The Supreme Court Is Declaring War on Secularism

Roberts’s response did not so much dispute his colleague’s critique as prove it. “Justice Breyer stresses the importance of ‘government neutrality’ when it comes to religious matters, but there is nothing neutral about Maine’s program,” the chief justice opined. “The state pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” In short, the free exercise clause had effectively swallowed the establishment clause whole.

Kavanaugh all but admitted this in Wednesday’s oral arguments. In a discussion about the emergence of the federal charter school program in 1994, he noted that “at that point, it was considered constitutional to discriminate against religious entities.” The court’s recent case law, he explained, “has changed that and said, ‘No, it’s not constitutional to discriminate against private religions.’” The result, he concluded, was a “different constitutional understanding” than before.

Other justices echoed his sentiments. Justice Samuel Alito embarked on a series of grievance-laden questions about other types of charter schools that Oklahoma could theoretically create. He asked Gregory Garre, who represented the state Attorney General’s Office, if Oklahoma could set up a school with music classes that exclusively “include jazz and hip-hop and rap and music from non-European countries.” (Probably, Garre replied.) He also asked whether the state could set up a “progressive school” that teaches The 1619 Project. (No, said Garre about the latter, based on the state’s curriculum requirements.)