Free Exercise Trumps “No Establishment”

If you’re looking for a fairly balanced overview of this case, I suggest starting here. If you’re looking for pithy, insightful analysis, on the other hand, you’re in the right place. The second part of it, anyway.

Last time, we got through opening remarks and personal disclaimers, gave a little background on the Amendments involved, and covered the Court’s introduction to the facts of the case. Chief Justice Roberts summarized the lower courts’ decisions to side with the state. Basically, they’d reasoned, Maine’s plan was intended to offer a proxy of sorts for traditional public education, and thus it was perfectly constitutional to exclude religious schools from the program.

Here’s how the Chief Justice and his cabal respond:

The Free Exercise Clause of the First Amendment protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions” (Lyng v. Northwest Indian Cemetery Protective Assn., 1988). In particular, we have repeatedly held that a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits. (See Sherbert v. Verner, 1963…; see also Everson v. Board of Ed. of Ewing, 1947…) A State may not withhold unemployment benefits, for instance, on the ground that an individual lost his job for refusing to abandon the dictates of his faith…

He then recaps Trinity Lutheran v. Comer (2017) and Espinoza v. Montana (2020) by way of demonstrating the Court’s recent fondness for free exercise, even when it means state funding of religious organizations.

The “unremarkable” principles applied in Trinity Lutheran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” By “conditioning the availability of benefits” in that manner, Maine’s tuition assistance program – like the program in Trinity Lutheran – “effectively penalizes the free exercise” of religion.

Roberts acknowledges that there are times when a state may be justified in excluding religious organizations from general laws or benefits, but that “this is not one of them.” For good measure, he brings in the issue of “parent choice” from one of the “voucher”-style cases the Court has tackled in recent decades.

As noted, a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause. (See Zelman v. Simmons-Harris, 2002.) Maine’s decision to continue excluding religious schools from its tuition assistance program after Zelman thus promotes stricter separation of church and state than the Federal Constitution requires…

But as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” … Justice Breyer stresses the importance of “government neutrality” when it comes to religious matters, but there is nothing neutral about Maine’s program. The State pays tuition for certain students at private schools – so long as the schools are not religious. That is discrimination against religion. A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.

That’s the part that’s going to bust open the dam sooner rather than later. In and of itself, it’s entirely reasonable and constitutionally sound. As far back as Everson v. Board of Education (1947) when the state of New Jersey reimbursed parents for bus fare as part of helping their kids get to school, the Court has been fine with a “general benefit” that just happens to benefit religious organizations as well. The city repairs roads which help people get to church. The police (theoretically) protect the faithful from bad guys while they pray, chant, or sing. Fire departments respond if a mosque or temple is ablaze. The Court insists this is the same basic thing.

Except that it’s not.

General Benefits vs. Funding Indoctrination

Enabling an institution to do whatever it does by providing public services is as neutral as government can get. Those road crews don’t jump in and do repairs on the sanctuary or mosque as part of their job because that would be “establishment” – active support of specific religious activities or institutions. For them to avoid maintaining any streets which pass near a church, however, would be to deny “free exercise” – actively making it difficult for believers to partake in whatever partakery is at hand.

What the Court has done in Carson v. Makin is a substantial step further. They’ve demanded that states providing any sort of choice or flexibility in their school systems must offer comparable support for religious indoctrination in place of some of that education. They’re requiring tax dollars designated for preparing young people to function competently in a modern, diverse, complex world, be redirected to teach homophobia, science denial, sexism, misogyny, alternative history, or whatever else might be trending that week in right-wing curriculums.

A Catholic hospital is primarily a hospital; it simply happens to have a lot of Catholics working there and easy access to clergy should one be so inclined. It is unlikely, however, that the medical care itself will be substantially altered by the theology of those in charge. (I realize there are some exceptions – particularly when it comes to reproductive rights – but I’m speaking in general terms.) When Medicare reimburses the hospital for medical services provided to qualified patients, the government is playing nicely with religion. It’s neither promoting Catholicism in any meaningful way nor excluding otherwise qualified health care professionals based on their beliefs.

