While “separation of church and state” is the time-honored manner of describing how to enforce the Establishment Clause, it is no longer subscribed to at all by many conservatives
Maine’s great champion of church-state separation, James G. Blaine. Photo: Corbis via Getty Images As observers tensely awaited potential landmark decisions on abortion and guns, on Tuesday the conservative majority of the U.S. Supreme Court took a big step on another contentious subject. In a 6-3 decision, the Court expanded its new doctrine that ensuring the constitutional “free exercise” of religion is more important than policing the document’s prohibition on the “establishment” of religion.
Roberts argued that 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.
Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.
, as evidenced in January, when Justice Neil Gorsuch referred to “the so-called separation of … church and state” in oral arguments in another case. Indeed, the conservative evangelicals who were once the most adamant defenders of the “wall of separation” now routinely dismiss it and interpret the Establishment Clause as simply prohibiting favoritism toward particular faith communities.
All in all, Carson v. Makin may represent only a measured extension of a new and alarming approach to “religious liberty” that Court conservatives embarked on in the Missouri and Montana cases. But its destination looks pretty radical from a longer perspective. It adds a bit of symbolic weight that the latest case arises from Maine, whose most distinguished statesman was the former U.S. House Speaker, senator, secretary of State, and 1884 Republican presidential nominee James G. Blaine.
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