The wall separating church and state is one of the fundamental principles of the United States. Sonia Sotomayor, one of three liberal justices on the Supreme Court, is accusing her conservative majority colleagues of tearing it down.
Sotomayor disagreed this week against a decision by a nine-member court that said the state of Maine cannot deny public funding to religious schools.
“There is nothing neutral about Maine’s program,” wrote Chief Justice John Roberts in an opinion piece along with the other five conservative judges.
“The state pays tuition for some students in private schools — unless the schools are religious,” Roberts said. “This is discrimination against religion.”
Sotomayor, who was nominated to the court by Democratic President Barack Obama, wrote in a sharp disagreement, “What a difference five years make.”
“In 2017, I feared that the court was ‘taking us to a place where the separation of church and state is a constitutional slogan, not a constitutional commitment,'” she said.
“Today, the Court takes us to a point where the separation of church and state becomes a constitutional violation.”
Sotomayor ended his contribution with a pointed gesture.
“With growing concern about where this court will take us next, I respectfully disagree,” she said.
Zachary Hayden, chief counsel for the American Civil Liberties Union of Maine, said the court’s ruling, which comes days before a much-anticipated abortion rights decision, upheld two decades of jurisprudence.
“For more than 20 years, every court that has challenged Maine’s law that restricts public funding of religious education has upheld its constitutionality,” Hayden said.
“But this Supreme Court has ruled completely contrary to the founding principle of separation of church and state.”
Lia Epperson, a law professor at the American University of Maine who joined a briefing in the case in support of Maine, said the decision was significant.
“This is the first time a court has explicitly required taxpayers to support something that is a specific religious activity—that is, religious instruction,” Epperson said.
Steven Schwinn, a law professor at the University of Illinois at Chicago, said the decision was the latest by the Roberts court “on a long trajectory of expanding the roles of religion in public life”.
“The court has not changed the underlying law,” Schwinn said. “It has not gone so far as to eliminate earlier cases.
“And yet it has moved towards not only making religion more inviting in public life but has actually made religion more mandatory in public life.”
“It’s done incrementally,” he said. “You may agree or disagree with the court’s direction, I think so, but that the court is taking a direction cannot be denied.”
During his four years in the White House, President Donald Trump nominated three conservative justices, consolidating a 6-3 right-wing majority on the nation’s Supreme Court.
“If there was a question before, now the majority is clearly in favor of religion,” Schwinn said.
“We have an increasingly religious and conservative court,” she said. “You will see that reflected in the decisions.
“This is the most Catholic that the Supreme Court has been in terms of judges in its history,” she said.
Six of the nine judges are Catholic – Roberts, Clarence Thomas, Samuel Alito, Sotomayor, Brett Kavanaugh and Amy Connie Barrett.
Justices Elena Kagan and Stephen Breyer are Jewish while Justice Neil Gorsuch is Episcopalian.
Ketanji Brown Jackson, who will replace the retired Breyer for the next term, is a Protestant.
According to a Gallup survey, 22 percent of the American adult population identifies as Catholic and 45 percent as non-Catholic Christian.
Two percent identify as Jewish and 21 percent say they have no formal religious identity.
Kevin Wellner, a professor specializing in educational policy and law at the University of Colorado Boulder, said the Maine ruling could have some potential pitfalls.
“Here’s the example of ‘Do we really want our government to decide which religious beliefs are real? They said.
“‘This is a legitimate church. This is an illegitimate church.'”
“You could end up with a situation where eventually the state has to come and say ‘this is a religious belief that we are going to respect and it is not.'”
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