The Briefing

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Part

Supreme Court of the United States

Carson v. Makin

Part

The Briefing

Wednesday, June 22, 2022

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Transcript

It's Wednesday, June 22nd, 2022.

I'm Albert Mohler. And this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part

Big Affirmation of the Free Exercise of Religion: Supreme Court of the United States Rules in Favor of Christian Parents in Maine

Thunderstruck by the United States Supreme Court yesterday in 6-3 decision that upholds religious liberty in a way that could transform the question throughout much of the United States, but ground zero was the state of Maine. And a very unique situation there in Maine, where given the fact that some of the state is extremely rural, local educational districts had given parents the opportunity to send their children to private schools. And the private school education will be subsidized by the state. And amazingly enough, that private school option given to parents. And again, it's understandable. Here you're looking at a state saying, look, we have a responsibility to provide a high school education to our citizens, but in some rural areas, it's just not feasible to have a high school. So instead we will allow parents to send their children to private schools, and we will subsidize that with money given to the parents by the state.

Amazingly enough, that included options outside the United States. So parents in Maine could actually decide to send their teenage children to schools in another country. And they would've qualified if they had met the accreditation requirements. But the state of Maine said beginning in about 1981, "Those schools, the schools to which parents may send their children may not be religious schools." So by a 6-3 divide in the Justices, the Supreme Court handed down its decision yesterday in the case known as Carson v. Makin. And it takes us right to the heart of the issue there in the state of Maine, but it also takes us to far larger issues far beyond just one state in the United States.

We're looking at a big win here for religious liberty. And we're also looking at a very clear definitional decision that says that if the state decides it is going to give citizens—in this case, parents in the state of Maine—a choice. It cannot give only one choice that it will not accept and that choice be defined on the basis that it is religious. In this case, a Christian school, a church school. Religious schools are the only schools that are eliminated by this particular policy. The order of the Court, which always precedes the majority opinion, then followed by dissents, if there are any. There usually are. But in this particular case, the order of the Court is that the Court held "Maine's nonsectarian requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause." Very clear statement, very short, very succinct, but again, that's thunder. That's what it sounds like coming from the Supreme Court of the United States.

Parents who wanted to send their high schoolers to Christian schools there in Maine and were denied this particular tuition assistance, it would've been given if their children had gone to virtually any other accredited school, they sued. And by the time it got to the Supreme Court, the First Circuit Court of Appeals had actually upheld Maine's policy. The Supreme Court reversed that decision and struck down the policy. But it's interesting that at the appellate level, the First Circuit had held that the nonsectarian requirement was constitutional because "the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the rough equivalent of the public school education that Maine may permissibly require to be secular." Fascinating statement. So the first US Circuit Court of Appeals said that the state of Maine was justified in saying that what it's trying to do through this policy is to provide for parents through private schools the equivalent of a public school education.

Now, as you're thinking about worldview issues, you can understand we are headed into deep and important water here because here you have a state actually saying, look, here's what defines a state education. It is secular. It is nonsectarian. Now the implication, and this is something that goes even beyond this case, even beyond this decision, the implication here and is something we need to note, the implication is that Christians have a worldview. As for the public schools, no worldview, nonsectarian, secular, not committed to any particular worldview, except of course, that is abject nonsense. Christians know it's nonsense at a theological level because we know there's no sentient human being, no conscious human being, who does not operate out of a worldview. There is no such place as a place of worldview neutrality. That is not a mode of human thinking. That is not a condition of human living. That simply doesn't exist.

As we know by now, the secularization of the culture, and most importantly, the utter secularization of public school education has meant the institutionalization or the establishment of a secular worldview. And even as the Supreme Court in other decisions decades ago recognized a secular worldview is in its own way a religious worldview. Pointing to the secular issue in the order of the Court, the Court declared, "The key manner in which participating private schools are required to resemble Maine public schools, however, is that they must be secular." That's the very point that the Court struck down. Again, the vote on the Court was 6-3 and the majority was led by the Chief Justice of the United States, John G. Roberts Jr. And thus, he also wrote the majority opinion for the Court. And it is a masterpiece. It is a clear defense of the free exercise of religion.

It is a clear defense of the fact that parents, if they're given the option of choosing a school by the state for this kind of tuition assistance, can't be told the only schools you can't choose are the ones that you would choose that have a religious identity. We often speak of eras on the United States Supreme Court by the chief justice. We speak of the Marshall Court. We speak of the Warren Court. And now yes, we speak of the Roberts Court. Now the Roberts Court is a conservative Court, mostly as compared to the Courts that came before it. But the Chief Justice himself is often somewhere in the middle as it comes to the Court's current composition. There are justices considerably more conservative, and I would argue more consistent than he is on many issues. But the Chief Justice has been really strong on this issue.

