Wednesday’s Supreme Court oral argument in Carson v. Makin taught two important rule-of-law lessons. One is the danger of seeking “neutrality” toward religion through abstract, one-size-fits-all standards. The second is related: Those abstract legal standards will not achieve neutrality when left to bureaucrats.

Carson involves a Maine tuition assistance program for students living in districts lacking public secondary schools. The program allows parents to send their children to any private school — except a “sectarian” school. To Maine, “the very defining feature of a public school” is that “religion doesn’t come up.” This is at odds with what the Supreme Court has recently confirmed: Excluding religious institutions from public benefit programs because they are religious is “odious to our Constitution.”

And yet, Maine’s religious exclusion came from earlier Supreme
Court decisions. Maine used to allow religious schools to participate in the
program. But Maine changed course in the 1980s based on then-recent Supreme
Court decisions interpreting the First Amendment’s Establishment Clause. Those
cases reached their apogee in Lemon v. Kurtzman.

As four justices would say more recently in American Legion v.
American Humanist Association, Lemon “ambitiously attempted to find
a grand unified theory of the Establishment Clause.” Lemon dispelled “a
more modest approach that focuses on the particular issue at hand and looks to
history for guidance.” Instead, Lemon tells local governments to ask
whether a particular manifestation of religion in public life is an “excessive”
form of “entanglement.” Lemon was later modified to ask whether a
“reasonable observer” would view the government’s work with religion as an “endorsement.”
Either way, as the plurality in American Legion said, Lemon
“could not resolve” the “great array of laws and practices” demonstrating
government and religion’s diverse interactions in our society. Unsurprisingly,
Maine’s answers during oral argument couldn’t either.

Maine’s explanation of how it identifies “sectarian” schools taught
the first lesson: Those who observe secular orthodoxies will benefit from Lemon’s
abstract approach. For example, Maine could not explain to either Chief Justice
Roberts or Justice Alito why students could use tuition grants toward schools
that are “run” by a religious organization based on a “doctrine” of service — but
not to schools that “infuse” religion “in every subject with their view of the
faith.” Maine said these present “much tougher situation[s].” Some religions,
Alito pointed out, could be like Unitarian Universalism and have religious
tenets that accord with the zeitgeist. Maine suggested that teaching such
tenets “would be very close to a public school” and therefore acceptable. “Well,”
Alito responded, “then you really are discriminating on the basis of religious
belief.” Maine’s response was to then claim that it “can’t . . . tell” whether it
“would approve a Unitarian school.” Commenting on these exchanges, Justice
Gorsuch said that Maine’s approach “favor[s] religions that are more watered
down, some might say, . . . more comfortable with what a . . . bureaucrat . . .
might say.” The abstract pursuit of religious neutrality results in
marginalizing unpopular religious beliefs.

Maine’s answers on how it isolates “sectarian” from other belief
systems revealed the second lesson about the danger of unbridled discretion toward
religion. Maine claims it has “never had a hard case” in determining whether a
school is “sectarian.” But, Maine also confirmed that its administrators
possess discretion to “do[] a little homework” into a school to assess how
“sectarian” it is. Self-assertions of religious identity may not suffice, because
religious schools are “discriminatory.” But as Justice Barrett put it, “all
schools, in making choices about curriculum and the formation of children, have
to come from some belief system.” Public schools inculcate belief systems too. How
could Maine prohibit all other belief systems in schools — be they materialism,
Marxism, Critical Race Theory, or white supremacy? Maine had no consistent
answer. As Maine put it, the legislature only “addressed” religious beliefs. But,
in response to the white supremacy inquiry, Maine said “a way would be found to
ensure that that school is not allowed to participate.” Bureaucratic
willfulness is not neutrality.

Carson presented the Supreme Court with a wolf that came as a wolf. A government lawyer candidly demonstrated how arbitrarily the Supreme Court’s abstract, universal concepts of “neutrality” toward religion play out on the ground. The subtleties of First Amendment doctrine have little purchase with state officials acting on preconceived notions about the role of religion in society. And without a clear statement from the Supreme Court, we can expect the folk understanding of church-state relations to prevail — not what is written in the US Reports. Re-anchoring First Amendment law around the “more modest,” history-and-tradition-based approach discussed in American Legion would be a clear path to genuine religious neutrality. One even Augusta bureaucrats could understand.

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