The Supreme Court is About to Take a Wrecking Ball to the Separation of Church and State
PLUS: A review of "Music Box: Listening to Kenny G"
Conservative Christians who have been following the Supreme Court have much to rejoice this holiday season. Two weeks ago, the Court’s conservative majority signaled their intention to scrap Roe v. Wade. And just last week, in the case Carson v. Makin, the Court delivered another present by reiterating their willingness to take a wrecking ball to the wall separating church and state.
Maine has a unique law that applies to the fewer than 5,000 students who live in sparsely-populated, rural school districts where it is too expensive to operate high schools. The state provides these students with a subsidy to defray tuition at a private school of their choice. (You may ask why Maine wouldn’t simply allow these 5,000 students to enroll in any public school of their choice and do away with the private school option. I don’t know why, but my guess is there must be some sort of practical consideration they’re taking into account related to something like travel or boarding.) The catch, though, is that the private school must provide the rough equivalent of a public-school education, which, according to guidelines set by the state, means the private school must be nonsectarian to qualify. (The private school can be affiliated with a church so long as the school does not teach dogma.) If a student wants to attend a sectarian private school, their family would have to pay tuition there out of their own pocket.
Two Maine families that qualified for the voucher want to send their children to private religious schools Maine ruled were ineligible to receive the voucher given their sectarian curriculum. The families claim the state of Maine is discriminating against them based on their faith by denying them the opportunity to attend the private school of their choice.
Carson v. Makin is similar to a case the Court decided last year called Espinoza v. Montana Department of Revenue. At issue in that case was a Montana law that established a scholarship fund private-school students could tap into for tuition. A provision of the Montana Constitution, however, forbade public money from being used to fund religious education, so the state’s Department of Revenue did not allow religious schools to receive scholarship money. After the parent of a private religious school student sued to gain access to the fund, the Montana Supreme Court declared the entire law unconstitutional since the state could not guarantee that even some of the money wouldn’t somehow flow to religious schools. In a 5-4 decision, the U.S. Supreme Court overruled the Montana Court, asserting the law unfairly discriminated against religious schools and people of faith. As Chief Justice John Roberts wrote
A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.
(It’s unclear to me why the Supreme Court felt compelled to reinstate a law the Montana Supreme Court had thrown out in toto. A law that is said to favor sectarian schools over religious schools can’t actively discriminate if the law does not exist.)
Carson and Espinoza are the descendants of the 2002 case Zelman v. Simmons-Harris, which found that parents of children in failing public schools in Cleveland could use the city’s publicly-funded school voucher program to pay for tuition at both religious and non-religious private schools so long as such programs met certain criteria (i.e., there are non-religious options available, the program addresses a non-secular purpose, etc.) Zelman was a significant deviation from Everson v. Board of Education, a landmark First Amendment case concerning the Establishment Clause from 1947 that stated
No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion….In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’…That wall must be kept high and impregnable.
The interesting thing about Everson is the Court split in that case 5-4 even though the dissenting justices agreed with the majority’s characterization of the First Amendment as a “wall of separation” between church and state. They only disagreed about whether the state of New Jersey had breached that wall by using public money to cover parochial schools’ transportation costs. When it comes to matters of church and state today, though, the Court is clearly drifting away from Everson.
What’s changed over the past seventy-five years is the sense among the Court’s more conservative justices that “religious neutrality”—the idea that the state should neither advantage nor disadvantage religion—often amounts to religious discrimination since that leads the state to favor secular justifications, means, and ends for policy over religious justifications, means, and ends. The concept of religious neutrality took root in the United States against the backdrop of a religiously diverse society consisting of many faiths, sects, and denominations. Religious neutrality is supposed to ensure the state does not favor one religious group over another (i.e., Christians over Muslims, Protestants over Catholics, Presbyterians over Jehovah’s Witnesses, etc.,) or single a particular religious group out for discrimination. To achieve this, the state has tried to keep its hands out of religious affairs as much as possible and avoid the appearance of religious preference. To achieve this latter end, government often employs secular language and reasoning stripped of religious overtones to justify its actions.
