“To exercise your religion… you have to not only have some sort of religious status but also use your time, effort, and resources to practice your religion.”
Join our One on 1 conversation with Ilya Somin, a professor of law at George Mason University.
Somin discusses the ideas behind his article, “Why the Supreme Court got it right in the Maine Voucher Case,” published on June 21, 2022.
Ilya Somin: I would finally just note that if you just look at the text of the first amendment, it doesn’t say um merely that it protects religion or religious status, it says it protects the free exercise of religion and to exercise your religion, at least in most cases you have to not only have some sort of religious status, but also use your time, effort, and resources to practice your religion.
Max Nosbisch: Hello, everybody! I am Max Nosbish, manager of visitor experiences here at the First Amendment Museum located in Augusta, Maine, where we help people understand and inspire them to live and love their first amendment freedoms. Thanks for tuning in to this one on one interview. Today I’m joined by Ilya Somin, who is a professor of law at George Mason University. Thank you for joining us.
Ilya: Thank you for having me.
Max: Why do you think the first amendment is important- you know- what are its goals and purposes?
Ilya: The first amendment has multiple different goals and purposes, but basically, it protects people’s right to freedom of speech. It also protects other related freedoms, such as freedom of assembly and the like. Uh, and most relevant for our purposes today, it protects the free exercise of religion while also protecting against the establishment of religion by the government uh, and I think as with freedom of speech, uh that is both because freedom of religion is intrinsically valuable, but also because if the government starts undermining freedom of religion, it could have harmful societal consequences uh of various kinds.
Max: The reason why we ask you to participate and why we’re actually talking to you is because you recently wrote an article titled Why the Supreme Court got it right in Maine voucher case. Could you tell us- for those who may not know- what is the Maine Voucher Case and, what is this article? Why did you write it?
Ilya: So, this case arose out of a relatively small program in the state of Maine, which is a lot of remote communities that are thinly populated, and some of them are so thinly populated that they can’t support their own public schools. So in places like that, the state of Maine has a voucher program uh which gives uh people who live in that area if they have school-age children able to uh subsidize their attendance at private schools or in some cases also in other public school districts, and while the program as structured before this case did not categorically exclude all religiously affiliated schools, it did exclude what they call sectarian schools which they essentially defined as any schools that in any way promote religion or their religious identity in the (inaudible) curriculum and plaintiffs who are parents in Maine who wanted to use the voucher program to send their kids to religious schools, they filed a case arguing that this is discrimination on the basis of religion and therefore a violation of the free exercise clause or first amendment.
Max: So what is the crux of your argument in the uh- in your article you wrote- uh, how do you think the supreme court got it right in this case?
Ilya: So, even before this case, the supreme court had previously ruled in the Espinosa case in 2020, uh that it is impermissible and a violation of the first amendment for the government to discriminate against religious schools and voucher programs simply because they’re religious. So the defenders of the program in this case and also descending justice in the supreme court, they said this is different because we’re not discriminating on the basis of religion as such, we’re discriminating on the basis of the religious use of the money. So, if a private school that is quote un-quote sectarian gets the money, it might use it for religious purposes, and that’s discriminating not against the fact that they are religious but that they might use it for religious purposes, and the supreme court majority I think for a very good reason rejected this so-called religious status versus religious use distinction uh because ultimately its kind of non-sensical and breaks down. First of all, any private school which is religious in more than just its name is gonna promote its religion at least to some degree, and second- in virtually every other context, it’s pretty obvious that discrimination based on this use distinction would be unconstitutional. I would finally just note that if you just look at the text of the first amendment, it doesn’t say um merely that uh it protects religion or religious status, it says it protects the free exercise of religion and to exercise your religion, at least in most cases you have to not only have some sort of religious status, but also use your time, effort, and resources to practice your religion. So I think for that reason the supreme court got this right because there’s no real distinction between discriminating based on religion and discrimination based on so-called religious views.
Max: what would- what are some of the arguments of people who say, “no uh respectfully we disagree what-we think that the supreme court got it wrong.”. What is their perspective, as far as you understand it?
Ilya: So, there’s a whole bunch of different arguments, but some people say that if the government gives money to religious institutions, that that violates the establishment clause. That is, and if that means that the government is uh supporting or establishing uh this religion, and I think that would be true if the government says, “here’s a pot of money which we’re specifically allocating for religious purposes, and specifically promotes the Catholic Church, or the Mormon Church or a synagog or something, or even if we want to promote religious institutions, but not give similar benefits to comparable secular ones.”. But mere non-discrimination in the provision of a generally publicly available uh service uh to everybody, uh, that I think is not the establishment of religion. If it was, uh then it would be the establishment of religion every time uh we gave welfare benefits for food stamps, say to religious people who would then use them in religious ways, say, to buy kosher food in the case of an Orthodox Jew. Similarly, if the fire department protects a church against being burned down or a police department protects against being broken into, then you could say, “that’s the establishment of religion”, because they’re protecting an institution, and a protection then facilitates that religious institutions religious activity and so forth so I think that uh nondiscrimination is not establishment.
Max: So how do you use the first amendment in your own life, Whether it’s personally or professionally?
Ilya: So, writing articles is in fact, one way that people can use their first amendment rights obviously, it protects us when we criticize the government. As an atheist, I also make use of the principle of non-discrimination on the basis of religion that I mentioned earlier in that obviously atheists are one of the least popular religious minorities in the U.S., and so we, in a discriminatory regime, we may be more likely to be discriminated against than uh most other groups would be.
Max: Uh, alright, um do you have anyway- um anything you wanna promote, anything you wanna get out to anybody who may be watching this?
Ilya: Uh it’s dangerous to let professors engage in self-promotion because they’ll never stop-
Max: -but please-
Ilya: -uh but let me just mention a couple things. I have a longer piece in the Deseret News which is available for free online, which goes into some of the issues in this case in more detail. I write regularly for the Volokh conspiracy blog V-O-L-O-K-H at the reason website, where we write about a variety of legal and policy issues, uh and somewhat relevant to this case, I have a book called Free to Move; foot voting, migration, and political freedom.
Max: Great, professor Somin. Thank you so much for joining us.
Ilya: Thank you so much for having me.