In the movie Star Wars, Darth Vader proclaims, "Luke, I am your Father." Everyone knows that famous line. There is only one problem: Vader never actually said it. It is not in the movie at all.
The same is true with the supposed constitutional "wall of separation between church and state"—everyone "knows" about it, but it does not exist. Instead, the Constitution guarantees the "free exercise of religion" and prohibits congressional "establishment" of religion. Legal debates over the interpretation of those phrases reveal a deeper disagreement about the role of religion in American life. One side views religion as a positive force that the Constitution seeks to protect; the other views religion as a dangerous force that the Constitution aims to constrain.
The dueling opinions in a recent Supreme Court case, Espinoza v. Montana Department of Revenue, exemplify those two views. In Espinoza, the Supreme Court decided that excluding religious schools from a religiously neutral tuition assistance program violates the First Amendment. The Supreme Court, in a majority opinion by Chief Justice Roberts, held that, once a state decides to "subsidize private education...it cannot disqualify some private schools solely because they are religious."
Montana attempted to justify excluding religious schools by claiming that it did so in order to reinforce its purported "wall of separation between church and state." Chief Justice Roberts rejected this argument, noting that the desire to isolate church from the state's purview cannot excuse discriminating against religious Americans. The Court found no historic American tradition requiring states to categorically disqualify religious schools from governmental aid. In fact, at the time of the Founding, state and local governments often affirmatively supported religious schools. According to the chief justice, there is no justification for treating religious Americans like second-class citizens by excluding them from generally available public programs.
Justice Thomas, writing a concurrence for himself and Justice Gorsuch, agreed. He rejected the view that "religion is dangerous and in need of policing." He indicated that court decisions which exclude religious Americans from participating in government programs send a message that religion is disfavored and have "the effect of tilting society in favor of devaluing religion." Returning to a historically accurate understanding of the First Amendment's Establishment Clause, which solely prohibited certain coercive government actions involving religion, would "allow religion to flourish as the Framers intended."
The Espinoza dissenters have a markedly different view, both of the Constitution and of the role of faith in American life. Justice Sotomayor described the Espinoza ruling as "perverse." She suggested that the Constitutions allows governments to "recognize the unique status of religious entities and to single them out on that basis for exclusion from otherwise generally applicable programs." In her view, the government must avoid "fostering religion," even if doing so means discriminating against religious Americans. She complained that allowing religious schools to participate in government aid programs may help parents "outwardly and publicly live out their religious tenets."
Justice Sotomayor never quite explained what makes religion so "unique" that states should be allowed to discriminate against religious Americans solely based on their faith, but Justice Breyer offered some suggestions in his own dissent. He explained that government entities may be justified in discriminating against religious individuals in order to avoid "religiously based discord," "religious...division," and "religiously inspired political conflict."
One must wonder whether Justice Breyer would allow the government to discriminate against any other group in order to avoid division or conflict. Defenders of segregation and Jim Crow argued that the Supreme Court should find those underlying discriminatory laws constitutional because they avoided social upheaval. Would Justice Breyer accept such a despicable argument? The answer is obviously no—this notion that discrimination is permitted in order to avoid conflict exclusively applies to laws that hurt religious Americans.
It is also difficult to understand why this case would raise such concerns. The majority held that government entities must allow religious schools to participate in aid programs on the same terms as secular schools. It did not grant any unique benefit or status to religious schools. Justice Breyer's concerns only make sense if he views religion as so uniquely toxic that it must be quarantined from even benign, non-preferential interactions with the government.
That view of religion contrasts sharply with the majority and concurring opinions. At the very least, the majority viewed religion as a neutral force and interpreted the First Amendment as ensuring that religious Americans could fully participate in American life. Justice Thomas' concurrence viewed religion as a positive force in American life and understood the First Amendment as intending to permit the flourishing of religion.
This is not merely an academic debate; it has a real impact on religious Americans. In his concurrence, Justice Alito recognized that, for some religious parents, a tax credit means the difference between sending their children to a school that will promote their faith and one they see as inculcating "a worldview that is antithetical to what they teach at home."
Justice Alito's insight is particularly true for many Orthodox Jewish Americans, who consider the high cost of religious education a crisis. They view the decision whether to send their children to religious schools as a choice between their financial stability and their children's religious continuity. Simply allowing Jewish schools to participate in generally available government programs on equal footing with their secular counterparts can help alleviate that hardship. These are Americans who pay taxes and contribute to their communities because of, not in spite of, their faith. There is nothing scary, divisive or perverse about holding that the First Amendment prohibits the government from actively discriminating against such religious parents.
People who do not view religion as a threat to be contained should stop parroting myths about walls of separation between church and state. The two religion provisions in the First Amendment—the Establishment Clause and the Free Exercise Clause—work in tandem to ensure that religious Americans can fully participate in American life, free from governmental pressure to abandon their faith. Properly understood, the Constitution serves to include, rather than exclude, religious Americans from our social fabric.
Howard Slugh is an attorney practicing in Washington, D.C. and the co-founder of the Jewish Coalition for Religious Liberty.
The views expressed in this article are the writer's own.
