Rethinking the “Wall of Separation Between Church and State” Through Carson v. Makin
The Constitution demands a wall of separation between Church and State: No other phrase has so deeply perverted our Nation’s history, ignored our traditions, and denigrated the role that religion plays in promoting the Common Good. Unmoored from its original meaning, this phrase has been transformed into a justification to discriminate against religious adherents, and it has found safe harbor in today’s culture amongst those who would expel religion to the outer edges of society.
An example best illustrates this point: A State, acknowledging how essential educating the next generation is, creates a tuition assistance program to provide a quality and affordable education to all its students. Any student who qualifies can use public funds to attend a public or private school of their choice—so long as that school does not teach religious values. One might ask, what is the reason for singling out and excluding religious schools? The State’s answer is that “a sectarian education is not equivalent to a public education.”[1] Why is it not equivalent? The State candidly responds that religious schools do not comport with the “critical features of a system of public education: diversity, tolerance, and inclusion.”[2] Ironically, the State does not consider inclusion and tolerance of religious views. But instead, because these schools dare promote traditional values—cutting against the cultural hegemony of the day—the State claims it has an interest in not funding the “intolerant” and “discriminatory” views these schools are promoting.[3]
This is the exact scenario being played out in Carson v. Makin.[4] At issue in Carson is a Maine law that prohibits students from using funding from a generally available program to attend “sectarian” schools. Carson is pending before the Supreme Court and asks a straightforward question:
Whether a State violates the Religion Clauses when it excludes students from a generally available aid program because those students would have used their aid to attend a school that provides religious instruction.[5]
The answer to this question is a resounding “Yes.” Maine’s policy is rooted in hostility toward religious adherents and is antithetical to the Free Exercise of religion. The First Circuit approved this discrimination, and upheld Maine’s policy, relying on what is known as the “status vs. use” distinction.[6] This distinction prohibits discrimination against religious institutions because they are religious (status), but allows discrimination against religious institutions because they promote religious values (use). This test has plagued the Court for years, and has proven to be a guise to discriminate against religious adherents.
The notion of a “wall of separation between church and state” has often been invoked as a justification for this sort of discrimination. It has been used to bar religious adherents from equally participating in the community, all the while proclaiming that such discrimination is required by the Constitution. This phrase has been misunderstood and twisted. As this essay will attempt to establish, our Nation’s history and traditions do not condone this hostility. But instead, show a deep respect for religious values as they are woven into the very fabric of our society. Indeed, a proper understanding of the “wall of separation” and its origins makes this point clear. This “wall” was never meant to divide the state from the church. Instead, it was intended to protect the church from the state. Carson therefore presents an opportunity for the Court to continue its re-examination of the Religion Clauses, to abandon the “status vs. use” distinction, and to reclaim first principles.
The Original Sin: Locke v. Davey
Before turning to Carson, it is important to understand the cases that set the stage for where we stand today. In the seminal case of Zelman v. Simmons-Harris the Court upheld—against an Establishment Clause challenge—an Ohio school-voucher program that allowed parents to use state funds to send their children to religious schools. The Court laid down the following principle: “[b]ecause the program ensured that parents were the ones to select religious schools as the best learning environment . . . the circuit between government and religion was broken, and the Establishment clause [is] not implicated.”[7] Simply put, private choice means that the government has not “established” a religion.
Zelman stood only for the proposition that a state can pass a law that incidentally benefits religion without violating the Establishment Clause, and left unturned the other side of the coin; whether a state could bar a benefit on the basis of religion without violating the Free Exercise Clause. Turn to Locke v. Davey, which can be considered the “original sin” in this regard.[8] In Locke, the Court held that the Free Exercise Clause was not violated when a state excluded a student from using generally available funds to receive a religious education. However, Locke expressly limited itself to the funding of clergy, as the student was only barred from using public funds to receive a post-secondary degree in theology. In fact, the student was still allowed to use funds to attend a “pervasively” religious school, and was even allowed to take courses in theology so long as it was not the focus of his degree.[9] Despite its dubious nature, Locke is easily distinguishable, and need not be overturned to reach a favorable ruling in Carson.[10] With that being said, the Court has on multiple occasions whittled away at Locke, leaving doubt as to its longevity. The two cases that follow show this slow walk back.
