HAVE THERE BEEN ANY INTERESTING CASES RECENTLY?

Yes, the United States Supreme Court heard the below case in December 2021 and issued the opinion in June 2022. The majority opinion was written by Chief Justice John Roberts. The other five mostly conservative justices concurred in the opinion and the more liberal leaning three justices during that Court’s term dissented.

The Establishment Clause of the United States Constitution is found in the First Amendment of the Bill of Rights and states in part, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; “

While the more common cases involve the “separation of church and state” (Establishment Clause) cases, this one hinges more on the “Free Exercise” clause for those of a more conservative leaning.

The case of Carson v. Makin arose from the state of Maine. The state of Maine provides for tuition assistance to parents who live in parts of the state that have no secondary school or do not contract with a nearby secondary school. The parents designate the school that they would like the state to transmit payments to for tuition assistance. While schools participating in the program must have certain accreditations, they may otherwise differ from the public schools in various ways. Beginning in 1981, Maine would only give tuition assistance payments to non-sectarian schools.

The petitioners sought tuition assistance for their children to Bangor Christian Schools and Temple Academy. Though both schools qualified as being appropriately accredited, they did not qualify for tuition assistance since they were not nonsectarian. The Petitioners sued the Maine Department of Education asserting that their rights under the Free Exercise clause were violated as well as the Fourteenth Amendment, Equal Protection clause. The constitutional claims were rejected by the District Court and the decision was affirmed by the First Circuit.

The Free Exercise Clause in the opinion of the Court “protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions””. In both Missouri and Montana there were cases where those states provided aid to either a non profit in Missouri or scholarship funding in Montana, provided neither had religious affiliation. In both cases it was held that such laws violated the Free Exercise Clause by making otherwise qualifying institutions ineligible because of religious affiliation. Both cases were supported by the Free Exercise Clause. Justice Roberts wrote, “Maine’s program cannot survive strict scrutiny. A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

While the First Circuit held that the nonsectarian requirement was constitutional “because the benefit was properly viewed not as tuition payments to be used at approved private schools but instead as funding for the “rough equivalent of the public school education that Maine may permissibly require to be secular.” Justice Roberts points out that the statute provides tuition assistance at a public or private school selected by the parent. It does not say it has to provide a public education. He further pointed out that while public schools generally accept any student, a private school does not. Private schools may also charge a tuition many times greater than that amount offered by the Maine tuition assistance program.

Finally, Justice Roberts wrote, ““it is clear that there is no ‘historic and substantial’ tradition against aiding [private religious] schools” that is “comparable.” Espinoza, 591 U. S., at ___.” For the reasons above the Court majority reversed the holding of the lower courts and remanded back to the trial court for reconsideration based on the decision of the US Supreme Court.

In a separate dissenting opinion, Justice Sotomayor wrote a “snippy” comment in, “what a difference five years makes. In 2017, I feared that the Court was “lead[ing] us . . . to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Trinity Lutheran, 582 U. S., at ___(dissenting opinion) (slip op., at 27). Today, the Court leads us to a place where separation of church and state becomes a constitutional violation. If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens. With growing concern for where this Court will lead us next, I respectfully dissent.”

I pray that each of you have a blessed, happy and merry Christmas or Hanukkah!

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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