And in a succession of decisions over the last 15 years, the Court has moved in the direction of saying that in previous decades, public schools, public authorities, and yes, even the Supreme Court itself had tried to draw a line at what would be permissible and impermissible that was actually one that privileged secularism over religious belief. Now, of course, the key issue here is that you have two clauses in the First Amendment to the United States Constitution. One is the Free Exercise Clause that the government may not hinder citizens in the free exercise of religion. The other is the so-called Establishment Clause stating that the government may not establish religion. Now you have a situation there in which those could appear to be contradictory principles or at least competing principles.

But what we have seen in recent years is that the conservative majority on the Supreme Court has said, "Look, the door has swung far too widely at the expense of the free exercise of religion. This Court, and America's increasingly secular society at large has been so resistant, indeed, allergic to the idea that government could be entangled in any way with religion that it is singled out religion for negative treatment." And as the Court's majority said in this case, that is the one thing government may not do. The chief justice went on to describe the tuition assistance given to parents in Maine as a neutral benefit. That is to say, parents neutrally may choose where they would send their children and the tuition assistance would follow. And even as the state sought to eliminate the option of parents sending their children to religious schools—and this meant explicitly conservative Christian schools—the Chief Justice wrote, "A state's antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise."

That's what's so crucial. The Chief Justice and the Court's conservative majority said, "Look, here's the fact. You simply can't justify a policy that says you can choose anything, but the religious option." This is a generally available program for citizens there in Maine. The state of Maine has no right as it decided back in 1980 and 1981 to say that the only option parents can't take is to send their children to a Christian school. That is an antiestablishment instinct that the Chief Justice said inhibits the free exercise of religion in an unconstitutional and unacceptable way. Now it's really interesting to note how the Supreme Court hands down this kind of decision. It didn't say the state of Maine has to have the program in the first place. It didn't say that at all. The state of Maine could choose to educate its teenagers in some other way in those rather rural districts. The state doesn't have to offer this kind of program.

But if the state is going to offer this kind of program, it can't do so saying that the only schools the parents can't choose are religious schools, consistent with the family's religious commitments. The most important dissent in this case coming from retiring Supreme Court Justice Stephen Breyer. He said, "Look, the decision says that the state must fund religious schools or must fund parents sending their children to religious schools." The Chief Justice said back, "No, that's not what we're saying because we're not even saying the state must have this program. But we are saying that if the state does have this program, it can't discriminate against religious parents." The Chief Justice's majority opinion ended with these words, "Maine's nonsectarian requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program, said the chief justice, operates to identify and exclude otherwise eligible schools on the basis of their religious exercise. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion."

Part

‘The Court is Leading Us to a Place Where Separation of Church and State is a Constitutional Slogan, Not A Constitutional Commitment.’: A Closer Look at the Dissenting Opinions from Carson v. Makin

In other words, that's the formal language of the Supreme Court saying, we have spoken on this finally, state of Maine and others, read it carefully and get in line. But if the Chief Justice's opinion is most important writing for the majority because that's how the decision was decided, the descending opinion coming from retiring Justice Stephen Breyer—remember, he's in the final days of his tenure on the Supreme Court. He announced his retirement. A successor has already been confirmed by the United States Senate. That is Judge Ketanji Brown Jackson, soon to be Justice Ketanji Brown Jackson—nonetheless, even in his closing days, Justice Breyer is ending with some thunder of his own. And this is actually if anything, more interesting to Christians because here we're confronting someone who has a particular outlook that has long been influential and is still influential, particularly on the American left and in the Democratic Party, and he didn't hold anything back.

The most important argument that Justice Breyer made, and this was not the winning argument, but this is the most cogent argument he made, is that the two clauses of the US Constitution should be understood as an effort to try to prevent religious strife in the nation. Now, here you see something that's very interesting. Here you have a justice, and this does really represent the liberal non-textual way of looking at the Constitution, who says, look, there's a reason behind this. And it was to lower religious strife. Now, that language isn't in the Constitution, but nonetheless, he says that the continuity should be that the founders tried in their own way to limit religious strife in the present and in the future and the Court should in our own way now seek to do the same. And there again, you just see kind of a liberal impulse in a very clear way. Justice Breyer wrote, "I have previously discussed my views of the relationship between the Religion Clauses and how I believe these clauses should be interpreted to advance their goal of avoiding religious strife."

