The United States Supreme Court dominated headlines recently when it appeared ready to strike down Roe (or weaken it drastically). That drew our attention away from another case. I want to focus on it.

Carson v. Makin concerns a Maine law prohibiting the state from funding religious use at religious schools on the grounds that doing so would violate the First Amendment’s separation between church and state. Such restrictions do not apply to schools, public or private, that endeavor to uphold the difference between religion and education.  

That appeared to rub the court’s six conservatives the wrong way. They seem ready to minimize the establishment clause of the First Amendment and instead maximize its free exercise clause. That way, the Maine law forbidding funds for one kind of school but not for another kind seems like discrimination against a particular religion. That religion would be a variant of Christianity, as the rural Maine schools in question are not linked to synagogues, temples or mosques. 

If the high court rules in the plaintiff’s favor, Maine taxpayers will be forced to fund religious use even though some of those schools clearly discriminate on the basis of sexual orientation and gender identity. In effect, the court seems ready to compel the underwriting of prejudice in the name of equality. If that happens, we can expect similar cases in states around the country — all in the name of “school choice.”

To understand this moral and legal perversion of the United States Constitution, I got in touch with Christopher Jon Sprigman. In addition to being a contributor to the Editorial Board, Chris is the Murray and Kathleen Bring Professor of Law at New York University and co-director of its Engelberg Center on Innovation Law and Policy. 

Christopher Jon Sprigman: It should be a case in which the establishment Clause plays a substantial role. But it probably won’t. I suspect the court’s right-wing majority will continue to ignore the establishment Clause and blow up the free exercise Clause into a broadly applicable special rights provision. A free ticket for the religious to exempt themselves from federal and state laws – most importantly, public health and anti-discrimination laws.

JS: Do these special rights provisions apply equally? 

CJS: The court is on a mission to remake free-exercise law. Not too long ago, it held that religious people and organizations could not claim special exemptions to generally applicable law so long as that law applies equally to religious and non-religious actors. The court’s right-wing majority has been working to displace that rule with one that presumptively gives religious actors an exemption from state or federal laws if there is any exemption for a secular actor or activity.

JS: So all religions, then?

CJS: Hmmm, I doubt it.

JS: How would they fudge that?

CJS: Some of the religious schools at issue in the Maine case insist on some really bigoted views toward gay people, for example. The Supreme Court seems unbothered by that. But I don’t expect the court’s conservatives are going to welcome state funding of a madrasa that teaches that the US should be governed by sharia law. How are they going to distinguish? Not honestly, but they’ll manage.