Supreme Court Justice Amy Coney Barrett referred to the Israeli-Palestinian conflict as the "Jewish-Palestinian conflict" during a hearing on a case concerning public funding of religious schools on Wednesday.
"How would you even know if a school taught all religions are bigoted and biased or Catholics are bigoted or, you know, we take a position on the Jewish-Palestinian conflict because of our position on, you know, Jews, right?" said Barrett in a question directed at Maine Chief Deputy Attorney-General.
The case being heard by the Supreme Court was Carson v. Makin, which centers on Maine's school tuition payment program that excludes schools that promote a faith or belief. Two families sued after they were denied tuition assistance, arguing that the program violates their religious freedom and equal protection rights.
The tuition program helps students who live in rural areas without access to public schools to receive a subsidy to attend a private school, as long as it is "nonsectarian," which has been used to exclude religious schools.
Rachel Laser, President and CEO of Americans United for Separation of Church and State, first pointed out Barrett's statements in a tweet on Wednesday evening. Laser also stated that the court appeared to be leaning in favor of forcing Maine to provide the subsidy to religious school students as well.
"Today’s oral arguments in Carson v. Makin revealed that the Court’s conservative justices may be poised to turn America’s foundational principle of religious freedom on its head," said Laser in a statement on Wednesday. "That principle has never been understood as requiring the government to fund religious education, but several justices seem prepared to reinterpret it to mandate exactly that.
“One of the core reasons our country’s founders enshrined church-state separation in the Constitution was to ensure that the government doesn’t force taxpayers to pay for the private religious education of others," added Laser. "If the Supreme Court requires Maine to fund religious instruction, it will be the first time the court mandates that taxpayers must pay for religious activities – shamelessly undermining our country’s founding principles that form the core of our democracy.”
Conservative Justices: Pls stop using Judaism to support undermining church-state separation. Most Jews are *relieved* for states like ME not to fund religious education 'cuz we know we'd otherwise mostly be funding a religion not ours & that may well say negative things about us
— Rachel Laser (@rachelklaser) December 8, 2021
In a tweet on Wednesday, Laser called on justices to stop using Judaism in arguments in favor of forcing public funding of religious education. "Most Jews are relieved for states like ME not to fund religious education 'cuz we know we'd otherwise mostly be funding a religion not ours & that may well say negative things about us," wrote Laser.
Some of the arguments in the case refer to a circuit court's decision on Trinity Lutheran Church of Columbia v. Comer, which ruled that restrictions on receiving public funding against religious bodies are allowed as long as the funding is restricted due to the fact that the funds will be used for religious purposes and not based purely on the fact that the body has the status of being religious.
The petitioners claim that this distinction lacks a basis as barring funds to students who wish to learn at religious schools would discriminate not only against religious use of funds but also against the religious status which impels the religious use. They argue that the framers of the Constitution were aiming to protect religious "exercise," not just "religious belief."
The Free Exercise Clause of the First Amendment of the US Constitution "protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a 'public morals' or a 'compelling' governmental interest," according to the United States Court's website.
The State of Maine argues that the tuition program is unique and only intended to help students in school districts without public secondary schools with the equivalent of the education they would have received in a public school, according to SCOTUSblog. The state believes that public education should be "nonsectarian" and expose children to different viewpoints and does not promote a particular faith or belief system. The point of the tuition program is to provide only the equivalent of public school education.
A number of Jewish organizations have filed legal opinions, known as amicus curiae, in the case in favor of forcing the State of Maine to provide the program for religious schools as well.
The National Jewish Commission of Law and Public Affairs and other Orthodox Jewish organizations, including Agudath Israel of America and the Rabbinical Council of America, has filed an amicus curiae in the case, saying that the Maine program is unconstitutional as it requires parents who send their children to schools deemed "sectarian," such as religious schools, to pay for both the religious studies and state-mandated secular studies provided at the school.
"Imposing such a financial burden on parents who are obliged by religious conscience to enroll their children in 'sectarian' schools is an obvious burden and disincentive for religious observance. It requires otherwise committed Jewish parents to forego the intensive religious education that their faith prescribes. Hence the Maine law is unconstitutional under the Free Exercise Clause."
The Union of Orthodox Jewish Congregations of America also filed amicus curiae quoting Espinoza v. Montana Department of Revenue, stating "[t]he right to be religious without the right to do religious things would hardly amount to a right at all." Espinoza v. Montana Department of Revenue was a case in which the Supreme Court ruled in 2020 that Montana cannot exclude religious schools from receiving tax credit-funded scholarships under its school choice program.
The Union of Orthodox Jewish Congregations of America argued that interpreting the Free Exercise Clause as allowing states to discriminate against religious uses of government aid "would open the door to systemic discrimination against the Orthodox Jewish community."
The amicus curiae claimed that under an attempt to distinguish between the status of an organization and the way it uses funds "Orthodox Jews could face exclusion from government funding programs related to healthcare, building safety, social services, and myriad other activities that Orthodox Jews regard as religious obligations and carry out in accordance with Jewish law. Religious communities that give religious observance a narrower scope, meanwhile, would not face such discrimination."
The amicus curiae added that this would allow governments to both discriminate against religion generally and burdensome faith communities more than others.