You’ll notice, however, that there aren’t many hospitals run by the Jehovah’s Witnesses or Buddhists. Imagine that there were, and that you were rushed into the ER at either one after a serious accident. The JWs would no doubt do their best to care for you, but they don’t believe in blood transfusions, so… bad luck, there. The Buddhists believe that suffering is part of life and must be met with acceptance rather than complicated with medical technology and all that rushing around and beeping. Now imagine that the Court has just determined that if Medicare is going to pay for SECULAR treatment (like blood transfusions or life-saving technology), it must be just as willing to pay for ALTERNATIVE treatments like prayer, mediation, and denial of such worldly approaches. In fact, there will now be LESS money to pay for the worldly approaches so that your tax dollars may be spread more equitably among those freely exercising their own approaches to healing and happiness – snake oil, bloodletting, Ayurveda, trepanation, etc.

It’s an extreme example, sure – and I promise you I have absolutely nothing against the JWs or Buddhists. I just don’t want to pay either group out of my tax dollars to provide their own alternatives to modern medical care. Nor do I want to pay evangelicals to educate kids who a mere decade from now will be voting and making world-altering decisions about health care, the role of women in society, civil rights, foreign relations, and whether or not Jesus wants us to beat the sh*t out of the gay kids.

Did I mention that I feel rather strongly about this?

Private Schools Aren’t Meant To Serve Everyone

The lower courts accepted Maine’s use of this program as essentially a substitute for traditional public schools, but Roberts isn’t buying that even a little…

The First Circuit held that the “nonsectarian” requirement was constitutional because the benefit was properly viewed not as tuition assistance payments to be used at approved private schools, but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” …

To start with, the statute does not say anything like that. It says that an SAU without a secondary school of its own “shall pay the tuition . . . at the public school or the approved private school of the parent’s choice at which the student is accepted.” The benefit is tuition at a public or private school, selected by the parent, with no suggestion that the “private school” must somehow provide a “public” education.

He’s not wrong. This was clearly the weak point in the state’s argument to begin with based on the direction the Court has been going with these sorts of issues for the past several decades. I don’t agree with many of those earlier decisions, but given that they’ve become pretty solid precedent, Maine should have seen this coming.

This reading of the statute is confirmed by the program’s operation. The differences between private schools eligible to receive tuition assistance under Maine’s program and a Maine public school are numerous and important. To start with the most obvious, private schools are different by definition because they do not have to accept all students. Public schools generally do. Second, the free public education that Maine insists it is providing through the tuition assistance program is often not free. That “assistance” is available at private schools that charge several times the maximum benefit that Maine is willing to provide.

Ironically, these are two of the primary arguments against “school choice” or “vouchers” as a valid means for improving education for all kids through competition – traditionally one of the primary talking points of the same folks currently giddy over this decision. Private schools always have and always will pick and choose their students, making comparisons to public schools largely meaningless. The “choice” being made is that of each school “choosing” who it will and won’t accept – NOT of parents choosing any school they like. Vouchers make private religious education more affordable for those wealthy enough to pay the difference; poor people are still left choosing from what their coupons will buy.

This decision seems likely to increase that disparity, beginning in Maine.

Moreover, the curriculum taught at participating private schools need not even resemble that taught in the Maine public schools… Participating schools need not hire state-certified teachers… And the schools can be single-sex… In short, it is simply not the case that these schools, to be eligible for state funds, must offer an education that is equivalent—roughly or otherwise—to that available in the Maine public schools.

I don’t believe the Chief Justice intended to echo some of the most common arguments against what counts as “school choice” in many states. He’s simply refuting the idea that these private school options are in any way “just another version of the state providing a public school education.”

Which to my way of thinking, of course, is the whole problem.

But the key manner in which the two educational experiences are required to be “equivalent” is that they must both be secular. Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools.

Well, yes. Exactly.

The (Former) Wall Of Separation

This apparent “gotcha” is, in fact, the whole point. States don’t traditionally support religious education because they’re the state. Besides, prior to last week the establishment clause said that was a big no-no.

