Brian Lehrer: Brian Lehrer on WNYC. There were five more opinions delivered by the Supreme Court this morning, not the biggest of the big ones that you know what they are that we're waiting for. We're going to speak about one of the rulings that did come down this morning and its possible implications for the separation of church and state.

A tuition assistance program in Maine gave families money to send their children to private schools when their local public school district did not have a public high school at all. That program originally excluded religious schools. Today's ruling from the Supreme Court finds the exclusion of religious schools unconstitutional. Back with us now, Emily Bazelon staff writer for the New York Times Magazine, cohost of Slate Political Gabfest, Slate Podcasts and creative writing and law fellow at the Yale Law School. Hey Emily, thanks for coming back on.

Emily Bazelon: Hey Brian, my pleasure.

Brian Lehrer: Can you give us some background on this case Carson v. Makin?

Emily Bazelon: For sure. The State of Maine has parts of the states where they have school districts, but not enough kids for a high school. In those rural parts of the state, there's a program where your family gets to pick your high school and the state will pay for it if it's a private school, but there was a restriction. If you would like to go to a religious private school, the state said, "Sorry, we are not going to pay for that because we see that as endorsing a particular religious point of view. We think that that's not the policy we want and also we think it violates the establishment clause in the first amendment, which says that the state shall not establish religion."

Brian Lehrer: The vote was six to three. On what grounds did the conservative majority and that is the conservative majority on the court today for so many things. Six, three on what grounds did they find the exclusion of religious schools unconstitutional?

Emily Bazelon: What the Supreme Court is saying here is that effectively the free exercise clause, the right to exercise your religious freely just erases the violation of the establishment clause here. There's this tension. The state doesn't want to endorse religion, but families want to send their kids to religious school. The court just entirely resolves that tension in favor of funding religious schools. It's just important to note, this is just 180 degree turn of how we usually think about these two rights and how they work together.

Brian Lehrer: They do work together. Let me put it that way. In his dissent, Justice Breyer reminded his peers on the court that the first amendment begins by forbidding the government from making any law respecting an establishment of religion. People interpret the word respecting differently there. People interpret the word establishment even sometimes differently there. How does the conservative majority's ruling overcome the old arguments that you were referring to that would've prohibited people from using those tuition vouchers at religious schools?

Emily Bazelon: Basically the majority says that this is a neutral benefit program and once you're giving out school funds to other kinds of schools, you cannot exclude religious schools on the basis of there being religious. Again, if you're used to thinking of the state endorsing or funding religious organizations as something that constitution doesn't allow, this is a head scratcher, but the court had taken an interim step in this direction in a previous case about whether, sorry I shouldn't be laughing, but this one seemed low stakes.

It was about whether religious school could get money from the state to put cushy material down in their playground. That case was called Trinity Lutheran. In that case, the court said, "Well, this is like a totally unreligious use of the money. It's just for a playground. Nothing to see here. Now, however, we see that same principle applied to actually religious instruction.

Brian Lehrer: Interesting. Now listeners, we could take phone calls for Emily Bazelon on this or if you have any other Supreme Court related questions as we wait for some of the other big rulings to come down between now and presumably the end of the month, maybe they'll go into July because they have so many big ones, but they usually don't. 212-433 WNYC 212-433-9692.

I guess people could argue this either way that it's on the one hand like the government establishing religion because the government is funding particular religious schools. On the other hand, you use the word neutral in their argument. If I was a dad in this position, I could use this money at an independent secular private school. I could use it as at a Pentecostal school. I could use it at a Jewish school. I could use it at a Muslim school. It's not establishing any particular religion. How do the dissenters argue that it does establish religion?

Emily Bazelon: What the dissenters are worried about is that the court is opening the door here to some really big unanswered questions. In his dissent, Justice Breyer says, so first of all, it's one thing if a state wants to be funding religious schools. Maine chose not to. Effectively what the conservative majority is saying is that a state must include religious schools in a program like this, which is different from allowing them to if the state chooses.

