Time to Take Alarm

By Ken Burrows

In the early formative years of America, one of the hottest-button issues the Founders wrestled with was the relationship between church and state. Public funding of religion was a key point of debate.

In 1784 Patrick Henry proposed creating a tax to pay for teachers of the Christian religion. James Madison, a staunch advocate of church-state separation, was so repelled by the idea that he delivered in opposition his famous Memorial and Remonstrance Against Religious Assessments, saying citizens should “take alarm at [this] experiment on our liberties.” This was instrumental in defeating Henry’s proposal and paving the way for the much different Virginia Statute for Religious Freedom, authored primarily by Thomas Jefferson and passed in 1786. His statute read in part: “No man shall be compelled to frequent or support any religious worship, place, or ministry.” He added that such compulsion would be “sinful and tyrannical.”

These Founders’ position against government aid to religion would be challenged in ensuing decades. A notable example is 1947’s U.S. Supreme Court case Everson v. Board of Education of Ewing Township. Here SCOTUS let stand a New Jersey law that allowed tax dollars to pay the cost of busing children to both public and religious schools. However, this was narrowly focused on just the practical activity of bus transportation. Justice Hugo Black, writing for the majority, pointedly wrote that the Establishment Clause of the Constitution’s First Amendment still means “No tax in any amount, large or small, can be levied to support any religious activities or institutions … [or] to teach or practice religion.”

Justice Wiley B. Rutledge wrote a dissent in this case, joined by two other justices, that echoed what Black wrote about tax aid to religious schools. Rutledge criticized the constant drive to obtain public funds for the support of private religious schools, saying this was an effort “to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made.”

Subsequent cases generally tended, like Everson, to strictly limit what kind of public aid could go to religious schools. But in more recent times, a right-leaning Supreme Court is broadening the parameters by allowing tax monies to flow more freely to religious schools. SCOTUS is drifting further away from our Founders’ thinking, stretching “religious freedom” into excessive religious privilege. A June 2020 SCOTUS decision greenlighted state aid to religious schools in Montana, striking down a provision in that state’s constitution that prohibited such aid.

Now the issue looms again in Carson v. Makin, a case that could force taxpayers in Maine to pay for explicitly religious instruction. Maine has long said that for a private school to receive public aid it must be “nonsectarian in accordance with the First Amendment.” But SCOTUS agreed to consider a challenge to that limitation, and observers of oral arguments in the case say the conservative justices seemed open to allowing tax aid for teaching religion.

Almost 240 years ago, the Father of the Constitution, James Madison, said we should “take alarm” at the notion of using tax funds for religious teaching. How SCOTUS rules in Carson v. Makin will reveal if the justices—some who claim to be “originalists”—are faithful to the original meaning of what our Founders fought for, or how alarmingly they will contradict that.

Published in the May 4-10 issue of the Colorado Springs Independent with the quotation below.

A connection between religion and government is injurious to both.

--- James Madison