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  • Writer's pictureShane Caraway

Carson v Makin: Sotomayor Channels the Ghost of Hugo Black

On Tuesday, the Supreme Court of the United States ruled 6-3 against disallowing parents to choose sectarian options as part of a school voucher program. In the majority decision, Chief Justice John Roberts clarified that “Maine’s ‘nonsectarian’ requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause.” This case was not against the schools, but against the right of parents to voluntarily choose how their allotted educational funds were to be utilized.

The fallout was immediate and spectacular. Dissenting Justice Sonia Sotomayor claimed, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.” This sense of fatalism was quickly adopted in popular media. Writing for Vox, Ian Millhiser decried this decision as “a serious, but not fatal, blow to the wall separating church and state.”

That Justice Sotomayor referenced the separation of Church and State created by the Framers is a point of particular interest. The mythical wall that she alludes to was not erected by the Framers, but by Hugo Black in his majority opinion in Everson v. Board of Education, decided in 1947. This resulted in an anti-religious policy that disallowed reimbursement for any Catholic schools for the cost of student transportation, effectively applying law to the exclusion of sectarian institutions. At the time, Catholic schools comprised 96% of those being utilized by parents to educate their children.

Relevant to this calculus is that Hugo Black was a rabid anti-Catholic Klansmen who delivered numerous incendiary speeches railing against Catholic conspiracies. Black built his Alabama political career delivering Fire-Eater-styled speeches that railed against Catholicism and proclaimed the values of anti-immigrant Nativism. This reality later motivated his distortions of the Establishment Clause in Everson.

Harrowingly, Black’s opinion was cited in the Justice’s dissent in Makin, presumably to reinforce the constitutionality of state discrimination against religious schools. Despite this perversion, Justice Sotomayor first refers to the separation of church and state that the Framers “fought to build.” Not ironically, the Makin decision was a restoration to the Establishment Clause designed by the Framers, not a departure from it. That deviation rests squarely on the shoulders of Justice Hugo Black.

Since Justice Sotomayor references the Framers, it is prudent to refer to their speeches and policies to ascertain a clearer understanding of this church-state separation. The Founders meant to reject any state involvement in creating a religion or establishing a religion that would impress or obligate the participation of American citizens. This clear meaning is evinced in the circumstances surrounding the rise of doctrine, not in the Constitution or Declaration, but a single letter authored by Thomas Jefferson in January of 1802.

This letter was a response to an appeal made by the Danbury Baptist denomination that considered themselves a persecuted minority. They felt that their state constitution should codify their personal religion. In part, they claimed that their religious rights were treated as “favors granted” and not as “inalienable rights.” Critically, they implied that President Jefferson should function as a religious figurehead. In his response, Jefferson popularized the most famous use of that signature phrase, writing: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

As a matter between Man and God, the state could not interfere with the free practice of religion. He reference Article 1 of the Constitution, the same clause cited by Justice Roberts and the only direct mention of religion made in that Founding document. The wall erected by Jefferson protected religion from the state; it did not enable the state to discriminate against religious institutions.

This intent is clarified through an earlier draft of the letter. Omitted from the final version, Jefferson explained that the President was not a religious figurehead and specified that he would not use the Executive office to infringe on religious freedoms. He also described religious exercise as a natural right. In that same letter, he notes that “I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights…” Critically, Jefferson adopted the same position that would later be codified in the Free Exercise Clause, ensuring protections for religion against government intrusion.

Jefferson affirmed this same position in another impactful piece of legislation that same year, the “Virginia Statute for Establishing Religious Freedom.” Considered one of the most eloquent defenses of religion in American history, this law was passed by the Virginia legislature in response to another resolution that attempted to levy a direct tax on citizens for the exclusive purpose of funding “the christian religion, or of some christian church, denomination or communion of christians, or of some form of christian worship.” Jefferson opposed direct taxation for the exclusive purpose of funding a specific religion, a blatant abuse of governmental authority. This resolution would have enabled governmental coercion by forcing citizens to participate in religious institutions.

As a spiritual predecessor to the First Amendment, the 1786 statute reflected protections for religion against government intrusion and discrimination. In part, Jefferson writes that “Almighty God hath created the mind free,” so that “all attempts to influence it” by civil authorities, through financial burdens or legal punishments, only “beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion.” He also notes that all men are fallible, and so no statesmen should assume a “dominion over the faith of others.”

Jefferson also argues that government should not regulate opinion and only protect citizens from “overt acts against peace and good order,” and “that Truth is great, and will prevail if left to herself.” Any state action against free religious practice was an “infringement of natural right.” Violations against religious exercise were synonymous with infringements on speech and thought, an attempt by the state to “regulate opinion,” a strategy redefined as social conditioning in the 20th century.

Like Article 1 of the Constitution and the state-church separation described in his Danbury letter, the great sage of Monticello described protections from government intrusion, not public protections against religion. Applied to the Makin determination, the church-state separation described in the Constitution and throughout Jefferson’s life would protect individuals who choose to send their children to sectarian schools against government obstruction. The state could not mandate sectarian attendance; it also cannot discriminate against the free choice of individuals to attend. Similarly, the state cannot force parents to send their children to a sectarian educational institution, but they also cannot force them to attend nonsectarian schools. Like many related debates, the discussion is drastically altered with the consideration of voluntary choice.

Justice Sotomayor either does not understand or chooses to obfuscate the position of the Framers concerning the separation between religion and the state. Her position is not premised on the original understanding or the clear language of the very Founder cited to support her dissent; instead, her position—shared by Justice Stephen Breyer and Justice Elena Kagan—demands obeisance to the judicial activism of Hugo Black, a man whose political career in the Democratic Party was built on the vitriolic Nativist, anti-Catholic prejudice one expects from a Ku Klux Klan recruiter.

Justice Black would certainly have added his name to the dissent had this case came across his desk.

For further explanation, listen to my podcast where I also discuss the roots of the Establishment Clause.

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