First, in Trinity Lutheran, the Court addressed a Missouri policy that excluded religious institutions from participating in a generally available program that gave funds to schools to resurface their playgrounds.[11] Because the funds were for a secular purpose (playground resurfacing) the reason for the religious school’s denial was solely because of its status as a religious institution. Missouri defended its policy on the purported interest of achieving a greater separation between church and state. But the Court invalidated the policy, reaffirming that the state interest “in achieving greater separation of church and State . . . is limited by the Free Exercise Clause.”[12] Despite this proclamation, it was a limited win for religious institutions because the Court failed to address whether discrimination based on the religious use of funds would be a Free Exercise violation. The “status vs. use” distinction would appear again a few years later.
Second, Espinoza addressed Montana’s “no-aid” provision, which barred students from using generally available scholarships to attend religious schools.[13] Because the no-aid provision categorically prohibited funding to all religious schools, the Court viewed this as discrimination based on religious status. The State advanced an interest in “more fiercely” promoting the separation between church and state, but the Court again denied this purported interest, proclaiming that the “supreme law of the land condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from the scholarship program here is odious to our Constitution and cannot stand.”[14] Although the Court found the policy to be a violation of the Free Exercise Clause, the majority’s opinion suffered from much of the same flaws as Trinity Lutheran. By continuing the “status vs. use” distinction, the Court again left unanswered whether discrimination based on the religious use of funds could be justified. This exact issue is what has taken center stage in Carson.
Status vs. Use: Discrimination Disguised as Distinction
Turning now to Carson, Maine’s Constitution requires that every school-aged child be allowed to obtain the benefit of a free public education. Because of the rural nature of Maine, not every child lives close enough to a public school. To rectify this issue, the Legislature created a generally available program that allows students unable to attend public schools the ability to use state funds to attend a qualifying private school of their choice. Parents can send their child to a qualifying school anywhere in the country, so long as all minimum educational standards are met.[15] There is one important caveat: to qualify the school must be “nonsectarian.” What is the reason for this specially carved out exclusion? Maine’s policy can be traced back to the erroneous notion of a “wall of separation between church and state.”
Prior to 1980, religious schools in Maine actually received public funds for tuition purposes. This all changed when Maine’s Attorney General issued an opinion that the funding of religious schools would violate the Establishment Clause. In the Attorney General’s view, without barring public funds “there would be no effective means of assuring that the wall of separation between church and state had not been breached.”[16] In response, the Legislature changed the law so that schools must be “nonsectarian . . . in accordance with the First Amendment of the United States Constitution.”[17] This view of the Establishment Clause was wrong then, and it is wrong now. Putting aside the hallmarks of a traditional Establishment,[18] as the Court laid out in Zelman, the Establishment Clause is simply not implicated when private choice is involved. The State implicitly acknowledges that the catalyst for its policy was the Attorney General’s flawed opinion, which is why it had to create a new rationale of ensuring that students receive the “substantive equivalent” of a public education.
Maine pivots to defend its policy on this new basis, arguing that it has a “compelling interest in ensuring that the instruction students receive at . . . private schools is the substantive equivalent of what students would have received if they attended a public school.”[19] This sounds reasonable, until you realize what the State means by a “substantive equivalent.” The State is not referring to the quality of the education a student will receive, how could they, as all qualifying schools must meet minimum educational standards. In fact, under this program a student can attend an elite private school, and by the State’s own admission, this education would be the “substantive equivalent” of what a student would receive at a public school—an admission disconnected from the shambles that is modern public education.[20] This disconnect makes sense, however, when you realize that what the State is really referring to are the “critical features of a system of public education: diversity, tolerance, and inclusion.” These are the “substantive” elements of an education that religious schools lack or—according to the State—are in direct opposition with.
Cue Petitioners: The parents of school aged children, these parents were denied funding not because their proposed schools were unaccredited and fell short of educational standards—they met both of those requirements—but because the State conducted a review of the schools’ curricula and found it to be pervasively sectarian. The State drudged through a litany of specific religious values that Temple Christian and Bangor Christian Schools held and reasoned that these “[s]ectarian schools are not denied funds because of who they are, but because of what they would do with the money—use it to further the religious purposes of inculcation and proselytization.”[21] This government hostility to religious doctrine is what makes Maine’s law so repulsive. The notion that a state can inquire “into the recipient's religious views” and “focus on whether a school is pervasively sectarian is not only unnecessary but also offensive. It is well established . . . that courts should refrain from trolling through a person’s or institution’s religious beliefs.”[22] But troll through is what the State did, and what courts have to do, to effectuate this policy. This alone should prove fatal to both Maine’s law and the “status vs. use” distinction. But it also serves to highlight how “status vs. use” is truly a disguise to discriminate against religious adherents.