Now, what I want you to note there is that is a negative statement. The statement here by Justice Breyer is that those clauses in the US Constitution in the First Amendment actually exist primarily, if not exclusively, to avoid religious strife. There is nothing there about the government declaring the free exercise of religion as a positive good. It's clear that Justice Breyer comes from a Jewish background sees the potential for religious strife everywhere. He writes, "This potential for religious strife is still with us. "We are today a nation," said Justice Breyer, "with well over 100 different religious groups, from Free Will Baptist to African Methodist, Buddhist to Humanist." He cites a Pew Research Center study. He then says, "People in our country adhere to a vast array of beliefs, ideals, and philosophies. And with greater religious diversity comes greater risk of religiously based strife, conflict, and social division." The Religion Clauses, he said, were written in part to help avoid that disunion.

And again, the justice is speaking honestly. He is writing consistently with his jurisprudence over the course of his entire adult lifetime. And here you see the point. The point is that he sees a practical issue at stake here. Not so much a question of constitutional interpretation in terms of the words of the text, but rather a practical issue, that practical issue is negative. It is avoiding religious strife. It is clear he sees that as a real danger. And he sees the Court's responsibility as doing whatever is necessary to lessen the chance of that religious strife. The majority said, "That's not our role, that's not our job." And furthermore, the Free Exercise Clause has been actually limited by the Court by those who have tried to do the very thing that Justice Breyer is calling for. But there's something else that's just extremely important that Christians need to note in the context of this case from Maine and in the context of Justice Breyer's dissent, because one of the most interesting things he does is listed at page 11 of his dissent.

One of the most interesting things he does is to say that these schools as conservative Christian schools are really conservative and really Christian, and that's the problem. He cites the first school in question, Bangor Christian School, and the fact that the school says it has "educational objectives that include leading each unsaved student to trust Christ as his or her personal savior and then to follow Christ as Lord of his or her life, and developing within each student a Christian worldview..." Well, did you just hear that? "And Christian philosophy of life." Now, the thing to note here is that Justice Breyer sees and he would expect others who think like him to see that is a huge problem. Here you have a Christian school seriously Christian. He goes on to cite the documents from the school saying that it "does not believe there is any way to separate the religious instruction from the academic instruction."

But at this point, the foundation is laid by Justice Breyer for him to come back and say, look, the public schools have a primary responsibility of providing adolescents with a civic education. And he honestly, and I think straightforwardly, and I really mean, honestly, I think he honestly believes that is non-religious. It does not have any particular worldview. And by the way, the point here is that actually the worldview never was neutral, but now it is, as you know the situation in public schools across the United States, it is increasingly hostile to conservative biblical Christianity. Justice Breyer also cites a second school, Temple Academy and he says, "It similarly promotes religion through academics." It cites the school's academic philosophy as "based on a thoroughly Christian and biblical worldview." Again, he finds that to be a huge problem. And then he writes this, this is the point, "The differences between this kind of education and a purely civic, public education are important."

Trying to defend what he sees as a civic education he says that the schools must be "a most vital civic institution for the preservation of a democratic system of government, and the primary vehicle for transmitting the values on which our society rests." The key issue there is the word 'values.' Now Christians need to understand the word 'values' is not in every sense, the wrong word, but increasingly over the last half century, it's the word that people use when they want to try to come up with a secular term for something that is grounded in morality or in some kind of say civic values. But the point here is, and again, I think Justice Breyer is absolutely honest in this. I think he's wrong, but I think he's honest. I think he honestly believes that a school can teach merely neutral values. He thinks secular values are neutral values, but as Christians must understand, secular values are not neutral.

Justice Breyer says that some taxpayers in the state, more secular taxpayers in Maine may be "upset at having to finance the propagation of religious beliefs that they do not share and with which they disagree." Again, the majority of the Court didn't say that Maine has to even have this program. It just says, if you're going to have the program, you cannot say that the only schools not funded as it comes to the subsidy for parents would be Christian schools. A final dissenting opinion was offered by Justice Sonia Sotomayor. And she wrote that she had warned five years previous in 2017 in another related case that "the Court is leading us to a place where separation of church and state is a constitutional slogan, not a constitutional commitment." Well, clearly, she's very upset about the majority opinion in this case. She concluded her statement with these words, "With growing concern for where this Court will lead us next, I respectfully dissent."

Just one final thought on this. What we see very clearly is that worldview matters not only in the schools, not only in the state of Maine, not only in every arena of life just in a general sense, but at the Supreme Court of the United States. And you're looking here to 6-3 decision. And the worldview of the six and of the three certainly overlaps in some issues of constitutional interpretation, but there are vast areas that do not overlap. And worldview matters not only in the school, not only in the home, not only in the church, but at the Supreme Court of the United States, lest we ever forget.

Part

Colombia, France, and Israel All Rocked by Political Upheavals — And Big issues are at Stake in All Three

But next there are some really big international headlines that demand our attention. We're going to be looking in particular, if quickly to Colombia, France and Israel. How do those three end up together? It's because all three are experiencing political tumult.

