violation.”
“With growing concern for where this Court will lead us next, I respectfully dissent,” she wrote.
Zachary Heiden, chief counsel at the American Civil Liberties Union of Maine, said that the ruling upended two decades of jurisprudence.
“For over 20 years, every court that has heard a challenge to Maine’s law that prohibits public funding of religious education has upheld its constitutionality, but this Supreme Court has rendered a decision completely contrary to the founding principle of separation of church and state,” Heiden said.
Lia Epperson, a law professor at American University who joined an amicus brief in the case in support of Maine, said that the ruling was significant.
“This is the first time the court has explicitly required taxpayers to support something that is a specific religious activity — that is religious instruction,” Epperson said.
Steven Schwinn, a law professor at the University of Illinois Chicago, said that the decision was the latest by the Roberts court “on a long trajectory of expanding the roles of religion in public life.”
“The court has not changed the underlying law,” Schwinn said. “It hasn’t gone so far as to overrule prior cases and yet it nevertheless has moved inexorably in the direction of not only inviting religion more into public life, but really mandating religion more into public life.”
“It’s done that incrementally,” he said. “You can agree or disagree with the direction the court is taking, it seems to me, but that the court is taking a direction is undeniable.”
“If there was any question before there’s quite clearly a majority in favor of religion now,” Schwinn said.
Epperson agreed.
“We do have an increasingly religious and conservative court,” she said. “You will see that reflected in the decisions.”
“This is the most Catholic the Supreme Court has ever been in its history in terms of the justices,” she said.
Six of the nine justices are Catholic — Roberts, Clarence Thomas, Samuel Alito, Sotomayor, Brett Kavanaugh and Amy Coney Barrett.
Justices Elena Kagan and Stephen Breyer are Jewish, while Justice Neil Gorsuch is Episcopalian.
Ketanji Brown Jackson, who is to replace the retiring Breyer next term, is Protestant.
According to a Gallup survey, 22 percent of the US’ adult population identifies as Catholic and 45 percent as non-Catholic Christians.
Two percent identify as Jewish and 21 percent say they have no formal religious identity.
Kevin Welner, a professor specializing in educational policy and law at the University of Colorado Boulder, said that the Maine ruling could have some potential pitfalls.
“The example here is: Do we really want our government deciding which asserted religious beliefs are geniune?” he said.
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