U.S. Supreme Court Hears Oral Arguments in New Church-State Separation, School Voucher Case

On December 8, the U.S. Supreme Court heard oral arguments in another school voucher case that tests the separation of church and state. The case is Carson v. Makin, about school vouchers in the state of Maine.

Carson v. Makin was litigated by the Institute for Justice, a libertarian law firm. This case is not an example of parents who want vouchers going out and looking for a law firm to defend their case. For decades the Institute for Justice has been attempting to undermine the First Amendment’s protection of the separation of religion from the mandates of government.

The First Amendment of the U.S. Constitution protects citizens’ freedom to choose their religion or no religion, and to practice religion as they choose: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause declares that government won’t favor or establish any one religion. The Free Exercise Clause prohibits government from telling citizens how they should worship.

The Institute for Justice first litigated cases on school vouchers in the Cleveland voucher case, Zelman v. Simmons-Harris (2002), in which the U.S. Supreme Court found that vouchers are constitutional as long as the state gives the money to the parents and allows the parents to choose the school instead of awarding the voucher directly to the religious school.  It was a case decided on the Establishment Clause, which says government cannot endorse or establish any particular religion. Zelman v. Simmons Harris significantly expanded school vouchers across the states.

Then in 2020, when it argued for the constitutionality of state dollars going directly to religious schools in Espinoza v. Montana Department of Revenue, the Institute for Justice used an entirely new pretext, this time under the First Amendment’s Free Exercise Clause. The Institute for Justice alleged that if a state awards tax-funded vouchers for private schools, it can’t discriminate against religious schools just because they are religious. The logic seems tortured, but today’s U.S. Supreme Court majority accepted it.

In a recent newsletter, the National Education Policy Center traces the history of public funding for private high schools in some of Maine’s small towns: “The case, Carson v. Makin, challenges Maine’s exclusion of ‘sectarian’ schools—those that include religious instruction—from the state’s ‘tuitioning’ program. Maine has, for nearly 150 years, allowed towns too small to operate high schools of their own to pay for their students to attend other public or private high schools. The state has, since 1980, placed a ban on schools that would use the public funds for sectarian (religious) teaching… In Maine, tuitioning is used as a way to deliver public education, with the private schools standing in the shoes of the public schools that would otherwise have to be built. As such, it would make no legal or policy sense to hold the private schools to a different set of rules around curriculum, discrimination or proselytizing.”

A professor of law at the University of Dayton, Charles J. Russo explains how the issue in Carson v. Makin differs from Espinoza v. Montana, in which the U.S. Supreme Court found that, under the First Amendment’s Free Exercise clause, the state could not discriminate against a school based on its religious status. Carson v. Makin is about the school’s practice—the explicit teaching of religion, which the state of Maine prohibits. On this matter, the state has prevailed in two appeals of this case: “The federal trial court in Maine ruled in favor of the state, affirming that its “tuitioning” statute did not violate the rights of the parents or their children. On appeal, the First Circuit unanimously affirmed in favor of the state… First, the First Circuit decided the requirement that schools be ‘nonsectarian’ did not discriminate solely based on religion or punish the plaintiffs’ rights to exercise their religion.  This is because the rule has a ‘use-based’ limitation—which may prove to be a crucial distinction. In other words, sectarian schools are denied funding not because of their religious identity, the First Circuit wrote, but because of ‘the religious use that they would make of it.'”

Following oral arguments last Wednesday, VOX’s Ian Millhiser reported: “At an oral argument held Wednesday morning, all six members of the Supreme Court’s Republican-appointed majority appeared likely to blow a significant new hole in the wall separating church and state… All six of the Court’s Republican appointees appeared to think that this exclusion for religious schools is unconstitutional—meaning that Maine would be required to pay for tuition at pervasively religious schools. Notably, that could include schools that espouse hateful worldviews. According to the state, one of the plaintiff families in Carson wants the state to pay for a school that requires teachers to sign a contract stating that ‘the Bible says that God recognizes homosexuals and other deviants as perverted’ and that ‘such deviation from Scriptural standards is grounds for termination.’ In the likely event that these plaintiffs’ families prevail, that will mark a significant escalation in the Court’s decisions benefiting the religious right… The justices are likely to place some limits on its decision in Carson, but it’s not yet clear how they will justify those limits… (I)t’s hard to draw a principled line between a Court decision requiring Maine to fund religious education as part of its existing private school tuition program and a decision requiring all states with a public school system to fund religious education.”

