The US Supreme Court seems not only content to erase unenumerated constitutional rights it has recognized for decades, like the privacy right upon which the imperiled precedent of Roe v. Wade is grounded. The court’s conservative justices are also more than willing to ignore the plain language of the Constitution itself when they see fit.
On Tuesday, they did so in a ruling that essentially uses one part of the First Amendment to override another — all in the name of expanding religious freedom protections far beyond the limits envisioned by the document’s drafters.
In this case, it was done in a ruling that will require the state of Maine to allow parents to use taxpayer dollars to send their kids to religious school. Remember that separation between church and state? Apparently the court doesn’t.
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Justice Stephen Breyer, who dissented along with the two other Democratic-appointed justices, decried the ruling in the strongest of terms.
“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion,’ ” Breyer wrote. “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.”
Justice Sonia Sotomayor, in her own dissent, made it plainer.
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor wrote.
But we saw this coming, as Chief Justice John Roberts himself wrote in the ruling against Maine officials. The case involves a state program that gives parents in far-flung parts of the state with no public school options taxpayer-funded tuition aid to send their children to private school. But it prohibits such funds to be used for religious institutions because that would, Maine argued, violate the Establishment Clause.
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Roberts reasoned otherwise. “[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 for the 6-3 majority. But he went further.
“The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” Roberts wrote.
It’s only the latest nail in the coffin of the Establishment Clause, a crucial priority of the Founders, who sought to avoid the state-sponsored religion of the nation from which it broke.
Roberts noted the step-by-step approach the court has taken in recent years chipping away at the Establishment Clause in cases brought by those seeking to greatly expand religious exercise claims. First, the court struck down a Missouri rule barring religious organizations from seeking state-funded aid to resurface playgrounds. Then it nullified a Montana rule that excluded religious schools from a scholarship tax-credit benefit. In both cases, the states sought to create a wall between church and state, and in both cases the Supreme Court knocked it down.
Under Roberts’s reasoning, in the court’s view, just about any rule seeking to put distance between government sponsored activities and religion can be deemed to run afoul of the Constitution. And religious rights groups are counting on that.
Based on the court’s recent ruling against the City of Boston, which denied a permit request from a group to fly a “Christian flag” on City Hall Plaza, religious groups are now taking legal aim at rainbow flags being raised in municipalities for Pride month, claiming that the cities’ embrace of LGBTQ rights somehow run afoul of religious freedoms. It’s working — some cities are dropping their Pride flags for fear of a constitutional challenge.
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Liberty Counsel, the religious legal organization that represented the plaintiffs in the Boston case, blasted a press release suggesting that the Pride flag being flown in La Mesa, Calif., “seems to be ignoring the Supreme Court ruling and setting up that city for a potential lawsuit that could be very costly.”
This isn’t the first time the court has ignored words in constitutional amendments when such blindness has suited them. In the case creating an individual right to possess handguns in the home, the court dramatically broadened the reach of the Second Amendment while wholly ignoring the part about “[a] well regulated Militia.” If the court expands that right to outside the home, as it is expected to do any day now, it will be hard to understand what force the words “well regulated” still hold.
But the court doesn’t seem to be letting the Founders words get in the way of their desired result.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
