“As he understands it, this country was founded as a Christian nation. And he stands in a long tradition of conservative white evangelicals, particularly inside the Southern Baptist Convention, who have a distinct understanding of what that means. And this is where evangelical author and activist David Barton comes in.
Johnson has said that Barton’s ideas and teachings have been extremely influential on him, and that is essentially rooting him in this longer tradition of Christian nationalism. Christian nationalism essentially posits the idea that America is founded on God’s laws, and that the Constitution is a reflection of God’s laws. Therefore, any interpretation of the Constitution must align with Christian nationalists’ understanding of God’s laws. Freedom for them means freedom to obey God’s law, not freedom to do what you want. So really, Christian supremacy and a particular type of conservative Christianity is at the heart of Johnson’s understanding of the Constitution and an understanding of our government.”
“The core principles of our nation reflect these biblical truths and biblical principles. He has gone on record saying things like, for him, this biblical worldview means that all authority comes from God and that there are distinct realms of God-ordained authority, and that is the family, the church and the government.
Now, all this authority, of course, is under this broader understanding of God-given authority. So it’s not the right of any parents to decide what’s best for their kids; it’s the right of parents to decide what’s best for their kids in alignment with his understanding of biblical law. Same thing with the church’s role: It is to spread Christianity but also to care for the poor. That’s not the government’s job.
And then the government’s job is to support this understanding of authority and to align the country with God’s laws.”
“one of Johnson’s core principles of American conservatism — as he reiterated them in his speech on Wednesday — is free enterprise. For conservative evangelicals, they don’t really see much of a tension between these”
“The establishment clause provides simply that there can be no law “respecting an establishment of religion.” It does not explain what an “establishment of religion” is. Nor does it lay out in any detail when the government can and cannot provide benefits to a religious institution.
Armed only with this vague text, the Supreme Court has offered several competing explanations for why the establishment clause exists and what it was intended to prevent. At times, the Court has said that it exists to prevent the government from coercing nonbelievers into acts of devotion they find objectionable. At other times, the Court has described the establishment clause as a nod to pluralism — something that allows many religious traditions to thrive in the United States by forbidding the government from taking sides in religious debates.
Everson was rooted in the first of these two rationales, the belief that the government may not coerce others into religious exercise. As Justice Hugo Black wrote in that case, the clause is intended to universalize a Virginia statute, authored by Thomas Jefferson, which provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”
Everson read this prohibition on coerced religious activity expansively to include not just direct use of force against nonbelievers, but also the use of taxes collected from the general public to fund religion. As Black wrote, “individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group.””
“Fifteen years later, in Engel v. Vitale (1962), Black laid out a different theory of why the establishment clause exists.
In Engel, the Court struck down a school district’s policy of requiring teachers to begin each school day by reciting a prayer authored by the school board. “One of the greatest dangers to the freedom of the individual to worship in his own way,” Black warned, “lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.”
The central idea animating Engel was that, if the government is allowed to write prayers or otherwise put its seal of approval on particular religious practices, then US politics will inevitably be consumed by religious believers from competing faiths, all lobbying elected officials to make sure that their religion receives the government’s blessing.
The Court reached this conclusion after considering 16th-century English history, when Parliament approved a Book of Common Prayer that “set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax-supported Church of England.” This led to perpetual lobbying, and frequent strife, over just what prayers the government should endorse and which ones it should reject. Powerful religious groups “struggled among themselves to impress their particular views upon the Government,” while less powerful religious believers literally fled the country — many of them becoming early American colonists.
According to Engel, the First Amendment was drafted in large part to prevent this kind of strife among religious factions from occurring in the United States. The founding generation, Black wrote, was not willing “to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box.”
Thus, while Everson read the establishment clause as a shield against the government coercing nonbelievers into participating in religion, Engel saw it more as a safeguard for pluralism. The idea behind the later decision was that, for multiple faith traditions to coexist peacefully in the United States, the government had to be hyper-cautious about picking favorites among them.