Most importantly, let's start with Colombia. That South American country has in its most recent presidential election, just in recent days, elected its first leftist president. And it did so in such a way that it's sending a very clear signal. Now it's not clear exactly where the government will go, but this particular candidate, Gustavo Petro was elected on a leftist platform. Now Colombia has been a very conservative country. It has been a country that has had to deal with all kinds of narcotic corruption and any number of other things, gangs. But at the same time, it is basically held to a rather conservative governmental system. But all that's changing, the political culture in Colombia has now changed to such degree that they have elected an ex-rebel, basically someone who's operated on the Marxist fringe, who is now going to be the president of Colombia.

Mr. Petro won on a platform of trying to address the issue of inequality, arguing that a lack of equality has now become such an issue that it's going to require a fundamental change in the society. And that fundamental change is towards greater collectivism rather than greater individualism, a larger role for government and a larger role for government in the economy. Now, one of the things we need to note is that he is sending stress signals throughout the entire South American region because his policies actually are enacted there in Colombia, it's going to be a major change. It is likely also to lead to a smaller rather than larger economy for Colombia. For one thing, he ran on a platform of ending petroleum exploration in a country and at a time where that's decidedly out of step, but he went on to speak about his platform as addressing what he called the depletion of the model.

And that model basically means some form of capitalism to be replaced with something else. He said that he would introduce legislation to guarantee work with a guaranteed basic income and that he would move the country to what the New York Times described as a publicly controlled health system and increase access to higher education in part by raising taxes on the rich. Now what's the point here? Well, even as we're concerned for our neighbors in Colombia, one of the things we need to note is that the kind of constitutional self-government that is the American system depends upon the great strength of the middle class. Now, one of the problems in much of Central and South America is that there is not that much of a middle class. There are the very rich and there are the very poor. The very poor vastly outnumbered the very rich, but the very rich have inordinate political power. But it's just a reminder to us that should the American middle class grow weaker, then America's system of constitutional self-government would grow weaker.

To put it another way, the middle class made up primarily of married couples and their families and larger kin in neighborhoods, the middle class is the great political ballast of a constitutional form of government. But this development in Colombia also reminds us that a middle class doesn't happen by accident. It is in itself, not just in economic, but a political and a moral achievement. Moving quickly to France, France's president, Emmanuel Macron just recently reelected just lost his majority in the parliament. And in the French constitutional system, which has an extraordinarily powerful presidency, it still matters who controls parliament. And he and his party have lost control of the French parliament. To whom did they lose control? To something in the middle? No, to the right, to one extent in conservative parties, but also, this is more important, to the left.

The President of France has now been outflanked by the radical left. What that means for France remains to be seen. But it does mean, if nothing else, that Emmanuel Macron who has presented himself as the new leader for a new France, he's going to have to spend much more time dealing with issues at home than abroad, which is going to change his political personality, if not his political opportunities. But finally, we go to Israel because Israel's government is dissolving. The prime minister of Israel said he would move to dissolve the government and he would call for Israel's fifth election in just three years. Now what's the big worldview issue here? It comes down to this. It points to the fact that if you have a government made up of multiple parties each with its own agenda, none of them able to achieve a clear majority, then you're going to end up with some kind of coalition.

And one of the things that America must learn and observe looking around the world is that coalition governments usually don't work and they often just don't last. In this case, the government of Prime Minister Naftali Bennett, which was the most diverse of any of the governing coalitions, it didn't last very long at all. And now Israel's facing its fifth national election or parliamentary election in just a process of two years. It opens the door for perhaps former Israeli Prime Minister Benjamin Netanyahu to regain the office. But he would have to put a coalition together because even as his party has the most seats in the Knesset, the Israeli parliament or legislature, it doesn't have enough to form a government alone. But there's another lesson here just as we close, and that is that the government that was headed by Prime Minister Naftali Bennett was actually not just the most diverse. It was so diverse that it included people on the far left. And in Israel, that means left. And on the far right. And again, that means on the right.

And guess what? They don't play well together in the sandbox when it comes down to matters of policy. And eventually if you're a government, you have to deal with policy. And then if your coalition doesn't share the same policy goals, guess what? Your coalition no longer stays together. Israeli elections are always interesting to watch from afar, but the people of Israel, the voters of Israel have to be getting fatigue. Five elections in two years. Well, just imagine what that would feel like in the United States. Then again, let's not.

Thanks for listening to The Briefing.

For more information, go to my website at albertmohler.com. You can follow me on Twitter by going to twitter.com/albertmohler. For information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boycecollege.com.

I'll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

R. Albert Mohler, Jr.

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