No Sooner Said . . . Latest development in Carson v. Makin

L.I.F.E.’s recent post on the U.S. Department of Justice and its intervention in the important religious liberty/civil rights action Carson v Makin was still hot off the wires when notice arrived that the District Court judge presiding over the case announced his decision upholding the discriminatory statute born of the disgraceful history of anti-Catholicism rampant in the Nations’ past. 

No Surprise in Maine but Big News in Montana: Espinoza v. Montana

Judge D. Brock Hornby’s decision in Carson was no surprise. More on that below. But two days later the U.S. Supreme Court agreed to decide the same issue in Espinoza v, Montana. That case will finally determine the status of the shameful state constitutional Blaine amendments and similar state laws born of deep hostility toward the Catholic Church. Montana’s constitution prohibits any government funding that benefits “sectarian” schools even when the school is perfectly qualified for an otherwise generally available public benefit. As discussed in L.I.F.E.’s earlier post, “sectarian” was a well-known code word veiling the true anti-Catholic purpose of the Blaine Amendments. 

In Carson the District Judge recognized his decision as merely a step on the ladder to potential Supreme Court review. He concluded that the landmark 2018 US Supreme Court decision in Trinity Lutheran left open just enough wiggle room on the precise issue of tuition benefits that other precedent from the United States Court of Appeals for the First Circuit (which governs Federal District Courts in Maine) tied his hands and dictated the result. The validity of that case, Eulitt v. Maine, Dep’t of Educ., is questionable given the holding in Trinity Lutheran, but not to such a degree that Judge Hornby was willing say that it had been clearly called into disrepute – a standard that would have allowed him to escape its application: 

I cannot, as a trial judge, say that Eulitt therefore has unmistakably been cast into disrepute. It is certainly open to the First Circuit to conclude that, after Trinity Lutheran, it should alter its Eulitt holding that sustained Maine’s educational funding law, but it is not my role to make that decision. I therefore apply Eulitt to this controversy and do not decide the post-Trinity Lutheran merits, nor the standard of review that should apply in reaching the merits. Based upon the Eulitt decision, I conclude that Maine’s educational funding program is constitutional.

Appeals and Finality and Espinoza

Thus Judge Hornby’s decision did not reach the critical issue presented by Maine’s hostility to religion in light of Trinity Lutheran: may government discriminate in distribution of generally available public benefits – in the form of tuition subsidies – against a religious applicant merely because it/he/she is religious? The judge recognized that his rapid resolution of the case was merely the first step in what was little more than rehearsal for the appellate battles that lie ahead:

My decision not to decide the ultimate question … is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. … I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher).  

Two days later, on June 28, 2019, it became apparent that Carson will likely not be the vehicle for a definitive resolution of this decades long saga. On that date the Supreme Court agreed to decide the issue in Espinoza v. Montana. The issue will undoubtedly draw a Justice Department brief similar to that filed in Carson and dozens of amici, or “friend of the court,” briefs by interested persons and organizations. In fact, the United States of America filed an exemplary brief in the Montana Supreme Court supporting the plaintiff’s position against the discriminatory state rule. The case promises to one of those most closely with a decision expected in 2020. Here’s an example of interested party amicus brief that was filed by the excellent Pacific Legal FoundationEspinoza is poised emerge as a final, fatal chapter in the sordid history of anti-Catholic government bigotry that has penetrated the American political left and is now manifest as a generalized anti-religious zealotry while keeping orthodox Catholics in the cross-hairs.  L.I.F.E. will keep a close eye on developments.

The Potomac Declaration

Here at L.I.F.E. we can hardly contain our enthusiasm over the marvelous Potomac Declaration adopted last July at the Ministerial to Advance Religious Freedom hosted by U.S. Secretary of State Pompeo. The gathering drew more than eighty delegations, including dozens of minister-level representatives from around the world. It addressed challenges facing religious freedom, identified concrete means to address persecution of and discrimination against religious groups, and promoted greater respect for religious liberty for all, including a commitment to promote Article 18 of the Universal Declaration of Human Rights which declares:

Everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.

Vice President Pence also attended, and announced the creation of the Genocide Recovery and Persecution Response Program to “ensure that religious freedom and religious pluralism prosper across the Middle East as well.” The program will target development in the Nineveh plain in northern Iraq and ensure that U.S. aid is directed toward the minority Christian and Yazidi communities that were the most devastated by the ISIS genocide of recent years. It will balance the misallocation of U.N. aide – mostly supported by the United States – to ensure that the minority religious receive the assistance they need to restore their lives. U.S. Agency for International Development (US AID) Administrator Mark Green explained the troubled history that lead to the Genocide Recovery and Persecution plan in his remarks at the gathering. They offer a useful and poignant lesson in the realities of international relief funding – it’s not the money allocated; it’s how it is spent.

Pompeo also released the Potomac Plan of Action, which sets an ambitions agenda to 1) protect religious liberty, including related parental rights, 2) confront legal limitations on religious liberty, including the repeal of anti-blasphemy laws, 3) advance government advocacy for religious liberty, 4) aggressively respond to anti-religion motivate genocide and mass atrocity, and 5) preserve cultural heritage, and  6) establishing August 3, the first day of ISIS’s Sinjar massacre targeting Yazidis, as a nationally or internationally recognized day of remembrance of survivors of religious persecution.

Read up on these important steps to a more secure international respect for religious liberty. 

L.I.F.E. is Live – Join Us

Life is short, so the saying goes. Here at L.I.F.E. we are going long, as in “for the long haul.” Liberty, life, freedom of conscience, and family structures face unprecedented challenges in the era of technological revolution, expanding government intrusion into daily life, and rapidly evolving social norms. The interface of natural sciences, medicine, and technology offers previously unimaginable vistas. At the same time, those disciplines and others, such as law, ethics, economics, and philosophy open potentials for abuse. 

L.I.F.E. is a new resource, tracking developments related to religious and political liberty, bioethics, and cultural expression. It is no neutral observer. Rather, it proposes a natural law ethic that presupposes and advocates certain first principals: the human person is a creature possessed of free will; societies of persons are the natural state of human persons, beginning with the family based on marriage of one man and one woman, and expanding to local, regional and international political structures; there exist inherent standards of good and evil not contingent on circumstance or intention but of their very nature; each human life is precious, unique and unrepeatable and demands the protection of law from conception to natural death; the free exercise of religion is fundamental to the legitimacy of a given political order; each person is endowed with unalienable rights including freedom of thought, speech, conscience, and religion; and each is obliged to respect the freedom of others and to fulfill the duties inherent to the flourishing of civil society. L.I.F.E. offers a critical assessment of the forces shaping the 21stCentury in light of those first principals. 

L.I.F.E.’s principal organs of commentary, advocacy, and study are the Saint John Paul II Bioethics Center, the Religious Liberty Observatory, and the Center for the Study of Bioethics & Law

The annual Saint John Paul II Bioethics Lecture presents academics, jurists, scientists, and others addressing timely topics in bioethics. The 2019 lecture, And Such Were Some of You: Homosexuality and the Bible, features renowned scripture scholar Rev. Sebastian Carnazzo, PhD. And the Center for the Study of Bioethics & Law offers a free university level course: Bioethics & Law 101, with many more in the pipeline.

Please take a stroll through our easy to navigate site. We think you will find in it sources that both delight and challenge.