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As entrenched in the Establishment and Free Exercise Clauses of the First Amendment, the separation of church and state in the United States is best understood as a dividing barrier between “the wilderness of the world” and the “garden of the church” as quoted by Roger Williams, the founder of Rhode Island. Recognizing the unique and personal nature of religion, the Founding Fathers ensured freedom of religion by establishing the Religion Clauses within the First Amendment. A principle rooted deeply in history, today church-state separation has only become more controversial with the increasing diversity of citizens and ever-evolving views on secularism.

Lemon v. Kurtzman (1971)

In 1968, Pennsylvania adopted a statute enabling the state to provide funding for nonpublic, nonsecular schools teachers’ salaries and instructional items such as textbooks. Similarly, the state of Rhode Island adopted a statute in 1969 to provide financial support for nonpublic elementary schools by assisting with teachers’ salaries. Appellant Alton J. Lemon, a member of the ACLU, and father of a child attending a Pennsylvanian public school, volunteered to represent Pennsylvanian citizens and taxpayers. At the core of Lemon v. Kurtzman was the following issue: Do statutes providing state funding for nonpublic and nonsecular schools violate the Establishment Clause of the First Amendment?

At an 8-0 majority against the Pennsylvanian statute, the Court found the statute violated the Establishment Clause. In its decision, the Court developed the three-prong Lemon test determining that  a statute must a) have a nonreligious, legislative purpose, b) its principal effect must not hinder or promote religion, and c) must not facilitate excessive government entanglement with religion. The Court concluded that the Rhode Island statute for funding caused government entanglement due to the religious roots and nature of the nonsecular schools. In its decision, the Court recognized the risks that teachers employed at such schools posed towards secular aspects of elementary education. In the case of the Pennsylvanian statute, the Court held that it caused government entanglement by requiring inspections and regulations to ensure that teachers did not have an ideological role in childrens’ education and providing financial aid to religiously-affiliated institutions. For these reasons, the Court found that the Rhode Island and Pennsylvanian statutes blurred the line of church-state separation by establishing a relationship and causing government intervention in religious activities and organizations.

In general, Lemon v. Kurtzman was a clear effort to draw distinctions between church and state. Rhode Island and Pennsylvania’s statutes that provided financial aid to nonsecular schools for teachers’ salaries were, from the perspective of the Court, a danger that could intensify religion-based political strife endangering church-state separation.

Employment Division, Department of Human Resources of Oregon v. Smith (1990)

In 1989, two counselors, Alfred Smith and Galen Black, who were employed by a private drug rehabilitation organization, were dismissed from their jobs for ingesting a drug called Peyote, known to be strong hallucinogen, during observance in a religious ceremony conducted by the Native American Church. Shortly after their dismissal, both filed for unemployment benefits but were denied because their dismissal was for work-related misconduct. Essentially, the question raised with Oregon v. Smith was the following: Can a state withhold unemployment compensation or benefits from a worker dismissed for the usage of illegal drugs for religious purposes?

In a 6-3 majority, the Court determined that one’s religious affiliations cannot relieve them from compliance with a neutral, valid law prohibiting conduct that the government may regulate. As written by Justice Antonin Scalia, the case required an examination of whether the Free Exercise Clause enabled Oregon to criminalize sacramentally-used Peyote based on Oregon’s general criminal prohibitions of that drug’s usage, ergo, permitting Oregon to refuse unemployment benefits. Upon examination of Oregon law on controlled substances, Oregon mandates that one may not knowingly or deliberately be in possession of a controlled substance unless the substance was prescribed through a medical practitioner; those violating this clause, specifically, those who engage in the use or possession of Peyote, are guilty of a Class B felony. Under the premises of questioning the legality of sacramental consumption of Peyote in Oregon, the Court remanded the case for further proceedings. The Oregon Supreme Court maintained that religious usage of Peyote fell under the prohibitions of Oregon law, not exempting sacramental consumption of Peyote.

Oregon v. Smith was monumental in impacting religious free exercise law. Prior to Oregon v. Smith and Lemon v. Kurtzman, the Court ruled in Sherbert v. Verner (1963) that the government was able to restrict free exercise rights in the case that the regulations underwent close surveillance and observation through a compelling interest test, in turn pressuring the weight of state laws. In Oregon v. Smith, the Court determined that one’s First Amendment rights did not exempt individuals from complying with generally applicable laws, strengthening the legitimacy of government regulations and laws. Oregon v. Smith set a precedent for similar cases concerning whether neutral, generally applicable laws, were a violation of free exercise rights and represented another step from Lemon v. Kurtzman, drawing a distinct line between the church and state.

Carson v. Makin

Maine’s tuition assistance program enabled school-aged children zoned in districts with no access to public schooling to attend private and public schools in other districts for no cost. The state later made modifications so that tuition assistance would not apply to nonsecular schools under the premise that allowing tuition assistance to fund religious schools would contravene with the Religion Clauses and infringe on church-state separation. 38 years after said modifications, a group of parents zoned in districts without public schools that sent their kids to religiously-affiliated private schools through Maine’s tuition assistance program filed a complaint against the state in a district court, contending that the condition prohibiting tuition assistance for nonsecular schools violated their First Amendment rights and the Free Exercise Clause. The issue in Carson v. Makin was whether a state law prohibiting the usage of state tuition assistance programs for sectarian schools violated the Religion Clauses or Equal Protection Clause.

In a 6-3 majority, the Court ruled that Maine’s nonsectarian requirement for parents receiving tuition assistance to send their children to schools in different districts violated the Free Exercise Clause. An examination of Maine’s requirements for eligibility for tuition assistance found that to be “approved,” schools were required to be accredited by a New England association of schools and colleges or separately approved for attendance purposes. Through further consideration, the Court reflected upon their former decision and determined that the exclusion of religious observers from otherwise accessible public benefits was a violation of the Free Exercise Clause. The Court’s decision in Carson v. Makin is largely impactful, particularly because it enables the usage of public funds, specifically taxpayers’ dollars, for religious education, which is a form of religious activity. 
In a separate dissent, Justice Sonia Sotomayor expressed that the decision of Carson v. Makin was a “[dismantling of] the wall of separation between church and state that the framers fought to build.” On the other hand, in the majority decision Chief Justice John Roberts articulated that preventing those who participate in religious activity from receiving otherwise accessible public benefits was a violation of the Free Exercise Clause. In the eyes of religious groups and those supportive of the decision, Carson v. Makin was a win that would strengthen religious rights. However, in the eyes of critics and opposers, the decision of Carson v. Makin was a devastating blow that would erode church-state separation. A sharp contrast from the Court’s long history of establishing strict lines between the church and state, Carson v. Makin represents the evolving considerations and views of this contemporary Supreme Court