It would be a big mistake to assume that most American religions are in favor of any of these cases. Under the free exercise clause, a large number of religious organizations do not want government interfering with their beliefs and practices. On behalf of 24 organizations, the American Civil Liberties Union, Americans United for Separation of Church and State and the Baptist Joint Committee for Religious Liberty filed an amicus brief arguing that the Supreme Court should not, under the Free Exercise clause, affirm the constitutionality of publicly-funded vouchers for religious schools in Maine.  The amici in this case include: the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty, Catholics for Choice, the Central Conference of American Rabbis, the Evangelical Lutheran Church in America, the General Synod of the United Church of Christ; the Hindu American Foundation, the Jewish Social Policy Action Network, the Methodist Federation for Social Action; the National Council of Jewish Women, the National Council of Churches, The Sikh Coalition; and the Union for Reform Judaism.

The General Counsel and Associate Director of the Baptist Joint Committee for Religious Liberty, Holly Hollman explains why, from the point of view of the organizations filing this amicus brief, this libertarian school voucher case is bad for religion: “Should states be forced to fund the training of young men and women to serve the Lord and become leaders in their church?  Of course not…. In Carson v. Makin, parents are seeking state support for their children’s private religious education. The Baptist Joint Committee and its allies are urging the Court to recognize the historical reasons for keeping the government out of religion… These concerns include protecting individual conscience, respecting inherent limits of government authority in religious matters, and avoiding the creation of divisions based on religious differences.” Hollman reviews Espinoza v. Montana (2020) in which “the Court… held that a Montana tax credit program that funded scholarships to private schools must include private religious schools, notwithstanding Montana law intended to separate church and state.” She explains that in Espinoza, the Court held that the tax credit program violated the Free Exercise Clause because Montana provided tax credits for private schools but excluded some schools because of their religious status. She explains further: “The Carson case tests whether this Free Exercise Clause nondiscrimation rule will be extended to prohibit state programs that are designed to avoid government involvement in religious uses of government funds—such as the explicitly religious activity of providing an education designed to instill a biblical worldview. In our view, it should not.”

Finally in this school year when libertarian organizations like the Heritage Foundation, the Goldwater Institute, and the Manhattan Institute are coordinating and scripting the actions of parents mobbing school board meetings demanding the end of mask mandates, the banning of books, and limitations on what can be taught about slavery and racism, there is another way to look at this case as part of today’s American ethos of individualism and so-called parents’ rights.  Nobody is trying to stop parents from choosing a religious school, but the case of Carson v. Makin, litigated by the Institute for Justice, is intended to force government to pay for the parents’ private school choices.

School Prayer Isn’t in Question, but Wednesday, Supreme Court Will Hear Important Church-State Separation Case

President Donald Trump made a splash last week pretending that students’ right to pray at school has been threatened.  While this subject may appeal to his base, the law is settled on this matter.

Education Week‘s Evie Blad explains: “Courts have held that students may pray at school alone or in groups, but that prayer may not be organized or sanctioned by the school… The Elementary and Secondary Education Act, in its current and past versions, requires the U.S. Department of Education to provide guidance on prayer in schools every two years, but that guidance hasn’t been updated since 2003… The new school prayer guidance, published in the Federal Register Thursday morning, reiterates requirements under existing law that school districts must annually certify to their state departments of education that they have ‘no policy prohibiting participation in constitutionally protected prayer’….”

The Washington Post‘s Moriah Balingit and Ariana Eunjung Chah quote Charles Haynes, an expert on this issue at the First Amendment Center’s Freedom Forum: “It’s overdrawn and somewhat political to keep this so-called school prayer fight going… This is in some ways a manufactured crisis because it plays well politically to say, ‘We want God back in schools.'”

Although prayer in school is not really at issue this week, another controversy involving religion and public education will reach the U.S. Supreme Court.  The justices will hear oral arguments on Wednesday in an important case involving the First Amendment’s protection of the separation of church and state. The subject is the long fight over the First Amendment’s prohibition of “establishing” religion, in this case by using public tax dollars to pay for religious schools.  The case, Espinoza v. Montana Department of Revenue, tests the 1972 Montana state constitution’s provision that public funds must be spent on the public schools across the state. Montana renewed its commitment to the principle of separation of church and state when 100 delegates met in 1972 to revise and renew the state’s constitution.

