God and the Justices, in Court Once Again

The U.S. Supreme Court in the last few terms has been carving a legacy of religion-favored rulings in such areas as employment, school funding, health care, and more. It’s apparently not done yet.

The justices already have agreed to decide in the new term a case that raises a challenge to a Maine school funding program, and they have three other cases raising different religion issues that await a first look by the justices.

The complaints coming to the high court recently often fall into one of two categories. One includes religious organizations seeking exemptions from generally applicable laws, such as public accommodation laws banning discrimination or imposing Covid-19 restrictions. The other involves religious organizations seeking inclusion in government funding programs.

The Maine case, which is likely to be argued this winter, falls into the government program category. The case, Carson v. Makin, was brought to the court by the parents of students who either attend a religious school or who want to attend a religious school. The parents are represented by lawyers with the libertarian Institute for Justice, which has been in the forefront of the so-called school choice movement.

In predominantly rural Maine, more than half of the state’s 260 local school administrative units do no operate public secondary schools. To reach those students, Maine uses private schools to deliver a public education in place of public schools through a tuition assistance program.

Maine law allows only nonsectarian schools to receive public funds for tuition purposes. The state, according to its attorneys, has a “compelling interest” in ensuring that students at those private schools receive instruction roughly equivalent to what they would get in Maine’s public schools.

 “To be clear, religious organizations that are willing to provide a nonsectarian education (i.e., an education comparable to the education students would receive if their community operated a public school) are eligible to receive public funds through Maine’s tuition program,” the state argues.

But the parents in this challenge argue that the exclusion of sectarian schools violates the First Amendment’s religion clauses (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”) and the 14th Amendment’s equal protection guarantee.

They contend that private schools that are “only nominally religious” can participate in the tuition-assistance  program. “Yet a student cannot attend a Jewish day school, her Catholic parish’s school, or an Islamic school with her tuition assistance benefit,” the parents argue.

The Supreme Court rarely gets a case of first impression. The cases coming to the justices usually build upon earlier decisions, expanding them, clarifying them, or answering questions deliberately left unanswered. The Maine case is no different.

In 2017 in the case Trinity Lutheran Church v. Comer, a 7-2 majority of justices ruled that a Missouri program offering grants to eligible nonprofit organizations for repaving playgrounds with recycled tires violated the First Amendment free exercise clause by barring religious-owned or controlled applicants. The discrimination, the majority said, was based on the applicant’s status.

“The express discrimination against religious exercise here is not the denial of a grant, but rather the refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant,” Chief Justice John Roberts Jr. wrote for the majority. It was status-based discrimination.

But in a footnote, Roberts expressly left open addressing “religious uses of funding or other forms of discrimination.”

Three years later in Espinoza v. Montana Dept. of Revenue, a 5-4 majority struck down Montana’s state constitutional ban on aid to religious institutions. The majority ruled it discriminated against religious schools and families who wanted to use a tax-credit-based scholarship program.

Quoting its Trinity Lutheran decision, the majority, led again by Roberts, said, the free exercise clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.”

Justice Neil Gorsuch, as he did in Trinity Lutheran, questioned the majority’s distinction between religious status and religious uses. “The right to be religious without the right to do religious things would hardly amount to a right at all,” Gorsuch wrote.

The Maine case steps right into that discussion about religious status versus religious uses. The parents in the case argue that the Constitution is violated when they cannot use the student aid funds for schools that provide religious or sectarian instruction.

“States should not be permitted to withhold an otherwise available education benefit simply because a student would make the private and independent choice to use that benefit to procure an education that includes religious instruction,” they argue.

A lower federal appellate court ruled that the Maine tuition program, was not status-based discrimination because, among other reasons, a school’s association with a religious institution was not dispositive of its sectarian nature. The focus, the court said, was on what the school teaches and whether it is roughly equivalent to a public-school education.

And the appellate court did not find use-based discrimination. Maine was not penalizing religious exercise, according to the court, merely declining to subsidize it.

The three other pending cases that the justices may or may not agree to decide in the new term are:

Dignity Health v. Minton: A Catholic hospital was sued by a transgender man for refusing to perform a hysterectomy in violation of a state anti-discrimination law. A state appellate court allowed the suit to go forward and the hospital challenges that ruling.

Roman Catholic Diocese of Albany v. Lacewell: The diocese challenges a New York law that requires employer health insurance plans to cover medically necessary abortions while exempting some, but not all, religious employers.

Seattle’s Union Gospel Mission v. Woods: The mission is asking the justices to review a Washington Supreme Court decision in a favor of a bisexual attorney who was denied employment in the mission’s legal aid clinic after he disclosed he was in a same-sex relationship.

Justices Gorsuch, Samuel Alito and Clarence Thomas have expansive views of the scope of the free exercise clause and greater willingness—for now—than their three other conservative colleagues to endorse broad accommodations of religion by government. They see no conflicts with the establishment clause.

When the Maine case is argued, however, the justices to watch will be the newest ones-- Justices Brett Kavanaugh and Amy Coney Barrett. There is still much to learn about them.

Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.