Marshall H. Tanick, BridgeTower Media Newswires
“Religion … is the opium of the people.”
Karl Marx
Critique of the Hegelian
Philosophy of Right (1844)
“Religious duties consist in doing justice.”
Thomas Paine
The Age of Reason (1793)
It doesn’t take a Supreme Court scholar to recognize that the high court has been extraordinarily favorable in recent years, indeed almost universally so, to claims of free exercise of religion under the First Amendment.
The justices have done so in a variety of contexts, ranging in their recent terms from rejecting COVID-related restrictions on religious assembly to allowing organization to bypass anti-discrimination requirements in foster parenting, among other matters. For example, Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63 (2020) (limitations on religious assembly sizes due to COVID invalidated); Fulton v. City of Philadelphia, 140 S.Ct.1104 (2021) (religious organization allowed to prohibit foster child for same-sex couple).
Another opportunity is pending before the jurists in the nation’s capital to yet again extend those rights in a case that echoes precedent derived from Minnesota litigation nearly four decades ago.
The pendency of the case, Carson v. Makin, No. 20-1088, heard by the justices late in 2021, provides an opportune occasion to examine that case and its Minnesota heritage.
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Maine measure
The litigation arises out of Maine. It concerns a measure requiring rural school communities that do not have nearby public secondary schools to arrange for students in their area to obtain education in one of two alternatives: (1) entering into contracts with close-by public schools, or (2) paying tuition for students to attend at a private school, selected by their parents, provided that the facility chosen is a “nonsectarian school in accordance with the First Amendment of the United States Constitution.”
A pair of Maine families sending their children to religious schools, or wanting to do so, challenged the law, claiming that its provision infringes on their right to freely exercise their religion by prohibiting payment of tuition to religious schools.
At oral argument, an attorney representing the state characterized the law as a means of providing “a benefit of … free public education,” which because of sparse population occasionally warrants enlistment if private schools, an arrangement that he characterized as of no constitutional significance in the “disparate treatment of non-religious private schools and religious ones.”
That seemed to satisfy one of the liberal justices, Elena Kagan, who saw the measures as affecting only a “very small number of students living in isolated areas … [lacking] the resources to provide public schools.” But on the conservative wing, Justice Samuel Alito questioned the dichotomy, asking whether Maine’s program allows parents to use state-funded tuition to attend private school out-of-state; that elicited an affirmative response that the program allows public funding of tuition at elite private boarding schools in other states while barring payments to local religious ones.
A decision in the case is expected at the end of this term.
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Montana and Missouri matters
Observers expect the court to rule in favor of the parents challenging the prohibition on tuition to nonsectarian schools, based upon a matter from Montana decided two years ago. In Espinoza v. Montana Dept. of Revenue, 140 S.Ct. 2246 (2020) the court, in an opinion written by Chief Justice John Roberts, ruled that states must allow religious schools to participate in programs that provide scholarships to students attending private schools, holding that provision under the state constitution proscribing aid to schools run by churches, transgresses the Free Exercise provision of the First Amendment by discriminating against students attending religious schools.
The chief wrote that a state “need not subsidize private education,” but that if a state decides to do so, it cannot disqualify some private schools solely because they are religious. The Montana case, which seems to form a foundation for a similar ruling in the pending Maine case, may be distinguishable. The former turned on the religious status of the schools rather than their particular curricula — which may be central to the Maine matter.
That concern, however, did not seem attractive to the court in Carson, based upon a concession by the attorney for the state that the Maine law would proscribe tuition payments to a religious school that is “infused in every subject with their view of the faith.” That recognition, the chief justice remarked, constitutes “discriminating among religions based on their belief.”
But Justice Kagan fired back, noting that the religious schools are “overtly discriminatory,” barring gays, transgender people, and non-Christians, which, she lamented, raised the concern that “taxpayer dollars are going to discriminatory schools.”
Another foreboding precedent for the defenders of the dichotomy in the Maine statute is presented by the high court’s decision five years ago in Trinity Lutheran Church v. Comer, 137 S.Ct. 2012 (2017), in which the justices ruled that Missouri could not withhold funds for playground resurfacing at a religious school while granting similar funding for non-religious public schools. The justices reasoned that the purpose of the financial aid was “wholly secular” and had no effect on the teaching of religious dogma.
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Minnesota milestone
The pending Maine case and its Montana and even Missouri predecessors are derived in large part from a ruling of the high court in a Minnesota case concerning a statute dating back to 1955, twice updated in the late 1970s, permitting state taxpayers to claim exemption of up to $700 for certain expenses incurred for tuition, textbooks and transportation of children attending all elementary or secondary schools. Known as the “Parochial Aid” law, it extended to approximately 91,000 elementary and secondary students attending about 500 private schools in Minnesota, about 95% of them sectarian in nature.
The measure was challenged by a group of Minnesota taxpayers, who claimed that it improperly dispensed financial aid to parents of children attending parochial, religious-oriented schools, contrary to the Establishment Clause of the First Amendment. The statute was upheld by U.S. District Court Judge Robert Renner in St. Paul, who deemed it valid on its face and in its application permissible because the statute was “neutral on its face [and] does not have a primary effect on either advancing or inhibiting religion” in Mueller v. Allen, 514 F. Supp. 998, 10003 (D. Minn. 1981). The ruling was affirmed by the 8th U.S. Circuit Court of Appeals, which viewed the statute as benefiting a “broader class of Minnesota citizens, not solely those sending their children to parochial schools.” 676 F.2d 1195, 1205 (8th Cir. 1982).
The Supreme Court granted certiorari and, in a 5-4 ruling, upheld the lower court rulings in a decision written by Justice William Rehnquist, at the time an associate justice before his later elevation to chief justice. His opinion drew dissents from four liberal members of the court at that time. Mueller v. Allen, 463 U.S. 388 (1983).
Justice Rehnquist’s majority opinion reasoned that the Minnesota statutory scheme was acceptable under both freedom-of-religion clauses of the first Amendment. In doing so, he applied the three prong standard of Lemon v. Kurtzman, 403 U.S. 602 (1971), as “helpful” guidance.
The most important consideration was that the tax deductions are available for educational expenses incurred by all parents, and the breadth of the benefits the tax break it provides do not “confer upon any imprimatur of state approval of religion or has a necessarily religious effect.”
The court further reasoned that by “channeling” the tax benefits through individual parents, the Minnesota statute diminishes any constitutional detriments, even though parochial schools benefit from it by encouraging or facilitating tuition payments from parents of students attending those institutions. But there were only “attenuated” financial benefits derived by the schools, while the chief — and permissible — beneficiaries are the parents who make “private choices” on what schools their children attend.
In sum, the “neutrally available tax benefits” were constitutionally permissible under the Minnesota statute. The dissenters, joining in an opinion written by Justice Thurgood Marshall, viewed the decision as violating the “principle of neutrality” required under the First Amendment because it “subsidizes tuition payments to sectarian schools.”
The ruling in this Minnesota milestone case nearly 40 years ago provided the predicate for the court in invalidating the Montana statute that barred tuition students at religious schools from benefitting in state funded scholarship programs. Court watchers and other savants generally feel that it will have the same effect on the Maine case, furnishing the framework to uphold the state funds to religious schools for students of parents who choose to send them there because of the unavailability of public schooling in their areas.
Those observers are sometimes wrong, but when it comes to freedom of religion cases, the Supreme Court these days invariably leans to the right.
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Marshall H. Tanick is an attorney with the Twin Cities law firm of Meyer Njus Tanick.
