Church, state and school: A riddle for the Supreme Court

In 2004, seeing substantial risk of state sponsorship of religion, the Supreme Court rightly ruled, 6-3, that Washington State could deny scholarship funds intended to assist academically gifted students with postsecondary education expenses to students seeking to pursue devotional theology degrees.

“Given the historic and substantial state interest at issue, we...cannot conclude that the denial of funding for vocational religious instruction alone is inherently constitutionally suspect,” wrote then-Chief Justice William Rehnquist, a conservative.

Last week, the Supreme Court — claiming not to be overturning that just-mentioned decision — ruled, 6-3, that Maine, which directs state funds to private schools selected by parents in districts where there are no public schools (yep, there are some there), has no choice but to also send funds to religious schools in those districts, if and when parents choose them for their children.

“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,” wrote now-Chief Justice John Roberts.

To recap, a state can prevent public funds from subsidizing explicitly religious instruction, except when it can’t.

Where does this elevation of the First Amendment’s free exercise clause over its establishment clause leave core public educational benefits often administered by a broad range of community organizations, like New York City’s Universal Pre-K? When the program was set up in 2014, the city wisely drafted strict regulations ensuring that if religious organizations chose to participate, they would have to do so in a purely secular fashion, never using public funds to indoctrinate children into a particular faith.

Under the just-issued decision, a church, yeshiva or mosque could credibly assert these rules discriminate against religion and claim a First Amendment right to a slice of the public fisc to teach little ones about Jesus, G-d and Allah. Religious charter schools could also credibly claim that denying them a fair shot at public funds violates the Constitution.

Then, Sunday school could become publicly funded on Mondays, Tuesdays, Wednesdays, Thursdays and Fridays too.