Take the State’s treatment of Cardigan Mountain School: Cardigan holds itself out as a non-sectarian institution, but requires mandatory attendance for its students at weekly chapel services. Cardigan uses these services to distill in its students their philosophy of “universal . . . spiritual values.”[23] The State approved Cardigan to participate in its program despite these compulsory chapel services because it viewed the school as promoting general moral values that were not being taught through the lens of faith. This creates a strange, or perhaps purposeful, outcome. Maine does not categorically exclude religious institutions from participating in their program (status). Instead, it is only when those religious schools start teaching religious values, a determination the State makes, that they are excluded (use). Under the “status vs. use” distinction the Universalist school that promotes general moral values is allowed to participate, but the “sectarian” institution that promotes specific moral values is barred.[24] The message is clear—dare promote traditional marriage, the sanctity of life, the view that males and females are distinct and unique individuals, and a host of other beliefs singled out by the State and sincerely held by millions of Americans—and you are no longer fit to equally participate in society. Discrimination is discrimination, however, and “legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[25] This makes sense as Free Exercise “protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.”[26] The Court should bury the “status vs. use” distinction, and move to reclaiming first principles.
Religion, Morality, and Knowledge: May it Forever Be Encouraged
In American constitutional law the concept of a “wall of separation” is most often associated with Thomas Jefferson and his famous Letter to the Danbury Baptists. This letter, sent after ratification, displayed Jefferson’s view that the “legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church [and] State.”[27] This phrase would gain traction with the Court in early Establishment Clause cases, with it making its most notable appearance in Everson v. Board of Education. Everson would mark the first application of the Establishment Clause to the states, and involved a generally available program in New Jersey which reimbursed parents for transportation costs associated with sending their kids to school. At stake was whether the Establishment Clause was violated when parents used this program to get reimbursed for sending their kids to religious schools. The Court held that the funding did not violate the Establishment Clause, while at the same time pronouncing that “the First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”[28] From the start, Everson’s own holding contradicts the very notion of a high and impregnable wall—a paradox noted at the time,[29] and a phrase since denounced by members of the Court.[30] When this phrase is traced back to its true origins this paradox is better understood.
The original conception of a “wall of separation” can more properly be attributed to the founder of Rhode Island, Roger Williams. In Williams’ view:
When they [the church] have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall itself, removed the Candlestick . . . and made His Garden a wilderness as it is this day.[31]
Williams’ idea of a “wall of separation” presents a stark contrast from the modern strict-separationist’s view. Williams saw the state as being the corrupter of the church, whereas the strict-separationist of today views the church as the corrupter of the state. Williams’ view of a hedge of separation was not born out of hostility towards religion, as he himself was a devout minister, but out of a desire to prevent the figurative “Garden of Eden” that was the church from being sullied by the corrupting “wilderness” of politics and the state. Now compare Williams’ rationale for the “wall of separation” with the State’s rationale in Carson. The State focuses primarily on the fact that religious schools hold views that they deem as incompatible with diversity, tolerance, and inclusion. By the State’s own admission these three values are the “critical features of a system of public education.” May I suggest a humble alternative—one that has been venerable since the founding.
The First Congress in the Northwest Ordinance proclaimed that “religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”[32] These are the true pillars of education: Pillars that recognize that for a society to flourish it must both be moral and informed. The founding generation saw religious education for what it was, a substantive means of promoting this moral and informed nation—a means of promoting the Common Good. This modern view that a religious education is inferior to a secular education derives from what Justice Scalia aptly called “a trendy disdain for deep religious convictions” within “modern popular culture.”[33] How else can one put it when the State says that you can go to a school anywhere in the country, it can be public or private, it can even teach some moral values—but you just can’t choose a school that teaches your sincerely held religious faith. Fortunately, as the Court has made clear, this “hostility to aid to pervasively sectarian schools has a shameful pedigree that we do not hesitate to disavow.”[34] And disavow is what the Court should do once again in Carson.
A Wall of Protection
As perhaps best stated in response to the modern interpretation of a wall of separation: “This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.”[35] Tiresome indeed, yet this phrase continues to be distorted, and to be used as a justification for discriminating against religious adherents. Much is therefore at stake in Carson, and it is well past time for the Court to use the “wall” for what it was always meant to do—protect religious institutions and their followers.
