S3, Ep. 20: Forcing states to fund religion: Carson v. Makin decision

Respecting Religion

Does the Constitution require our government to fund religion? In a landmark ruling, the Supreme Court says, for the first time, that if a state has a program that includes funding for private schools it must also provide funding for religious schools. In this episode, Amanda and Holly examine the Carson v. Makin decision, which shows how the Supreme Court is shifting further and further away from the Establishment Clause’s protections of religious liberty for all. They explore the Court’s “bait and switch” to make this radical shift seem not so bad, and they look at all of the reasons the Framers thought it was smart to avoid government funding of religion. In segment three, Amanda and Holly review the latest misleading headlines that conflate “religious liberty” with a promotion of free exercise rights at the expense of Establishment Clause protections.

SHOW NOTES Segment 1: A radical shift in religious liberty law (starting at 03:50)

You can contact Amanda and Holly with your thoughts on the show by writing to [e-mail].

Amanda Tweeted her reaction to the Dobbs decision on Friday, June 24. You can see her Tweet thread here.

Holly and Amanda recorded this episode before the Court released its opinion in the Kennedy v. Bremerton case on June 27, 2022. They will analyze that case in the next episode of Respecting Religion.

Access BJC’s resources on Carson v. Makin at BJConline.org/CarsonvMakin, including the brief we joined, Holly’s article for our winter magazine, and our statement on decision day.

Read the Supreme Court decision in Carson v. Makin at this link.

We mentioned the two recent cases that led to this case:

• Trinity Lutheran v. Comer: BJConline.org/TrinityLutheran
• Espinoza v. Montana Department of Revenue: BJConline.org/Espinoza

Segment 2: Where’s the Establishment Clause? (starting at 19:18)

Holly and Amanda mentioned these cases when discussing how the Court abandoned the “play in the joints” principle in religious freedom law and the impact of this case in state funding of religious schools:

• Locke v. Davey (2004)
• Zelman v. Simmons-Harris (2002)

Amanda quoted from the Virginia Statute for Religious Freedom, written by Thomas Jefferson.

Holly quoted from Memorial and Remonstrance against Religious Assessments, written by James Madison.

Segment #3: More misleading headlines (starting at 33:02)

Amanda and Holly discussed this New York Times newsletter written by Ian Prasad Philbrick: A Pro-Religion Court. It also links to a piece by Adam Liptak with some misleading shorthand, titled Supreme Court Rejects Maine’s Ban on Aid to Religious Schools.

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