It’s this next bit, however, that might be my favorite of the entire majority opinion:

Indeed, were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless. By Maine’s logic, Montana could have obtained the same result that we held violated the First Amendment simply by redefining its tax credit for sponsors of generally available scholarships as limited to “tuition payments for the rough equivalent of a Montana public education” – meaning a secular education. But our holding in Espinoza turned on the substance of free exercise protections, not on the presence or absence of magic words. That holding applies fully whether the prohibited discrimination is in an express provision like {the one in Maine} or in a party’s reconceptualization of the public benefit.

The thing is, if Montana’s voucher program had specified that religious schools were eligible as long as they made some token effort to provide “the rough equivalent of a Montana public education,” we could have avoided all sorts of problems. I might not love the idea of paying religious institutions to perform state functions, but it would at least maintain the principle that public education is intended to provide young people with a fairly consistent body of skills and knowledge and a general understanding of civilized society and their place in it.

Arguments about the fundamental purposes or priorities of public education are varied and endless, but whatever else schools are designed to do, we at least hope they prepare young people to function capably in the world. We hope they’re able to become educated voters, to form meaningful relationships, and to pay their bills and stay out of jail. Some approaches to religion support these goals, many others do not, but public schools make every effort to fulfill these functions without coloring too far outside the lines. It’s impossible to be effective and avoid ANY moral compass in a school setting; if we can’t lay some ground rules about honesty and responsibility and not being horrible to one another, there’s no way we’ll get far teaching them Algebra II. But we try to stay out of anything clearly in the purview of faith.

Religious schools do not return the favor. For many, their faith requires rewriting history, devaluing science, and the labeling of numerous “undesirables.” Free exercise has long meant the state doesn’t prevent those who so choose from indoctrinating their children in this way, whatever the long-term consequences, but for the past half-century at least the rest of us haven’t had to pay for it.

Until now.

The primary impact of Carson v. Makin won’t be limited to rural Maine. In this decision, the Court has stripped away any lingering distinctions between public funding of public good done by religious institutions and public funding of religious instruction, evangelism, or indoctrination. According to this Court, in fact, any distinction between the two is irrelevant. If a state supports a secular effort at promoting the general welfare, it must support religious endeavors which claim even a rough, unverifiable equivalence to those same goals.

It’s hard to imagine this will remain limited even to “school choice” programs. In principle, there’s no reason it should.

As of last week, it is no longer constitutional to distinguish between peer-reviewed history and the Book of Genesis or between medical science and mysticism when it comes to government funding. Public schools will continue to face heavy scrutiny and regulation, while all private alternatives must do to avoid accountability is include religious indoctrination as part of their function. According to the majority of justices, this places them above scrutiny by government bodies at any level thanks to the protections provided by the First Amendment.

I guess we should be glad it’s still doing SOMETHING.

A few days ago, the Supreme Court announced its decision in Carson v. Makin, a case involving state support of religious education in rural Maine. The short version is that states which offer any sort of support for private schooling or alternatives to state-run public schools cannot deny equivalent support to religious institutions claiming a comparable role. These institutions need not follow state curriculums or abstain from indoctrination. They may pick and choose their students on any basis they like and may teach what they like, however they like, and still get paid by the state for each student they choose to accept.

The language of the decisions does not specifically prohibit states from instituting some general academic standards; the two schools in question were both on the “approved” list of state options. (They “count” as schools for purposes of students earning a diploma but did NOT qualify for state reimbursement due to their religious focus.) Then again, the Court showed little interest in the quality of education provided by any of the schools discussed in this case. Unlike in many previous cases (particularly Zelman v. Simmons-Harris, 2002), which validated an Ohio “vouchers” program largely based on the apparent underperformance of public schools in the state and established “parent choice” and the constitutional “breaker switch” between government funding and religious application), the issue isn’t even discussed.

I know, I know – “academic quality” isn’t a First Amendment issue. Religious freedom IS. Nevertheless, previous Courts have often demonstrated at least token concern for outcomes – for the likely impact of various decisions either way. This particular Court is so enamored with taking “free exercise” to Chuck E. Cheese’s that it’s left “establishment” locked in the back seat without even cracking the windows.

