Never has a piece so completely failed to engage with its actual critics– the side stepping done here on the actual impact on protection from discrimination is incredible.

A Black poor student is being served by a Catholic School with government support because the public system has been starved of resources by regressive state tax schemes compounded by new exit rights for individuals starving the system further. They happen to be non-cis gendered. Their state mandated and supported education now denies their identity and their ability to practice that identity because religious groups define membership. Their teacher, who teaches math, turns out to be non-binary and fired because during period 1 math they say a prayer.

The only black member of the entire school staff wants to teach The New Jim Crow in their social studies class, and as a result is fired, because the teacher is a lunch monitor and grace is said before meals. The state pays to teach them there is a scientific, rather than political, controversy on climate change and evolution. They are unable to request the use of accurate pronouns. When they are bullied and harassed about their gender, they are told they are in the wrong.

They are a minor. They are placed where their parents demand. Their options are limited, because the system has been designed to hollow out all other options. They are not empowered to choose their association or membership at all.

What if they are Jewish?

Religious groups should get to choose their membership and teach their doctrine, freely. Their entanglement in public purposes, with public money, involving minors is their choice. What the courts have done is secured the rights of religious groups over all individual rights.

If these groups solely engaged in voluntary religious activity with their own money and purposes, I’d have concerns, but they’d be minor. When they are engaging in state mandated education with state money in areas where there’s no functional choice… well.

The Lemon Test is a good standard and we should take excessive government entanglement seriously. Unfortunately, our response is to allow religious groups to do whatever they want on behalf of the state because they are religious, rather than excise religion from state action.

I love civil society. I have the same small c conservative appreciation for volunteer association and lots of distrust of large, concentrated power and coordination. But this reframing of the conversation is too divorced from the critical reality