Will Supreme Court Finally End Discrimination Based On Religion In School Choice Programs? Catholic National Register


The Supreme Court is due to hear oral arguments on Wednesday at Carson vs. Makin, a major religious freedom case involving Maine’s tuition assistance program for rural students. At present, he discriminates against Catholic parents and other Christian parents. The tribunal – much to the indignation of progressive lobbyists – could put an end to it.

A little background is needed. Many rural towns in Maine do not have their own school system; more than half lack of high school. In areas without access to public schools, Maine allows students to attend other public or private schools at state expense. There is a catch, however. Parents can only choose “a non-denominational school under the First Amendment of the Constitution of the United States.”

Maine applies the insulting “sectarian” label to any school that “promotes the faith or belief system with which it is associated and / or presents the material taught through the lens of that faith.” Thus, any “religious” school benefiting from its program must only be religious in name. Some schools founded on a religious foundation are allowed to participate because the state has concluded that the school curricula do not include any religious instruction.

According to the Supreme Court, the First Amendment protects against “an excessive entanglement of government with religion”. I can’t imagine a more complicated process than one involving government officials combing through educational materials for religious schools.

Three Maine families in areas without a public high school would like to send their children to private, non-profit Christian schools. They have filed a lawsuit, saying Maine’s “non-sectarian” requirement violates their First Amendment right to the free exercise of religion.

The Supreme Court recently dealt several blows at state laws prohibiting “sectarian” entities from participating in state programs or receiving state funds. Those “Disposition without assistance“Bans have a long, dark history. They were enacted at the end of the 19th century and called the “Blaine Amendments” in honor of Congressman from Maine James Blaine, who had tried unsuccessfully to incorporate such prohibitions into the US Constitution. “Sectarian” in this context was too often the code for “Catholic”.

Justice Kyle Duncan, now a member of the 5th Circuit Court of Appeal, observed that, “in 1890, a total of twenty-nine states had incorporated into their constitutions explicit prohibitions against the allocation of public funds to sectarian schools and other institutions.” Interestingly, Maine did not pass a “Blaine Amendment” to its own state constitution. Its “sectarian rule” was enacted by the Maine legislature in 1980. Instead of taking an openly anti-Catholic stance, Maine has chosen to discriminate against it as well. all religious schools. Small consolation.

Barely five quarters ago, in Columbia Trinity Lutheran Church, Inc. v. Comer, the Supreme Court considered a case in which Missouri banned a church-run preschool from receiving a grant from the state’s waste tire recycling grant program to resurface its outdoor playground. Chief Justice Roberts, writing for the majority, explained that “the exclusion of Trinity Lutheran from a public good for which she is otherwise qualified, only because it is a church, is all similarly odious to our Constitution and cannot be maintained ”. Despite the educational institution’s efforts to limit Lutheran TrinityAt hand, the Supreme Court last year declared Montana unconstitutional exclusion of religious schools from its tuition assistance program.

“A state does not need to subsidize private education. But once a state decides to do it, it cannot disqualify some private schools just because they are religious, ”Roberts wrote in Espinoza v. Montana Dept. of Revenue.

Judge Neil Gorsuch, joined by Judge Clarence Thomas, wrote a concurring opinion in Espinoza which is particularly relevant for the court’s resolution of Carson. The First Amendment, writes Gorsuch, “prohibits laws that prohibit the free exercise of religion. This warranty not only protects the right to to be a religious person, having beliefs inwardly and secretly; it also protects the right to act on these beliefs outwardly and publicly.

The light at Lutheran Trinity and Espinoza, Maine parents should have won an easy victory in court. Unfortunately, that is not what happened.

One three judges panel of the United States Court of Appeals for the 1st Circuit, which included the timidly distinguished retired Supreme Court Judge David Souter Espinoza of the Maine case. The panel asserted that the non-aid provision at issue in Espinoza prohibits religious schools from participating in a state tax incentive program solely because of religion status schools.

Maine’s “cult exclusion” rule, on the other hand, focuses on what the school teaches through its curriculum and related activities and how the material is presented. The panel, clearly ignoring Gorsuch’s agreement, wrote: “Because Maine permissibly requires public education to be non-sectarian for reasons that do not reflect any hostility towards religion, it does not betray any hostility towards religion. religion when it imposes a “non-sectarian” restriction based on the use of the public funds it makes available for the purpose of replacing public education which is not provided elsewhere.

Kimberly Wehle, professor of law at the University of Baltimore, in a recent commentary article for Atlantic, questions if the parents of Carson even have the right to sue. The schools these families want for their children, she notes, said they would not accept public school fees if it required compliance with Maine’s human rights law, which prohibits discrimination in employment based on sexual orientation and gender identity.

Wehle explains that, since the schools of choice “are unwilling to participate in the funding in the first place”, a “decision in their favor would not remedy any concrete harm, which is necessary to access federal courts.” It’s a smart, twisted, and deeply illiberal argument – progressive 21st century academia in a nutshell.

Fortunately, not all jurists are so ideologically narrow-minded.

In a brilliant News week comment piece, Richard Garnett, professor of law at Notre Dame and Olivia Rogers, student of law, point out that the distinction made by the lower court between religious status and religious use “does not make sense, especially in the context of the schooling. After all, in many religious traditions faith is embedded in training, learning, education, and development. For many schools, “religious” is not just what they are; that’s also what they do. In addition, the maintenance of discriminatory barriers that exclude religious schools “fundamentally undermines the ability of parents to freely exercise their religious beliefs by limiting their educational options”.

Garnett and Rogers understand that many parents in the United States look to Catholic and other religious schools as partners in the crucial task of educating their children. And they want their children’s schools to be genuinely religious.

So now the ball is in the Supreme Court, and progressives who demand that public funds go only to secular schools may be disappointed. The court will surely give Maine parents a sympathetic hearing on Wednesday. And before the end of the school year in June, discrimination based on religion in school curricula will likely be banned once and for all.

Andrea Picciotti Bayer is the director of Conscience project.


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