In an extremely important church-and-state decision, the Supreme Court has held that if the state of Maine decides to pay for a child’s private education in lieu of a public one, it must allow its tuition money to be used at religious schools. The 6-3 decision, Carson v. Makin, profoundly undermines existing First Amendment law.
It represents the end of the centuries-old constitutional ban on direct state aid to the teaching of religion. And remarkably, it does all this in the name of religious liberty, giving the free-exercise clause of the First Amendment primacy over the establishment clause found in the exact same amendment.
The framers’ conception of the two religion clauses of the First Amendment had two parts that fit together. The establishment clause meant the government couldn’t make you perform a religious act or spend taxpayer dollars on religion. The free exercise clause said the government couldn’t stop you from performing a religious act, understood as prayer or preaching or teaching or belief. (I wrote a book and several articles supporting this understanding of the history.)