Also, I may have strong feelings about this one.

I wrote about this case a few days ago and linked to some very good breakdowns of the decision and its likely impacts. Here, I’d like to highlight a few specific elements from the majority opinion, written by Chief Justice John Roberts. This may end up broken into several parts depending on how carried away I get.

Most of the cases cited by Roberts, as well as those referenced by Justices Breyer and Sotomayor, are covered in some detail in “Have To” History: A Wall of Education, which I’m sure you’ve all recently ordered and read in preparation for this term. If so, you know that when I’m writing for publication, case summaries are relatively balanced and my tone largely rational. My goal is to offer useful references and accessible explanations to a wide possible audience.

That’s not always the case here on the blog. You have been warned.

A Little Background…

The First Amendment to the U.S. Constitution contains six specific protections, two of which are related to religion. The “Establishment” Clause says government cannot support one religion over another or promote the idea of religion over non-religion; the “Free Exercise Clause” says government cannot target or hinder a specific religion or religion in general. These first two clauses are often in tension with one another, but taken together clearly indicate a desire by the Framers that government do its best to avoid promoting OR hindering religious beliefs or behaviors.

The phrase “a wall of separation between Church & State” comes from a letter by President Jefferson to the Danbury Baptists; while not part of the Constitution, it’s been cited so often by various Supreme Court decisions that it might as well be. There are a handful of influential voices, however, who really hate this metaphor and believe it misrepresents the intent of the First Amendment.

The Fourteenth Amendment, passed shortly after the Civil War, requires states to recognize most of the same rights guaranteed on the federal level by other amendments – or at least that’s how it’s come to be understood. The application of principles found in the Bill of Rights to state or local government via the Fourteenth Amendment is known in legal circles as “incorporation.” It’s why the Supreme Court will hear a case involving Maine citizens and Maine public schools when it involves a fundamental right like those covered in the First Amendment.

The Fourteenth Amendment also explicitly prohibits any state from denying “to any person within its jurisdiction the equal protection of the laws.” This one can be a bit redundant, but it’s often thrown in with whatever specific complaints are at the heart of cases like this one to emphasize the idea of unfair treatment – in this case, against the families wishing to sent their children to religious high schools.

Alright, let’s get to it. These excerpts of the Supreme Court’s written opinion have been edited and formatted for readability. I’ve done my best to maintain appropriate context and intent. You can read the full decision as originally written here.

The Majority Opinion (Some Of It, Anyway)

Chief Justice Roberts, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett:

Maine’s Constitution provides that the State’s legislature shall “require . . . the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools.” In accordance with that command, the legislature has required that every school-age child in Maine “shall be provided an opportunity to receive the benefits of a free public education” and that the required schools be operated by “the legislative and governing bodies of local school administrative units.” But Maine is the most rural State in the Union, and for many school districts the realities of remote geography and low population density make those commands difficult to heed. Indeed, of Maine’s 260 school administrative units (SAUs), fewer than half operate a public secondary school of their own.

Maine has sought to deal with this problem in part by creating a program of tuition assistance for families that reside in such areas. Under that program, if an SAU neither operates its own public secondary school nor contracts with a particular public or private school for the education of its school-age children…

Get used to seeing “SAU” for “school administrative units.” This is a term used to avoid getting bogged down by any distinctions between “districts” or “counties” or “school corporations,” etc.

Notice the root of the issue here is that Maine doesn’t actually have public high schools operating in something like half the state. There are logistical reasons for this (who knew Maine was THAT rural?), but it’s an important issue because it means parents in those areas are effectively required to utilize “school choice” if they want their children to receive an education (and they’re not up for homeschooling). Once “parent choice” is in the mix, it’s much more difficult for the state to limit which institutions can and can’t take those “vouchers” – in whatever form the funding takes.