Justice Breyer starts with that question. Then he says, "Once may becomes must, does that mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools? Does it mean the school districts that give vouchers for use at charter schools have to pay equivalent funds to parents who wish to give their children a religious education? Then what other context would this principle apply to?"

When you think about all the ways in which the state funds public schools, the state funds non-sectarian organizations, if a neutral benefits program now has to be open to any religious organization. That's just a huge change in how we think about the wall between church and state in this country.

Brian Lehrer: Even though this is about one rural public school district in Maine that's so tiny, they don't even have enough kids for a public high school. Are you saying this has huge implications for taxpayer funding of religious education all over the place?

Emily Bazelon: Yes, absolutely. The principle that is issued here seems pretty limitless. There's another older case that the court had to distinguish from this one and that one is called Lock v. Davis. That was about whether the state could withhold funds for training religious leaders at a religious school. It seemed like that could apply more broadly if you can't change the train religious leaders, maybe you can't have the state being forced to pay for religious education, but now we've really obliterated that distinction. The conservatives are saying they're really limiting Lock to its facts. They're saying, "As long as this money isn't going effectively to train clergy, then the state has to provide it."

Brian Lehrer: The dissenters were the three liberal justices who we might imagine, Breyer, Sotomayor and Kagan?

Emily Bazelon: Yes, exactly. We have an opinion from Justice Breyer that stands for all three of them. Then an extra dissent from Justice Sotomayor who is just, I think particularly distressed. She says very bluntly that she thinks the court is dismantling the wall between church and state here.

Brian Lehrer: It is neutral in the way that you described. Do you see or did they see a slippery slope that could lead to the government establishing a particular favored religion?

Emily Bazelon: I don't think so. That would be so at odds with American history. I can't really figure out how they would go about doing that and yet it does often seem in these cases that the people who happen to benefit are evangelical Christians.

Brian Lehrer: Who loses, who gets the short end of whatever stick. However, we even measure that in this case.

Emily Bazelon: I think in this particular case, it's hard to really say exactly who loses. I guess the values of the State of Maine lose because those values were non-sectarian as expressed in this case. If this principal is broadly applied and the state has to fund religious schools if it provides vouchers or just if it provides public education, then you see just a total gutting of our public school system.

Brian Lehrer: That's what some of the advocates or activists on that side really want. They want the public school system as it more or less exists in this country to be completely abolished really or evolved or devolved into a voucher system where what the government really provides families is a certain credit that they can apply toward buying an education, and that would put religious education on, well, let's say at a competitive advantage with secular education in many cases because sometimes some of the churches or other religious institutions have a lot of money that they throw at it to subsidize it out of their true belief or other things like that.

Do you agree that that's the main political goal of groups that strenuously support or work for decisions like this? They don't really want to see a public school system anyway the way we know it, they'd like to see a complete voucher system.

Emily Bazelon: Yes. I think there is a lot of resistance on the religious array to a universal public school system where that is the main option that families have. If you want to reject that option, you have to buy out of it yourself. That is a goal. It would be just a tremendous shift in American life. We've had some moves in that direction with voucher systems, but preventing the vouchers from funding parochial schools has limited their reach, and it's meant that they are not having the same religious effect. If we change all of that, that is just going to vastly reshape our education system.

Brian Lehrer: Before we take a couple of phone calls, what would be the next legal step if this is a step down the road to more funding of religious education by taxpayers in this country? What might be the next case to reach the Supreme Court in this lineage?

Emily Bazelon: If I was bringing these cases, I would look for a voucher system in a state or locality that had pretty loose rules for what kinds of schools qualify but did not allow religious schools into the voucher system, and I would challenge that, and I think that is the likely next case.

Brian Lehrer: 212-433-WNYC, with Emily Bazelon, on the Supreme Court ruling today. Adam in Morristown, you're on WNYC. Hi, Adam.

Adam: Hi, how are you? I'm a longtime listener. I really appreciate you.