Of course, these two theories of the establishment clause are not mutually exclusive”
” before the Roberts Court started dismantling the establishment clause’s safeguards, the Court recognized two values implicit in this clause: 1) the right to be free from coerced religious activity, and 2) the right to live in a pluralistic society where the government does not favor one person’s religion over the other. The right against coercion extended not just to direct pressure by the state, but also to more subtle forms of pressure such as a public school ceremony that effectively forces a student to choose between participating in a prayer or risking ostracizing themselves from their classmates. Meanwhile, the pluralistic right prevented the government from endorsing a particular religious viewpoint above others.
All of that went by the wayside, however, in Kennedy v. Bremerton School District (2022).”
“Bremerton is a mystifying decision, in part because the six Republican-appointed justices in the majority took great liberties with the case’s facts. It involved a high school football coach who would pray at the 50-yard line following games — in full view of students, players, and spectators, and sometimes surrounded by many of them as he was praying. There are photographs of crowds surrounding this coach as he prayed, some of which were included in Justice Sonia Sotomayor’s dissent.
Yet Justice Neil Gorsuch, who wrote the Court’s opinion, falsely claimed that this coach only wanted to offer a “short, private, personal prayer.””
“while the Bremerton opinion is not a model of clarity, two lessons can be extracted from it. One is that the ban on government endorsements of religion — the mechanism the Court used to ensure that a plurality of faiths would thrive in the United States — is now dead. The other is that, while the Court still recognizes that some forms of government coercion into religious behavior are not allowed, its Republican majority appears eager to narrow the definition of “coercion.” There may even be five votes for Scalia’s position — that the government may actively promote religion so long as it does not use force or the threat of penalty to do so.”
“One form of coercion that the current Court permits is the government may now take taxes from a nonbeliever — taxes that the nonbeliever must pay to avoid criminal sanctions — and use them to fund religious education.”
“Read together, the Roberts Court’s establishment clause cases suggest that the Court probably will not neutralize this clause altogether. But they have already neutralized many of its modern applications, and they appear likely to endorse government behavior that would not have been tolerated even in the recent past.”
“Gorsuch’s opinion presents Kennedy as “engaging in a brief, quiet, personal religious observance.” Sotomayor, who wrote the dissent, writes that this characterization is wrong, and Gorsuch’s description essentially downplays any potential coercive impacts of the prayer:
“To the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts. The record reveals that Kennedy had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. Kennedy consistently invited others to join his prayers and for years led student athletes in prayer at the same time and location. The Court ignores this history”.
Sotomayor’s dissent includes actual embedded photographs of the prayers on the 50-yard line with the coach surrounded by players, showing that this isn’t some quiet personal observance. He sought out media coverage for his prayers. The school district noted that despite Kennedy’s insistence that he wasn’t inviting others to pray with him, he had, in fact, done so on many previous occasions. The school district’s messaging to Kennedy was consistent in that it held no objection to his religious beliefs or even to him praying while on duty as long as it didn’t interfere with his job or suggest that the school endorsed his religion. In short, it seemed as though the school district was genuinely concerned that Kennedy’s behavior would be seen as a violation of the Establishment Clause if they didn’t clearly communicate established limits on what Kennedy was allowed to do.
She notes that Kennedy ignored attempts by the school district to try to come to some accommodation and instead turned to the press and made a big spectacle out of the prayers. Parents told the school district that their children participated in the prayers “solely to avoid separating themselves from the rest of the team.”
Sotomayor sees a constitutional violation in this case, but it’s not Kennedy’s rights that were violated:
“Properly understood, this case is not about the limits on an individual’s ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched. A school district is not required to permit such conduct; in fact, the Establishment Clause prohibits it from doing so.”
“The specific program at issue in Carson is unusual to Maine. About 5,000 students in Maine’s most rural areas, where it is not cost-efficient for the state to operate a public school, receive tuition vouchers that can be used to pay for private education. Maine law provides that these vouchers may only be used at “nonsectarian” schools, not religious ones.
Carson struck down this law excluding religious schools from the Maine voucher program, and that decision could have broad implications far beyond the few thousand students in Maine who benefit from these tuition subsidies.
Not that long ago, the Court required the government to remain neutral on questions of religion — a requirement that flowed from the First Amendment’s command that the government “shall make no law respecting an establishment of religion.” In practice, that meant that the government could neither impose burdens on religious institutions that it didn’t impose on others, nor could it actively subsidize religion.