To be “approved” to receive these payments, a private school must meet certain basic requirements under Maine’s compulsory education law. The school must either be “currently accredited by a New England association of schools and colleges” or separately “approved for attendance purposes” by the Department. Schools seeking approval from the Department must meet specified curricular requirements, such as using English as the language of instruction, offering a course in “Maine history, including the Constitution of Maine . . . and Maine’s cultural and ethnic heritage,” and maintaining a student-teacher ratio of not more than 30 to 1… In schools that qualify for the program because they are accredited, teachers need not be certified by the State and Maine’s curricular requirements do not apply…

Note that Roberts is summarizing the existing legislation in Maine, not issuing requirements. He covers a few more details and points out that the state does not automatically exclude schools associated with a religious institution but instead considers their mission and methods. In other words, Maine apparently made a distinction between schools which happened to be religious and those actively promoting specific doctrines, values, and opinions of others as part of their daily efforts.

In 2018, petitioners… alleged that the “nonsectarian” requirement of Maine’s tuition assistance program violated the Free Exercise Clause and the Establishment Clause of the First Amendment as well as the Equal Protection Clause of the Fourteenth Amendment. Their complaint sought declaratory and injunctive relief against enforcement of the requirement…

While petitioners’ appeal to the First Circuit was pending, this Court decided Espinoza v. Montana Department of Revenue (2020)…

I told you you should have read the book, didn’t I? Here’s the short version of Espinoza…

Montana provided tax credits to donors who funded “Student Scholarship Organizations,” which would in turn help pay private school tuition for qualifying families. (Some states like to further obfuscate these by calling them “educational savings accounts” or some other such nonsense.) Because Montana’s state constitution prohibits the use of public money to support religious institutions (a provision common to many state constitutions and known informally as the “Blaine Amendment”), the Montana Department of Revenue declared that the program must exclude religious schools. The Court determined that excluding religious schools from the program violated the Free Exercise Clause of the First Amendment. Any program available to other institutions must be available to religious groups on the same terms, no matter what state constitutions say.

Because smaller, less oppressive government means crushing state autonomy whenever it serves the agenda of entrenched economic, cultural, and political power.

The First Circuit offered two grounds to distinguish Maine’s “nonsectarian” requirement from the no-aid provision at issue in Espinoza. First, the panel reasoned that, whereas Montana had barred schools from receiving funding “simply based on their religious identity – a status that in and of itself does not determine how a school would use the funds” – Maine bars BCS and Temple Academy from receiving funding “based on the religious use that they would make of it in instructing children.” Second, the panel determined that Maine’s tuition assistance program was distinct from the scholarships at issue in Espinoza because Maine had sought to provide “a rough equivalent of the public school education that Maine may permissibly require to be secular but that is not otherwise accessible.”

Lawyers arguing for Maine had two basic choices: insist that the Court overturn its own recent precedents, or insist that this case was significantly different than those cases. Apparently, they focused on the latter and persuaded the lower courts of this distinction. The First Circuit determined that unlike in cases involving “school choice” or “vouchers” or “educational savings accounts” or whatever, Maine COULD limit where its tax dollars were being spent because the schools in question were serving as proxies for traditional public schools.

The Maine Problem

In my humble opinion, this was the weak link in the state’s reasoning. Maine unwittingly offered activists a technical crack in a much larger dam, and this ideologically driven Court is perfectly happy to play sledgehammer. That’s why conservative talking heads around the country are able to shake their heads in smug amusement at the “overreaction” by the left to this decision. They know the dam is coming down. We know the dam is coming down. The Court has been looking for the opportunity to bring the dam down for years now and said as much to anyone paying attention. In the meantime, however, we’ll have to endure the mockery and faux pity of those working so hard to knock down this particular wall as they laugh at us for thinking the dam is about to come down when of course that’s just silly and not what this case says at all.

Don’t let it get to you; in a few years, when the wall is largely washed away, these same folks will rewrite the timeline in such a way as to either condemn the wall having been built in the first place or to blame us for knocking it down while those on the right worked vigorously to defend it. Might as well roll with it, baby.

Of course, a crack doesn’t require elimination of the entire wall. Had they wished, the Court could have taken a far more moderate approach. We’ll pick up there next time.