Brian Lehrer: [unintelligible 00:12:19]

Adam: I was just thinking about your statement earlier about the person having the ability to go to multiple different schools, and that's the government isn't endorsing a particular religion. If you reduce it, whether it's due to cost or distance or any other factor, with general availability, you could reduce it down to one choice. If that person's only choice is a religious institution, isn't that effectively the government endorsing one religion?

Brian Lehrer: I guess that's a hypothetical that could apply and maybe even in some rural areas, like the one in Maine, in question, in this case, Emily, if there was no public school system, and there was one dominant religion in that area, there might be only one choice, and it would be a particular religion.

Emily Bazelon: That's possible. I think with this program, kids are allowed to travel pretty far. You'd imagine there would be some private school options that are not religious options, but I don't know enough about the geography and specifics of education in Maine to say for sure.

Brian Lehrer: Right. It is a particular hypothetical. Erica in Hawthorne, you're on WNYC. Hi, Erica.

Erica: Hi, guys. Thanks for taking my call. My question is that if some of these religious institutions are the actual school grounds, also has chapels and churches. I'm sure these two Wishon refunds are a wash for the institution. Some of the state money is then going to upkeep the church or the synagogue or whatever it may be. Is this laying the groundwork to have us to start to tax these churches? Can you apply the logic conversely, so that the church is then taxed so that it goes into this bucket to then go ahead and stipend the students?

Emily Bazelon: That's a great question. I think the answer is probably no, because the schools even if they're attached to churches, they're still going to be non-profit organizations that have tax exemptions. I don't think that tax-exempt status would be threatened by receiving public funds for education, even if it does provide some net benefit for them financially.

Brian Lehrer: Interesting question though, Erica. Thank you. Here's a caller who's a little bit off-topic, but I think this is interesting. It relates to the Supreme Court decisions coming down to the fact that we're carrying January 6th committee hearings every day that they take place. Ellen in Manhattan, you're on WNYC. Hi, Ellen.

Ellen: Hi, thanks for taking this call. I'm calling because I say we should not be doing the January 6th hearings at this point until all the Supreme Court statements are down because they don't want us to know what they're saying. I get they will bring them down at the top when the hearings are on so don't do the hearings.

Brian Lehrer: Using the hearings as a distraction on the part of the Supreme Court, if they're handing down very controversial rulings. Ellen, thank you very much. Emily, we actually have a theory about that here. This is not something that we can prove, but we're speculating in the office about all these changing of the times of the January 6th committee hearings.

I don't know if you know, they were supposed to take place at 10:00 AM on a number of days, including today, tomorrow, and Thursday, but they've changed all the star times that had been announced so far to the afternoon.

We actually think it's very possible that because the Supreme Court releases its decisions in the 10:00 AM hour, they didn't want to compete. They wanted to create some space for media coverage for the Supreme Court rulings in those first few hours. Of course, by the time people digest everything later in the day, in the new cycle, they are competing with each other, but we think it's possible that they moved all these January 6th committee hearings to the afternoon so the Supreme Court could release decisions at 10:00 AM as they do and it would be covered.

Emily Bazelon: That could be. I hope for the sake of you and all the people who have to schedule their lives around these hearings that they gave you some notice because we've known for at least a week that today and Thursday, the Supreme Court was going to make decision announcements at 10:00 AM so there's no reason to leave that switch to the last minute.

Brian Lehrer: Which is exactly the same two days that the January 6th committee hearings are taking place, but today it's at one o'clock, as we said earlier and Thursday I think it's at three o'clock. All right, Emily, we have 15 seconds left. When's Roe?

Emily Bazelon: [chuckles] My guess is next week, Brian. We'll see if I'm right about that, but that's my guess.

Brian Lehrer: Are they going into July?

Emily Bazelon: There's a whole bunch left so it's possible but they try really hard not to do that so I'm betting against it.

Brian Lehrer: Is Roe going to be last last?

Emily Bazelon: Yes. I have no idea but that's my guess.

Brian Lehrer: Emily Bazelon, staff writer for the New York Times Magazine, co-host of Slate's Political Gabfest podcast, and creative writing and law Fellow at Yale Law School. Thank you so much as always on these.

Emily Bazelon: Thanks for having me.

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