With all eyes fixated on the United States Supreme Court this week hearing oral arguments in the Mississippi abortion case, scant attention has been paid to another potentially landmark case before the court next week on taxpayer funding for religious education.
The case is Carson v. Makin, and it stems from a unique situation in Maine, where some school districts do not offer secondary schools. To offset this missing component, the state of Maine provides funding for students who attend high schools in other districts or at approved private schools — both in-state and out-of-state.
To qualify as an approved school, Maine requires that an institution be “nonsectarian.” And therein lies the rub because the vast majority of private elementary and high schools in the United States are in some way faith-based and therefore sectarian.
And in the present case, the parents who sued the state specifically want to send their children to evangelical Christian schools that align with their preferred “worldview” and “sincerely held religious beliefs.”
Generally, American courts have held that government and taxpayer-funded resources should not be used to support schools whose purpose is to indoctrinate students in certain religious beliefs. Such funding has been found to be a violation of the First Amendment’s ban on government “establishment” of one religious belief over all others.
They believe government funding for other private schools but not sectarian schools amounts to discrimination against them and their religious views.
However, the parents in the Maine case are appealing to the other clause of the First Amendment, which guarantees “free exercise” of religious belief. They believe government funding for other private schools but not sectarian schools amounts to discrimination against them and their religious views.
The Maine parents have based their appeal, in part, on another Supreme Court ruling from last year, Espinoza v. Montana Department of Revenue. In that case, the court knocked down a Montana rule that prohibited students who received taxpayer funded scholarships from using them at religious schools.
The push for Free Exercise over Establishment
Both Espinoza and the present case follow a recent trend advanced especially by evangelical Christians who emphasize the Free Exercise Clause of the First Amendment over the Establishment Clause. This trend has driven other notable cases, including several related to whether or not businesses may deny service to same-sex couples seeking wedding cakes, floral arrangements and photography.
“With history and prior precedents in mind, the court should uphold Maine’s system for providing a free public education without sponsoring religious education — but we are fighting an uphill battle,” according to Holly Hollman, general counsel for Baptist Joint Committee for Religious Liberty.
“The Carson case marks the third time in only five years that the court will consider a case involving a religious claim to participate in a government program that conflicts with a state’s legitimate interest in avoiding the funding of religion,” she wrote on the BJC website.
“The Carson case marks the third time in only five years that the court will consider a case involving a religious claim to participate in a government program that conflicts with a state’s legitimate interest in avoiding the funding of religion.”
She cited Espinoza and another case, Trinity Lutheran v. Comer (2017), as illustrations of this evolving battle
“In both cases, the court purported simply to uphold a principle of nondiscrimination. According to the decisions, the programs violated the Free Exercise Clause because they excluded potential beneficiaries based on their religious status. The Carson case tests whether this Free Exercise Clause nondiscrimination 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.”
BJC is among dozens of interested parties that have filed friend-of-the-court briefs on the pending case, which will be argued before the court Wednesday, Dec. 8.
“Unfortunately, the current Supreme Court is moving toward a vision of religious liberty that expands free exercise to a point that directly threatens principles of no establishment,” Hollman wrote in the BJC article.
Southern Baptists and evangelicals together
Historically, Baptists have been staunch advocates for separation of church and state — motivated in part by the fact that early Baptists in America were persecuted and even killed for their minority views on faith. In recent years, as Southern Baptists in particular have become more aligned with the wider conservative evangelical movement they have joined the call for free exercise of their religious views at nearly any cost.
The legal team representing the Maine parents before the Supreme Court illustrates this marriage. Among the six firms listed as counsel for the Maine parents, the first two are most notable. Kelly Shackelford, Lea Patterson and Keisha Russell work with First Liberty Institute, an evangelical religious freedom first based in Plano, Texas. First Liberty has built its practice on issues closely tied to Republican Party politics and evangelical Christian claims of discrimination.
The second firm listed, Whitehead Law Firm of Lees Summit, Mo., brings two Baptist attorneys to the case: Michael Whitehead and his son, Jonathan Whitehead. Both men have been deeply involved in the decades-long internal legal battles of the Missouri Baptist Convention and have weighed in more recently on the side of ultra-conservatives seeking to make the Southern Baptist Convention even more conservative than it already is. Michael Whitehead previously worked as general counsel for the SBC’s Ethics and Religious Liberty Commission. Jonathan Whitehead currently serves as a trustee for the ERLC and has been a vocal opponent of Russell Moore, who left leadership of the agency last summer after being targeted for months by the SBC’s rightmost flank.
Potential ripple effects
The Maine case before the court next Wednesday could have significant ripple effects on other cases brought by evangelical Christians seeking to use taxpayer funds to enroll their children in private religious schools.
Harvard Law Today recently published an interview with Mark Tushnet, professor of law emeritus at Harvard Law School and a constitutional law expert, about the Maine case.
“There has been a strong trend over the past four decades of the court increasingly being willing to allow states to channel money to sectarian institutions.”
“There has been a strong trend over the past four decades of the court increasingly being willing to allow states to channel money to sectarian institutions,” Tushnet said. “And then over the past decade and a half, the court saying, ‘If you channel money to nonsectarian institutions, you have to channel it to sectarian ones.’ This case is just the next step in that line of decisions. Again, if you have a general program direct funds to private schools, you have to allow that money to be directed to sectarian schools. And the court has become increasingly concerned about discrimination against sectarian interests; this has come out in the Masterpiece Cakeshop and Espinoza decisions.”
The argument supporters of religiously affiliated education have been making appears to be gaining steam with the court, he added. “The argument is, ‘You’re taxing everybody to pay for public schools that are nonsectarian. We want to send our kids to sectarian schools. And you’re not giving us that money. You’re making it harder for us to send our kids to religiously affiliated schools.’ Each time the court disallows the exclusion of sectarian programs from something, there is more and more doctrinal support for the argument that if you run public schools in a nonsectarian way, you have to provide something similar at the same cost for parents who want to send their kids to religiously affiliated schools.”
Still, it is possible the court could decide the Maine case narrowly, since few, if any, other states have the kind of scheme for funding secondary education that Maine uses.
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