Over the past few decades, however, many conservatives and religiously-devout Americans have argued religious neutrality discriminates against the religious in general by privileging secular viewpoints over religious ones. The main issue as they see it isn’t really a matter of the government trying to remain neutral in matters of religion by neither favoring nor disfavoring one religious group over another, but rather the government unfairly dismissing religious groups or individuals who claim to be motivated by faith. They find this deeply troubling as it effectively marginalizes many Americans on account of their most deeply held beliefs or their identification as religious Americans. The irony, conservatives would argue, is that Everson and religious neutrality don’t protect religion so much as denigrate it. One might even go so far as to say public life in America, despite claims of being “religion-blind,” is systemically biased against the religious and structured in a way that disadvantages the faithful. Who knew Christian conservatives were so woke?
To understand this critique of religious neutrality, it may help to draw a parallel with another First Amendment principle, freedom of speech. If the government is hosting a forum on an issue and inviting the public to comment, anyone should be allowed to speak, including those who would express religious sentiments. The government shouldn’t silence that person because their opinions on that issue cite God rather than science, statistics, or some secular moral philosophy. (For liberals uncomfortable with the idea of God-talk in the public space, remember that one of the pillars of modern American liberalism was a profoundly religious man who often cited religious principles to justify his civic program. His religious community remains a cornerstone of the Democratic Party.)
The difference with the Maine case, however, is that it doesn’t simply involve speaking during an open forum but rather the dispersal of public funds. If the families in the case got their way, taxpayer money would be used to fund religious education. That doesn’t seem to bother the Court’s conservative members, though. What bothers them more is that taxpayer money can be used to fund a private secular education but not a private religious education;1 that two private schools could be absolutely identical to one another except for a claim by one of the schools that their educational mission is motivated by faith, which would lead Maine to deny that school funding the other school would receive; and that students eligible for the subsidy may choose to attend a school for a variety of reasons (i.e., a good science/music/foreign language program, a liberal/conservative curriculum, a championship hockey team, etc.,) but can’t choose to attend a school that would provide them with a religious education.
I find myself sympathetic to these claims. If the government is going to use public money to fund a voucher system to send students to private schools, then any private school—secular or religious—should be eligible to receive that money. That seems to me to be the spirit of religious neutrality: Not only should no faith system be favored or disfavored over another, but religion itself shouldn’t be favored or disfavored over any other worldview.
That opens up a big can of worms, though, one religious institutions may not want to mess with. Since the state of Maine is interested in using private schools to achieve public educational goals, it makes sense to me to then allow Maine to establish criteria for how any private school would have to operate in order to become eligible for state funding. The state may not be able to prohibit religious teaching at religious schools, but it could (for example) require schools to teach certain subjects (i.e., sex education, evolution, etc.) in accordance with certain curricular standards to qualify. Some religious schools may object to such mandates, but the mandates would apply to all private schools regardless of religious/secular status, and refusing to comply would only mean they were ineligible for public funding, not that they would have to close or face state sanction. Students could still attend religious schools ineligible for public funding, but their parents would have to pay their way.
The schools in the Maine case may already be running up against this possibility: Maine law requires recipients of the subsidies not to discriminate against LGBTQ individuals, and the Maine schools have policies against employing LGBTQ staff members and accepting LGBTQ students. The schools have indicated they are unlikely to participate in the subsidy program if doing so would require them to change their LGBTQ policies. But imagine how such neutrally-applied regulations could corrupt other religious educational institutions that are already receiving state financial aid. Would such schools alter their policies to continue to rake in state money even if that meant compromising on a key value? Doing so might entangle them in affairs of the state and the secular world they would have otherwise avoided if a stricter wall of separation had remained in place. As much as people may worry about the implications a case like Carson may have on the state, the church may also have cause for concern.