Josh Arndt (‘22) is a Juris Doctor candidate at Michigan State University College of Law, and is an Associate Editor on the Michigan State Law Review. Josh is a graduate of Wayne State University, where he received his degree in Business Administration and was a student-athlete on the baseball team. His primary areas of legal interest are in public policy and the revival of the classical legal tradition.
[1] Brief for Respondent at 19, Carson v. Makin (No. 20-1088).
[2] Id. at 18.
[3] Id. at 20.
[4] See Carson as Next Friend of O.C. v. Makin, 141 S. Ct. 2883 (2021).
[5] This case also raises a challenge under the Equal Protection Clause of the Fourteenth Amendment. This essay will focus solely on arguments made under the Religion Clauses.
[6] See Carson as next friend of O.C. v. Makin, 979 F.3d 21 (1st Cir. 2020), cert. granted, 141 S. Ct. 2883, 210 L. Ed. 2d 989 (2021). Of note, retired Supreme Court Justice David Souter was sitting by designation in this case.
[7] Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002).
[8] See Locke v. Davey, 540 U.S. 712 (2004).
[9] See id. at 724–25.
[10] See id. at 727 (Scalia, J. dissenting) (discussing how “[o]ne can concede the Framer’s hostility to funding the clergy specifically, but that says nothing about whether the clergy had to be excluded from benefits the State made available to all”).
[11] See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017).
[12] Id. at 2024 (quoting Widmar v. Vincent, 454 U.S. 263, 276 (1981).
[13] See Espinoza v. Montana Dep’t of Revenue, 140 S. Ct 2246 (2020).
[14] Id. at 2262–63 (cleaned up).
[15] See Brief for Petitioner at 4, Carson v. Makin (No. 20-1088). Under this program parents have sent their children to schools in other states, and can even send their children to schools in other countries if they wish. Id.
[16] Joint Appendix at 61, Carson v. Makin (No. 20-1988).
[17] Me. Rev. Stat. Ann. tit. 20-A § 2951(1), (2), (5).
[18] See Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J. concurring) (noting how “[t]he text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause”).
[19] Brief for Respondents at i, Carson v. Makin (No. 20-1088).
[20] See Oral Argument at 49:54, Carson v. Makin (No. 20-1088), https://www.oyez.org/cases/2021/20-1088.
[21] Brief for Respondent at 22, Carson v. Makin (No. 20-1088) (emphasis added).
[22] Mitchell v. Helms, 530 U.S. 793, 828 (2000).
[23] Stipulated Record Ex. 2, at 17, 24, Carson v. Makin, No. 1:18-CV-00327-DBH (D. Me. Mar. 12, 2019).
[24] See Brief of Professor Michael W. McConnell as Amicus Curiae Supporting Petitioners at 24–27, Carson v. Makin, (No. 20-1088).
[25] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 547 (1993).
[26] Espinoza v. Montana Dep’t of Revenue, 140 S. Ct 2246, 2276 (2020) (Gorsuch, J. concurring) (alterations omitted).
[27] Letter from Thomas Jefferson, to messers Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut (Jan. 1, 1802).
[28] Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 18 (1947) (alterations omitted).
[29] See id. at 29 (Rutledge, J. dissenting) (noting in reference to the “wall of separation” that “New Jersey's statute sustained is the first, if indeed it is not the second breach to be made by this Court's action”).
[30] See Engel v. Vitale, 370 U.S. 421, 445–46 (1962) (Stewart, J. dissenting) (decrying the “uncritical invocation of metaphors like the ‘wall of separation,’ a phrase nowhere to be found in the Constitution”); see also Wallace v. Jaffree, 472 U.S. 38, 107 (1985) (Rehnquist, J. dissenting) (noting that the Court’s precedents “have with embarrassing candor conceded that the ‘wall of separation’ is merely a ‘blurred, indistinct, and variable barrier,’ which ‘is not wholly accurate’ and can only be ‘dimly perceived’”).
[31] Roger Williams, “Mr. Cotton's Letter Lately Printed, Examined and Answered,” The Complete Writings of Roger Williams, Vol. 1, 108 (1644).
[32] Act of Aug. 7, 1789, ch. 8, 1 Stat. 50, 52, n. (a).
[33] Locke v. Davey, 540 U.S. 712, 732 (2004) (Scalia, J. dissenting).
[34] Mitchell v. Helms, 530 U.S. 793, 828 (2000).
[35] A.C.L.U. v. Mercer County, 432 F.3d 624, 638 (6th Cir. 2005).
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