The U.S. Supreme Court should correct a federal appeals court ruling that upheld a Maine tuition-assistance program that excludes schools providing faith-based instruction, the Southern Baptist Ethics & Religious Liberty Commission (ERLC) and other organizations have told the justices.
The ERLC joined 12 other organizations in a friend-of-the-court brief filed by the Christian Legal Society (CLS) that asked the high court to review an opinion by the First Circuit Court of Appeals in Boston that they contend violates the First Amendment’s guarantee of free exercise of religion. The brief, filed March 11, said the lower-court ruling conflicts with both the Constitution and the justices’ previous decisions by barring from the program schools that use funds to provide religious instruction and the families that choose those schools.
The justices are scheduled to consider whether to review the decision in their April 1 conference, a lawyer for the families who brought suit said.
Maine’s school-choice program assists families in the many small towns in the state that do not operate secondary schools and the smaller number that have no elementary schools. Those districts are required to pay tuition up to a legal limit at a public or private school elsewhere of the parents’ choosing.
To qualify for the program, private schools must be “nonsectarian,” a category that does not necessarily prohibit religious schools, according to the petition on behalf of the parents seeking Supreme Court review. The state’s Department of Education reviews the instruction used by a religious school to determine if it promotes the faith with which it is identified and therefore is ineligible, the brief said.
According to the brief signed onto by the ERLC, the Supreme Court needs to rectify the flawed distinction by the First Circuit Court between the identity of a religious school and the use of a benefit by a religious school.
The First Amendment’s free-exercise-of-religion clause “offers no basis for distinguishing a beneficiary’s religious affiliation from its use of benefits,” the brief said before citing an eight-decade-old opinion by the high court that said the clause contains two ideas – “freedom to believe and freedom to act.”
“The ‘exercise of religion’ covers not just having a religious identity but also living out that identity, including giving or receiving religious instruction in educational institutions,” according to the brief. “The constitutional text cannot support forbidding discrimination against religious affiliation but allowing discrimination against religious teaching and activities.”
In addition, the Supreme Court’s rulings in past free-exercise cases “forbid discrimination and non-neutrality not only against religious affiliation but also against those who live out their religious identity in actions,” the brief said.
“It is untenable to prohibit a state from discriminating against schools because they are religious but allow it to discriminate against schools because they supplement secular instruction with religious teaching.”
The ERLC joined the broad coalition in submitting the brief “because families should not be discriminated against by the state simply because they educate their children in religious schools,” said Travis Wussow, the entity’s general counsel and vice president for public policy.
“As the justices rightly decided in [recent church-state decisions], excluding people based on religion from generally available public benefits runs afoul of the First Amendment,” Wussow told Baptist Press in written comments. “Just as the government must not establish religion, in this brief we encouraged the court to further ensure governments do not treat religious Americans worse than their non-religious neighbors.”
The brief also said Maine’s argument that its tuition-assistance program is a “rough equivalent” to a “secular public education” that enables it to exclude religious schools would permit the evasion of previous high court decisions and authorize discrimination in other contexts. On this basis, a state would be able to discriminate, for instance, against faith-based providers of mental-health and substance-abuse services, according to the brief.
The First Circuit Court’s opinion conflicts with decisions in similar cases by the Sixth and 10th Circuit Courts, the brief said.
The petition on behalf of the Maine parents seeking a Supreme Court ruling asked the justices to resolve the “religious use” question they failed to in a June 2020 decision that found states may not exclude families and schools from benefit programs based on the institution’s religious identity. In that opinion, Espinoza v. Montana Department of Revenue, the high court’s majority said, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
The Southern Baptist, father-and-son law team of Michael and Jonathan Whitehead – who practice in the Kansas City area – are representing the Maine parents, along with lawyers from the First Liberty Institute and the Institute for Justice.
“We’re hopeful the court will take up this case and close this loophole that allows unfair treatment,” Jonathan Whitehead said in written remarks. “If a state is going to fund private education, its interests are in education; there’s no public interest in judging the school’s spirituality.”
Whitehead, a member of the ERLC’s board of trustees, said the First Amendment “does not allow the government to decide when religious people are acting ‘too religious.’ The First Amendment prohibits government favoritism among America’s religious creeds, but excluding people who act based on religion is not neutral, it’s discrimination. Free exercise means both religious beliefs and religious actions must be protected.”
In addition to the ERLC, other organizations signing onto the CLS brief included Agudath Israel of America, The Anglican Church in North America, the Evangelical Council for Financial Accountability, the Institutional Religious Freedom Alliance, The Lutheran Church-Missouri Synod, the National Association of Evangelicals and various Christian or private school organizations.
The case is Carson v. Makin.
(EDITOR’S NOTE – Tom Strode is Washington bureau chief for Baptist Press.)