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SCOTUS Again Extends Religious Protection. How Big of a Change Are We Seeing?

By Joseph Fawbush, Esq. on June 23, 2022 10:39 AM

The U.S. Supreme Court has again sided with a religious institution in a case involving the First Amendment. In Carson v. Makin, the Supreme Court held that a state refusing to allow children to use a taxpayer-funded tuition assistance program to attend a private religious school violated their free exercise rights.

It is the third time this term the Supreme Court has held in favor of an individual or institution seeking to enforce their religious rights under the First Amendment. A fourth case involving a coach's ability to pray at school is due shortly, as well, with many expecting another win for religious rights.

A Quick Reminder About the First Amendment

Understanding the direction SCOTUS is moving in requires some background about the First Amendment. The Founding Fathers were wary of state-sponsored religion. Previous centuries had seen terrible religious wars and bloodshed across Europe. As such, the Founders wanted the U.S. government to be as religiously neutral as possible.

It isn't surprising that the first clause of the Bill of Rights is about the separation of church and state. It holds that:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The first part of the sentence is known as the establishment clause. It aims to keep the government from sponsoring or favoring any one religion. The second is the free exercise clause. It aims to stop the government from prohibiting anyone from practicing their religious beliefs.

However, if you examine the mandates in those two clauses closely, you can see how they could come into conflict.

No Funding to Attend Private Religious Schools

A perfect example of this tension in the First Amendment is Carson v. Makin, which involves a tuition-assistance program in Maine that provides funding for students in rural counties without any secondary schools. The students in these counties are either transported to the nearest public school or attend a private school, and Maine compensates those families to fulfill its constitutional duty to provide a free public education.

Maine did not, however, allow families to use this tuition-assistance program for private religious schools, not wanting the state government to pay for a child's religious upbringing. Parents of two affected rural school-aged children disagreed with the policy and challenged Maine's program as an unconstitutional violation of the free exercise clause.

Upholding the Establishment Clause . . .

On the one hand, Maine's policy seems clearly tailored to the separation of church and state — just as the establishment clause requires.

The two schools in this case teach their students in accordance with their Christian faith. According to Justice Sonia Sotomayor's dissent, one of the schools involved has the stated objective to "foster within each student an attitude of love and reverence of the Bible as the infallible, inerrant, and authoritative Word of God." Maine, like the rest of the U.S., contains many religions. Paying for a student's Christian education seems to be favoring that religion over others.

. . . While Violating the Free Exercise Clause

On the other hand, refusing an otherwise eligible school (even a private school) from a public benefit based on its religious doctrines could be seen as violating the free exercise clause. As Chief Justice John Roberts, who wrote the majority opinion, put it: "The Free Exercise Clause of the First Amendment protects against indirect coercion or penalties on the free exercise of religion, not just outright prohibitions."

Unsurprisingly, at least to those of us who listened to oral arguments, SCOTUS ultimately held that Maine's policy violated the free exercise clause. The decision further blurs the line between how involved the government can become with a religious institution when it comes to providing public benefits.

A New Line of Free Exercise Cases

To understand the Court's decision, it is important to note two recent cases: Trinity Lutheran Church of Columbia, Inc. v. Comer and Espinoza v. Montana Department of Revenue.

In Trinity Lutheran, a 2017 case decided by a 7-2 vote, the Supreme Court held that Missouri could not withhold a public benefit to a religious daycare. That case involved a state-sponsored program that gave recycled playground material to schools and daycares.

In that decision, the court held that Missouri's policy of not considering religious schools violated the free exercise clause because it discriminated against organizations based solely on their religious status. Put simply, playgrounds have nothing to do with religion, so the daycare had an equal right to the benefit. The court did not, however, discuss whether the school's religious doctrines or tenets impacted the decision.

In Espinoza, a 2020 decision decided by a 5-4 vote, a mother applied for a state-sponsored scholarship to keep her child in a Christian school. However, Montana did not allow families to use scholarships at religious schools.

The Supreme Court held that this policy was more stringent than the establishment clause requires, since the state wasn't directly funding the religious schools, just providing funds for students to make their own decisions. And the state's interest in keeping the state program separate from religion was not enough to justify what the court labeled as a violation of the free exercise clause.

Is Carson a Mountain or a Molehill?

Trinity Lutheran and Espinoza established that states could not withhold a secular and religiously-neutral public benefit simply on the basis of an organization's religious status. Espinosa did not, however, directly say that state funds must be given to religious schools to help them administer their curriculum. This was the issue in Carson.

Roberts, writing for the majority, argued that this question was already answered in Espinoza — that refusing to allow students to use a public benefit based on religious curriculum was a violation of free exercise. Sotomayor, along with Justices Stephen Breyer and Elena Kagan, dissented.

At oral argument, Roberts asked whether Maine would distinguish between a faith-based school that taught according to its specific tenets and one that was religious but taught students in a religiously neutral way. Maine said it would have, in this hypothetical, distinguished between those two schools. In other words, Maine was less concerned with whether a school was affiliated with a religion and instead concerned with using taxpayer dollars to fund a child's specific religious learning. Does Maine have the ability to make such a distinction?

According to the majority, no. "The unremarkable principles applied in Trinity Lutheran and Espinoza suffice to resolve this case," Roberts wrote. "Maine's tuition assistance program . . . effectively penalizes the free exercise of religion." And because the state doesn't force students to attend a religious school, it does not violate the establishment clause.

Two Dissents and a Warning

It was a 6-3 decision. There were two dissents. Breyer pointed out in his dissent that there is a difference between a state being allowed to fund students who want to attend a religious school. He agreed that such a program wouldn't violate the establishment clause.

But Breyer also argued that what the Supreme Court held mandated that schools provide such funding. And in Breyer's view, this is absolutely not required. Rather, states should have the option of funding or not funding. Instead of a bright-line rule such as the majority's, Breyer suggested that advancing the true purpose of the First Amendment is best served by "considering the particular benefit at issue, along with the reasons for the particular religious restriction at issue." It's what Breyer calls leaving "room at the joints."

Sotomayor wrote a separate dissent to make it clear that she thought the court erred in "starting down this path" five years ago with Trinity Lutheran. She also wanted to highlight what she views as a "rapid transformation" in the analysis of the religion clauses in the First Amendment. She notes that while the majority's holding prevents discrimination of one kind, it mandates that Maine discriminate against others — namely, non-Christian students.

What Does This New Line of Cases Mean?

Clearly, the Roberts Court has shifted away from a focus on the establishment clause, and instead is emphasizing the importance of the free exercise clause. In practical terms, this means we may see more government subsidies that benefit religious institutions.

It is still, however, unconstitutional for a state government to favor one religion over another, meaning that if a Christian school can receive public benefits, so too can a Muslim, Jewish, or Buddhist school.

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