Big News at the Supreme Court

In terms of impact on the Torah community, SCOTUS’s decision in Carson v. Makin was much more consequential

The Supreme Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization, overruling Roe v. Wade and Planned Parenthood v. Casey, drew most of the discussion of the Supreme Court last week. But i, striking down a Maine statute that banned state educational stipends to rural parents underserved by public schools from going to religious schools, was much more consequential.

And while Dobbs could in certain circumstances infringe on religious rights — where state restrictions would prevent even those abortions required by halachah — Carson is an unmitigated victory, both at the legal doctrinal level and in terms of practical impact.

Just as Dobbs cut through, without qualification, nearly fifty years of Supreme Court jurisprudence relating to abortion, so too Carson did away with much of the Supreme Court jurisprudence surrounding the Establishment Clause from the 1970s and 1980s. The latter has been predicated upon the supposition that the Establishment Clause requires a “wall of separation” between state and religion.

But as Columbia law professor Philip Hamburger demonstrates in Separation of Church and State, the term “separation of church and state” was almost absent from the debates surrounding the inclusion of the Establishment Clause in the First Amendment. Most of the Founders were convinced that America’s republican experiment could only flourish with a religious citizenry. The Establishment Clause was included primarily at the behest of Protestant dissenting sects, who were concerned about religious tests of office and about being discriminated against.