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Here’s a thought experiment.
It’s the year 2023. A new COVID-23 pandemic is underway. We learned from COVID-19 that both the economic and mental health impacts of massive shutdowns are worse for most people than contracting the disease. However, we also learned that masks can be effective.
So state government institutes a program to give out masks to Maine employers. They aren’t required to do so; they made a policy decision with a spending program. But here’s the kicker: the Legislature says that Jewish organizations — no matter how many employees they have — are ineligible to receive taxpayer-funded masks.
What do you think? Discrimination? Eminently reasonable?
Does your answer change if it is an Islamic mosque? What about a Catholic college? Sikh temple? The Salvation Army?
If your answer changes based on which faith-based organization is permitted to receive masks, you might want to stop and reconsider. If you think that all of them should be banned from receiving taxpayer-funded masks, congratulations! You are intellectually consistent.
And if you think that the government should not be able to discriminate against religious organizations for a generally applicable mask distribution program, you are a faithful adherent to the United States Constitution.
That’s the essence of the Supreme Court’s opinion in Carson v. Makin.
There has been a remarkable number of bad takes following the issuance of the decision on Tuesday. Betsy Sweet, former Democratic primary candidate for governor, tweeted that she hopes we now “tax the [expletive] out of churches.”
Of course, churches do pay taxes. Social Security, Medicaid, unemployment — they are not exempt from those taxes. Churches don’t have to pay property or income taxes, but that’s because they are charitable organizations. They are in the same boat as MaineGeneral, Colby College, and countless other not-for-profit institutions with substantial — or insubstantial — revenues.
In 2015, former Gov. Paul LePage offered a proposal to remove the property tax exemption for some nonprofits. The Legislature rejected it.
Attorney General Aaron Frey stated the Supreme Court decision gives parents “the right to force the public to pay for an education that is fundamentally at odds with the values we hold dear.” Setting aside the question of whether the attorney general is the arbiter of which “values we hold dear,” it is a strange reading of the decision.
The actual decision does not give parents the right to force anything. The Maine Constitution requires towns to make suitable provisions for education; the Legislature enforces this requirement. They have done so by enacting a law that says, in essence, if a municipality does not have a public school, the municipality shall pay an established amount to an accredited educational institution selected by the family.
The Legislature could abolish this “school choice” law tomorrow and force regional educational consolidation; parents would have no right to stop them. All the Supreme Court said is that, if the Legislature chooses to adopt a generally applicable law, it cannot discriminate against otherwise eligible institutions based solely on their religious affiliation.
This isn’t exactly outside the norm. After all, federal Pell Grants — taxpayer dollars — can be used for tuition at religious colleges.
I’ve written before — a couple times — about so-called Blaine Amendments, anti-Catholic legal vestiages named after a storied Maine Republican. Back in 2017, the Supreme Court issued its decision in a case known as Trinity Lutheran. It was a 7-2 vote where Justices Stephen Breyer and Elena Kagan joined the majority to strike down a Blaine Amendment in Missouri.
That case was similar to our taxpayer-funded mask hypothetical. The government had a program to improve safety of playgrounds; religiously-affiliated playgrounds were excluded. The Supreme Court said that was a violation of the Constitution.
There were no calls after that to “tax the [expletive] out of churches,” nor paeans to the loss of “values we hold dear.” It was a milquetoast decision holding that states cannot actively discriminate against religion.
Sounds a lot like Carson v. Makin.