I worry, however, the Supreme Court might soon come around to regarding even neutrally-applied regulations as unconstitutional. Among conservatives and the religiously-devout, the concern here would be that the state’s funding criteria would unfairly target or place an undue burden on religious schools, limiting their ability to gain access to public funds and preventing students of faith from enrolling there. Furthermore, even if those standards applied to other schools, some would argue religious organizations, in accordance with the Free Exercise clause of the First Amendment, are afforded unique protections under the Constitution and should not be beholden to these sort of state regulations. Their status as a religious institution would excuse them from the law in much the same way churches are exempt from paying taxes.
The Court has already shown they are inclined to follow such an argument. In the 2014 case Burwell v. Hobby Lobby Stores, Inc., the Court found that privately held for-profit corporations are exempt from regulations their owners find religiously objectionable. (In this case, the owner of Hobby Lobby did not want to follow the Obamacare mandate that required employers to cover the costs of contraception as part of their company-sponsored employee health insurance plans.) Despite the supposedly limited nature of the case, Burwell seems to open the door to a whole raft of cases in which individuals or organizations may object to laws for religious reasons. The Court dodged one such case in 2018 when it used something like a technicality to avoid a direct ruling on whether the conservative Christian owner of a Colorado bakery open to the public could, citing his religious beliefs and despite Colorado’s anti-discrimination laws, refuse service to a gay couple looking to purchase a wedding cake from him. I’m not sure how the Court would rule on such a case today, but given its conservative bent (and with all technicalities aside) I’d guess the store owner would stand a good chance of winning. The legal consequences of such an outcome are chilling: Would we suddenly see storefronts with signs in the windows proclaiming “NO GAYS” or “NO MUSLIMS” or “NO JEWS”?
Taken together, the Maine school voucher case and the Colorado bakery case reveal a logical inconsistency at the heart of conservative jurisprudence on church and state cases. In the Maine case, it appears conservatives want the state to treat the religious and the secular as equals. But in the bakery case, conservatives appear to want the religious to receive preferential treatment that would excuse them from adhering to the rules everyone else has to follow. Of course, that contradiction can be reconciled if the goal is not religious neutrality but a form of religious supremacy in which the state supports religious undertakings while allowing the faithful (but not those who adhere to deeply-held secular beliefs) to exempt themselves from certain legal requirements. That would require a dramatic reordering of church-state relations.
It feels like we’re on the verge of a new era in jurisprudence related to religious freedom in the United States. Maybe the Court will only take modest steps in this area by poking a few holes in the wall separating church and state and setting up carefully considered rules regulating the interaction between the two. I’d be open to that possibility. Yet I can’t help but feel the Court has bigger changes in store, changes that wouldn’t just strike a more even balance between the religious and the secular but give religion an official place of privilege in the civic life of America.
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Vincent’s Picks
(Vincent’s Picks theme song here)
The first thing you notice in Penny Lane’s new HBO documentary Listening to Kenny G (part of the channel’s Music Box series) is that the poor guy after all these years can’t change his hair style. It’s part of the package, I suppose, like KISS’s make-up, even though getting a haircut wouldn’t alter Kenny G’s music one bit. Other artists can change their look. But what would Kenny G be without his hair?
Kenneth Gorelick—a.k.a. Kenny G—is one of the most critically despised musicians of all-time. He is pilloried by many for making the sort of mawkish, easily imbibed music that soundtracks so many interminable visits to waiting rooms and reception areas. He’s particularly loathed by jazz purists for recording a kind of jazz-ish music that has little to do with jazz as an artform or a tradition but that millions of people have somehow come to associate with jazz. (For the record, he’s a schmaltzy pop musician who has wedded his melodic saxophone playing to the sort of production you would find on synthed-up, drum machine-powered 80s soul/R&B ballads.)