Carson turns this neutrality rule on its head, holding that government benefit programs that exclude religious institutions engage in “discrimination against religion” that violates the Constitution.
At the same time, however, Carson also contains significant language confining the scope of this new rule. If the government cannot create benefit programs that exclude religion, then under the most extreme version of this argument, it is unclear why traditional public schools — which provide secular but not religious education — are constitutional. Secular public schools, after all, are government institutions that maintain neutrality toward religion. And, under the new rule announced in Carson, neutrality is unconstitutional discrimination.
But Chief Justice John Roberts’s opinion in Carson states explicitly that “Maine may provide a strictly secular education in its public schools.” And it reaffirms the Court’s holding in a 2020 decision that “a State need not subsidize private education.” That means that most students who receive a state-subsidized education will not be indoctrinated into a faith.
Nevertheless, one upshot of the Carson decision is that Maine’s taxpayers will be forced to pay for education that many of them will view as offensive. As the state explained in its brief, the plaintiff families in this case want the state to pay at least part of the tuition at private schools that discriminate against LGBTQ teachers and students. One of these schools allegedly requires teachers to agree that “the Bible says that ‘God recognize[s] homosexuals and other deviants as perverted’” and that “[s]uch deviation from Scriptural standards is grounds for termination.’”
After Tuesday’s decision, these families are all but certain to get their wish — Maine would have to significantly rework its education policies to avoid such an outcome — and Maine’s taxpayers will soon have to fund education at schools with outlandish or even bigoted worldviews.”
“Chief Justice John Roberts wrote for the majority in the case, which split the court cleanly along ideological lines. Roberts said the state’s interest in avoiding concerns about establishment of religion did not justify the policy that effectively blocked parents directing funding to religious schools.
“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Under the Maine “tuitioning” program the court struck down on Tuesday, local governments lacking the population to run schools at a certain grade level typically pay for students to be educated at public or private schools of their choice. But, to avoid government funds being used for religious purposes, since 1981 the program has refused to pay for schools providing religious education.
In a 2020 decision on an educational aid program out of Montana, the Supreme Court ruled 5-4 that states could not exclude families or schools from student aid programs simply because the schools were backed by religious institutions.
However, that decision left open the question of whether states could block the use of their funds for explicitly religious or “sectarian” classes.
But in the case decided Tuesday, Roberts explicitly rejected Maine’ arguments that it was only targeting religious teaching and not whether a school was run by a religious group.
“Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism,” the chief justice wrote.
In what is one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the court seems to have lost all interest in enforcing the Constitution’s prohibition on establishment of religion.
“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second,” Breyer wrote.
Breyer also said the court was opening a Pandora’s box with its decision, suggesting that it was simply a way station to requiring all communities to use taxpayer funds to pay for religious schooling.
“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Breyer wrote.
“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” Breyer asked. “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor warned. “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”
“Forcing American taxpayers to fund private religious education — even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction — erodes the foundation of our democracy and harms students,” NEA President Becky Pringle said in a statement.
A national campaign sponsored by the Education Law Center and Southern Poverty Law Center meanwhile promised to pressure Maine’s legislature into repealing the state tuition program.
Still, the decision’s short-term reach appears to be limited — even if it creates new legal quandaries over the long term.
“Has anything enormous changed? No,” Derek Black, an education and civil rights professor at the University of South Carolina School of Law, said of Tuesday’s decision. “But what we are seeing is that all gray and ambiguous or open questions are being resolved to the benefit of religion.”
In the immediate aftermath, Black said the ruling poses serious challenges for states such as Maine and Vermont that have instituted private school voucher programs that prohibit funds from going to religious schools.”
An Eccentric Tradition: The Paradox of “Western Values” Peter Harrison. 1 17 2018. ABC Religion & Ethics. https://www.abc.net.au/religion/an-eccentric-tradition-the-paradox-of-western-values/10095044 Did Christianity Create Liberalism? Samuel Moyn. 2 9 2015. Boston Review. https://bostonreview.net/books-ideas/samuel-moyn-larry-siedentop-christianity-liberalism-history The Great Subversion: The Scandalous Origins of Human Rights Ronald Osborn. 2015.