libertyinstitutefaithethics free exercise, religious liberty, Uncategorized

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 Foundation. Espinoza 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.

libertyinstitutefaithethics Uncategorized

Shame on Maine – Hooray DOJ

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.