Kenny G is also the best-selling instrumentalist of all-time and, long after peaking in popularity in the late 80s/early 90s, remains adored by legions of fans. Lane uses her film to explore this polarized reaction to Kenny G’s music. Do people’s reactions to his music tell us more about the mass public’s bad taste in music or the critical class’s disdain for those who would buy a Kenny G record? Are there qualities that make music objectively good or is it all in the ears of the beholder? Is music good so long as it moves you, or is there something more to it? Does music become good if enough people say it is? What’s worse: Unenlightened populism or enlightened snobbery? What’s wrong with liking Kenny G? Would people be better off if they knew the answer to that query?
Lane raises those questions but doesn’t really answer them. It’s not even clear what side of the debate she comes down on. Her film presents a pretty sympathetic portrait of the man, but even some of the most sincere clips are laced with irony. (At times Kenny G even seems in on the joke.) Her outside sources are almost always insightful, but every now and then come across as pretentious or far too removed from the way most people listen to and respond to music.
Rather than pass judgment, Lane supplies viewers with bits of evidence that help us understand Kenny G as an artist and the Kenny G phenomenon. We learn from the film that Kenny G is a technically proficient musician, a hard worker, and an overachiever. He was a high school jazz phenom who remains a source of pride for his high school jazz band director. He’s a relentlessly positive guy even though the course of his career could have easily left him filled with resentment. And even though he sold millions of records in the 1980s—the apex of the pop music era—he’s always been kind of dork. Say what you will about the commercial forces that fueled his success, but in the MTV era, Kenny G didn’t look like a pop star, and he definitely wasn’t recording the kind of music—wordless saxophone solos—that typically made much of an impression on the charts. He must have tapped into something.
But the film also provides the viewer with a lot of social context that helps explain (for better or worse) Kenny G’s appeal. Often regarded as “easy listening,” we learn office managers had a tendency to pipe his music into workplaces because they found the music had a calming but stimulating influence on their employees. That seems to suggest his songs are less art than mood modulator. In the way his music conveys a certain kind of classiness, upward mobility, and economic comfort, one can imagine his albums being included in a starter kit for yuppies. There’s also some weird racial stuff going on. Early album covers obscured his race. His music signaled “soul” but without any of its edges, heat, rhythmic spirit, or emotional range. In his hands, smooth soul and smooth jazz become absolutely frictionless. Asked if he is guilty of cultural appropriation, he confesses that is probably true. (It’s also worth remembering Kenny G was discovered by record executive Clive Davis, who is also responsible for boosting Whitney Houston’s career. Lane reminds us how Davis—in an era of “welfare queens” and the “war on drugs”—made sure Houston was packaged to be consumed by middle American white audiences. It made her a massive pop star, but as a result, even at her commercial peak in the 1980s, we may have only gotten a glimpse of her musical gifts. Think about the implications of that for what Davis heard in Kenny G’s music and the way he marketed Kenny G to the record-buying public.)
So after watching this documentary, do I have a newfound appreciation for Kenny G’s music? Do I think Kenny G’s music is any good? I have to be honest with you, I do not. Sorry if you like it, but I’ve listened to way too much music and Kenny G just doesn’t hold up. But here’s what else I’ve learned: If the music moves you, it doesn’t really matter what I or anyone else thinks about it. There’s music I like too that isn’t very good and that doesn’t match up with my general preferences (which are impeccable, by the way, thank you very much) just as there’s music that lots of people say is great that I just can’t get into. But however we differentiate between objective taste and personal preferences, I think the reason we like a lot of music comes down to what it does for us, where it takes us, and what sort of memories it conjures up when we hear it. Maybe that isn’t exactly artistic appreciation, but it’s some kind of appreciation nonetheless.
Let me put it this way: You can like Kenny G. That’s fine. Just know, if you open yourself to it, there’s a lot more interesting music out there to discover.
Exit music: “Darn That Dream” by Dexter Gordon (1964, One Flight Up)
Justice Samuel Alito raised this during oral arguments when he asked if Maine prohibited parents from sending kids to schools that teach a purely materialistic (read: Marxist-Leninist) curriculum or (ugh) critical race theory. It’s fairly clear Alito finds it preposterous taxpayer money could be spent teaching kids communism and CRT not Catholicism.