Diane Ravitch summarizes the implications of the U.S. Supreme Court’s eventual decision in the Montana Espinoza case: “The facts of the case are these: Like many states, Montana’s state constitution forbids the funding of religious schools. The Montana legislature passed a tax credit program that funds vouchers for religious schools. The Montana Supreme Court ruled that the law violated the state constitution.  Now, the case is before the U.S. Supreme Court… The typical attack on state bans on funding religious schools is that such prohibitions are ‘Blaine amendments,’ adopted in the late 19th century at the height of anti-Catholic bigotry; because they were passed in a spirit of bigotry, the argument goes, they should be struck down. In Montana, the prohibition on funding religious schools is not a Blaine amendment.  It was the product of a Montana state constitutional convention in 1972.”

In an amicus brief, Public Funds for Public Schools— a collaboration of the Education Law Center, the Southern Poverty Law Center and Munger, Tolles & Olson—supports Montana’s protection of the use of public funds exclusively for public schools.  Public Funds for Public Schools’ amicus brief describes the debate in 1972 as the delegates revised Montana’s state constitution: “(P)roponents of the majority reiterated their support of public schools and explicitly rejected any notion that bigotry motivated the majority’s proposal to retain the 1889 language,” which affirmed the exclusive expenditure of state education dollars on public schools. A 1972 compromise did permit the pass-through of federal funds to nonpublic schools, but explicitly prohibited the use of state funds for nonpublic educational purposes.

The Public Funds for Public Schools amicus brief explains further the delegates’ commitment to fully funding equity in Article X, the broader education clause of the Montana Constitution as revised in 1972, “Article X, Section 1 obligates the state legislature to provide a system of ‘free quality public elementary and secondary schools,’ guarantees ‘equality of educational opportunity,’ and sets the objective of ‘developing the full educational potential of each person.’ …  The delegates resolved that Montana’s public education system ‘must be directed to the elimination of blatant injustices, which may predetermine a lifelong disadvantage.’  Section 1 also reflects the delegates’ awareness of and concern regarding the legacy of American Indian education and the historical treatment of the native nations within Montana’s borders… In guaranteeing Indian Education for All, Montana’s delegates entrusted their public school system to right the historical wrongs of western education in American Indian communities, and reaffirmed the State’s goal of providing a free quality public education to all Montana’s students—with the accompanying commitment to adequately fund these constitutional mandates.”

The challenge to Montana’s constitutional protection of the separation of church and state is being litigated by the Institute for Justice, the conservative law firm behind a number of similar court challenges in recent decades. In a recent report published by In These Times, Alice Herman explains the significance of the Espinoza case which threatens Montana’s guarantee that public funds will be spent on public schools: “On January 22, the U.S. Supreme Court will hear Espinoza v. Montana Department of Revenue, a case that could result in the massive expansion of public funding for private religious schools. The petitioners in the case—which will be litigated by the conservative law group, Institute for Justice—are asking that the court rule unconstitutional the denial of ‘public funds’ to religious schools…. In the event that the court rules in favor of the petitioner, the result, argue its detractors, would be tantamount to a mandate for religious voucher programs in every state… The origins of the Espinoza case lie in a December 2018 Montana court ruling that a state tax credit program incentivizing charitable donations to private school scholarship funds could not be applied to scholarships for religious schools. The Montana Supreme Court held that the state-implemented tax credit could only be applied to non-religions private schools… In the event that the Supreme Court rules in the plaintiff’s favor, public funding for private education will increase not only in Montana, but in the 37 states whose constitutions ban the provision of public funds for religious schools.”

Last October, The New Yorker magazine’s Supreme Court reporter, Jeffrey Toobin detailed his concerns about the Trump administration’s efforts to undermine the protection of church state separation.  Specifically Toobin described the philosophy of Attorney General William Barr: “(S)peaking at the University of Notre Dame… Bar took ‘religious liberty’ as his subject, and he portrayed his fellow-believers as a beleaguered and oppressed minority.” Toobin continues: “(I)n recent years, a key tenet of the evangelical movement (and its supporters, like Barr) has been an effort to get access to taxpayer dollars.  In a major case before the Supreme Court this year, the Trump Administration is supporting religious parents who want to use a Montana state-tax-credit program to pay for their children’s religious schools. This effort is also a major priority of Betsy DeVos the Secretary of Education, who is pushing for the increased availability of taxpayer vouchers to pay for religious schools.  Barr portrays these efforts as the free exercise of religion when, in fact, they are the establishment of religion; partisanship in the war between the religion clauses (of the First Amendment) is one of the signatures of Trump’s tenure in office. Of course, the necessary corollary to providing government subsidies to religious schools is starving the public schools, which are open to all children, of funds.”