The U.S. Department of Justice (DOJ) is standing up for the Constitution. It recently filed a statement in support of three families who have had enough of the State of Maine’s discrimination against them solely because of religion.
The facts of Carson v. Makin are a shocking testament to the deeply rooted anti-religious malice permeating legal elites, some state legislatures, and many government actors. This time around the tables are turned. First Liberty Institute, one of the real civil liberties organizations on the front line of the religious liberty and human rights litigation, is representing the families.
These parents of school-age children live in school districts that do not operate their own public high schools. Maine law requires those districts to provide an alternative school program – and one of the ways that is done is by paying the tuition at another district’s public school or at a private school of the parents’ choice.
Parental choice. Sounds great. But … there’s a catch. Maine, which makes the funds available to any school that meets legitimate academic and other neutral standards, singles out religious schools for discriminatory treatment for only one reason: they are religious schools. That is a clear violation of both the Free Exercise Clause and the Establishment Clause of the First Amendment.
It’s all here in the complaint filed in the U.S. District Court in Maine.
Now the DOJ’s Civil Rights Division has joined the case and is now at the forefront of religious liberty advocacy. Its statement of interest in support of the parents pulls no punches. Here’s are some choice excerpts from its brief (internal quotation marks and citations are omitted):
“The State … imposes a penalty on the free exercise of religion: it forces students who are otherwise eligible for the tuition program to choose between participating in the program or remaining enrolled at a religious institution. The State may engage in this religious discrimination against students only if it satisfies the most exacting scrutiny. But the State has failed to identify an interest of the highest order to justify its discrimination, much less to explain how this discrimination is narrowly tailored to achieve that interest. Accordingly, the State’s exclusion of students who attend religious private schools from the generally available tuition program violates the Free Exercise Clause.”
DOJ’s brief nails the bogus argument originally advanced by Maine to justify its blatant religious discrimination; an argument rejected more than once in recent Supreme Court case law, including Zelman v. Simmons-Harris and Locke v. Davey.
“The State’s original justification for banning religious private schools from the tuition program was that including them would violate the Establishment Clause. The State has now wisely abandoned that justification, as it must: as the State acknowledges, under intervening Supreme Court precedent, ‘Maine could design a program that would allow parents to direct public dollars to sectarian schools without violating the Establishment Clause.’ ”
So there was neither need nor legitimate purpose in excluding religious schools from the funding program.
Then DOJ cited the 2017 landmark case of Trinity Lutheran Church of Columbia, Inc. v. Comer won by the courageous human rights litigation team at Alliance Defending Freedom. It held that generally available public benefits – there a playground-resurfacing grant – may not be withheld from a qualifying school merely because it is religious.
The brief then takes aim at what is really going on and eviscerates Maine’s pretexual concern about avoiding establishment of religion. That bogus argument harked back to an old line of cases disqualifying “pervasively sectarian” groups from some government funding. But the Court has long repudiated that standard as “disavow[ed],” “offensive,” “regret[table],” “born of bigotry,” and as having a “shameful pedigree.” Mitchell v. Helms.
In fact, Mitchell held that the religious nature of a recipient of a government benefit simply does not matter in honest constitutional analysis. The issue is whether the recipient adequately furthers the government’s secular purpose. When it does, then it has not received any special favor because it is religious. Therefore, as Mitchell noted, it would be “most bizarre that the Court would … reserve special hostility for those who take their religion seriously, who think that their religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children.” Ouch!
The brief is a tour de force of outstanding constitutional analysis. It drives in the final nail with a breathtaking coup de grace that should embarrass the Maine Attorney General and the deeply anti-religious ACLU, each of which is shamefully trying to defend Maine’s state mandated anti-religion animus. Mitchell noted that “opposition to religious school funding acquired prominence in the 1870’s … at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret that “sectarian” was code for “Catholic.”
That’s right. Maine is using an old anti-Catholic dog whistle to attack religious education. The New England version of this deep-rooted “hostility to the Catholic Church” is an broader animus toward religion that typically manifests itself as anti-christian. Shame on Maine. Shame, shame, shame.
The DOJ brief is the result of two recent developments in the Administration of President Donald Trump. First is the President’s May 4, 2017 Executive Order Promoting Free Speech and Religious Liberty. That order produced a memorandum of guidance on October 6, 2017 from then Attorney General Jeff Sessions, which provides the foundation for the DOJ’s historic and welcome decision to intervene and file its brief in Carson v. Makin. See the DOJ June 10, 2019 press release here.