This week’s Supreme Court hearings finish with two cases on Wednesday, including one of the most controversial of the current term. That is a case about parents who want to send their children to religious schools, with their tuition paid by state government – a classic case testing the constitutional “wall” between church and state. That will be heard first. The second hearing involves a case raising a significant issue about the right to an effective lawyer for Death Row inmates challenging their guilty verdicts or their sentences.
The “live” audio (no video) of both hearings can be found at Quick Links on the Supreme Court’s homepage – supremecourt.gov – and at c-span.org/supremecourt and C-Span App Now.
First case: Carson v. Makin Hearing begins at 10 a.m., scheduled for 70 minutes.
Background: This is a story that is regularly taught to children in schools across America: “Some 100 passengers set sail on the Mayflower in 1620 to start a life in the New World. They landed in Cape Cod, Massachusetts, and settled the first colony in New England, shaping the future of the American colonies…Why did they come to America? The pilgrims came to America in search of religious freedom.” That is the opening of the version that appears on the Plymouth Rock Foundation’s website.
Americans thus grow up with a sense that religious freedom is part of their heritage, their birthright. And that heritage was written into the Constitution in 1791, in the First Amendment. As originally written, the religion clauses of that Amendment only applied to actions by the federal government; it was not until the 1940s that the Supreme Court extended them to actions of state and local governments, too.
That extension, of course, was the result of the Supreme Court’s fundamental role in interpreting the Constitution, a role it has had since 1803. Interpretation of the religion clauses in that Amendment has always been difficult, though, because they seem to be in some conflict with each other: one bars the government from supporting or favoring religion, the other guarantees that people of faith will be able to exercise their beliefs freely. Do the two together mean government neutrality? That, too, is open to interpretation.
In the 1960s, the Supreme Court – then dominated by liberal views of the Constitution – tended to put more emphasis on the bar to government “entanglement” with religion, but in more recent times, as conservatives moved toward control of the Court, the emphasis has been shifting toward more assurances of free exercise – in particular, assuring that religious people have access to more benefits from government.
The Court led by Chief Justice John G. Roberts now follows this approach: if a government program or benefit is available to all others neutrally, it cannot be denied to religious groups solely because they are religious in nature. Using religious status alone as the reason for exclusion, in other words, is being treated as discrimination in violation of the First Amendment free-exercise guarantee.
Its most recent decision came last year in the case of Espinoza v. Montana Department of Revenue. That involved a state program that gave tax credits to people who donated money to organizations that provided tuition scholarships for use at private schools. Private schools that were religiously affiliated could not benefit from the tuition funds because the Montana state constitution bars all public aid to parochial schools. The Court ruled by a 5-to-4 vote that this exclusion discriminated on the basis of parochial schools’ status, violating their free-exercise rights.
But the Court in that case explicitly left unanswered the follow-up constitutional question: if the government benefit goes to the religious group and it then uses it to promote its faith practices, is that, too, protected as free exercise under the First Amendment?
That presents precisely the status-vs-use distinction, and that is what the Court will consider Wednesday morning in a case from Maine. That state requires that public schools be available for free throughout the state but provides state tuition in localities (in about half of the state) that do not operate their own high schools. The tuition is paid directly to a public or private high school that a parent chooses.
The program specifies, however, that tuition aid may not go to a private school that is “sectarian” – that is, its educational program is based upon religious beliefs and seeks to inculcate students in those faith doctrines. Parents who wish to send their children to a parochial high school challenged the exclusion of those schools from tuition aid. They chose either the Bangor Christian School in Bangor or Temple Academy in Waterville.
Neither of those schools was accepting such aid at the time this case went through lower courts, apparently because doing so could make them subject to a state human rights law that bans discrimination based on homosexuality and transgender identity. Both schools refused to hire homosexual teachers, and one refused also to hire transgender teachers.
This factor may turn out to be a problem for the Court in reviewing the case, because of the long-standing principle that the federal courts constitutionally can only decide an actual legal controversy. If the schools continue to refuse the aid, then the parents arguably would not be facing any denial of their rights because those schools were excluded from the program.
The families, however, have told the Court that they still have a constitutional injury justifying their challenge, because they say they have lost “the opportunity” to send their children to get a religious education with state tuition support.
A federal appeals court ruled that the parents did have a legal basis for suing and went on to uphold the program as is. It concluded that recent Supreme Court decisions finding discrimination against religion were based only on the religious status of an educational institutions, not on the religious use to which the schools would put the state funds.
The parents appealed to the Supreme Court, arguing that the Maine program is unconstitutional, and the Court agreed to consider that question. It said nothing about the question of whether the families had a right to sue, but that is always a threshold question for the Court to answer before it can decide any case. The Biden Administration has entered the case to defend the validity of the Maine program, but also to urge the Court to find that there is no “live” controversy to decide.
The question before the Court: Is it unconstitutional under the religion clauses and the guarantee of legal equality for a state to refuse to allow parochial school students to have access to state tuition funds because those schools would use the funds to provide religious education? (The right to sue is an implied second question.)
Significance: Among a lengthy list of Supreme Court rulings that deal with religion-government relations under the Constitution, there is one standout decision declaring that government funds may not be used directly to pay for religious instruction. But with the Court’s changing membership, that precedent may not be sturdy enough to keep intact the status vs. use distinction.
That precedent was the 2004 decision in Locke v. Davey. The Court ruled that the state of Washington did not discriminate in a college scholarship program even though it explicitly denied use of the money to pay for religious instruction. That had been challenged by a young man who wanted a scholarship specifically to study to be a religious minister. The decision said that the young man was not denied funding because he was a religious person, but only because of how he would use the funds.
That ruling already appeared to be eroding when, four years ago, in the case of Trinity Lutheran Church v. Comer, Chief Justice Roberts’ opinion for a 7-2 majority interpreted the Locke decision as being especially narrow. While the Trinity Lutheran ruling struck down a state program that withheld funds for playground re-surfacing from parochial schools, Roberts kept intact the status vs. use line, remarking in a footnote that “we do not address religious uses.”
Two Justices, Neil M. Gorsuch and Clarence Thomas, supported all of the Roberts opinion except that footnote, and indicated that at some point they might support a new look at the Locke precedent. (Thomas was the lone dissenter in the Locke decision. Gorscuch was not on the Court then.)
The Court is being urged to “correct” the Locke ruling in the Maine case. In a friend-of-court brief, Stanford law professor Michael W. McConnell suggests that, if the Locke precedent is understood to have encouraged the federal appeals court’s “mistaken” decision on the Maine tuition program, the Court should correct it. McConnell is a respected scholar of the Constitution’s religion clauses, with a distinctly conservative point of view. In addition, when McConnell previously served as a federal appeals court judge, he wrote an opinion exactly contrary to the appeals court decision under review in the Maine case.
The Court is getting strong encouragement to stand by the status vs. use distinction from, among others, the National School Boards Association and by several teachers’ unions, including the influential National Education Association. Both organizations told the Court that it would be a devastating blow to public education across the nation if the Maine program were struck down, freeing public funds for parochial school education.
The hearing Wednesday has been allotted 70 minutes, with the Biden Administration allowed time to support the state of Maine and tuition program. The hearing probably will run longer than 70 minutes.
(NOTE TO READERS: Because this discussion is lengthy, and because the second hearing tomorrow involves quite complex issues that will also be discussed at length, that analysis will appear here early tomorrow morning.)