The Legal Lookout
What’s The Supreme Court Doing with The Religious Clauses in Public School Finance?
April 13, 2023
Public schools are faced with an arduous challenge to balance the Religion Clauses in the First Amendment. The Establishment Clause prohibits the government (including schools) from establishing any type of religion. This establishment could be in the form of endorsement, coercion, or requirement to accept a religion. The Free Exercise Clause allows an individual the right to express his or her own beliefs, meaning that the government can not chill an individual’s or private organization’s right to express religious convictions. Consternation often occurs when public schools limit an individual’s free exercise rights to protect against an Establishment Clause charge.
An area within the Religion Clauses that the Supreme Court has been addressing during the past several terms is the use of public funds to support parochial schools. Thirty-seven states have a clause in their constitutions that prohibits the state government from financially supporting religious schools. Recently, though, three separate decisions have been scaffolded to create a landscape that does not universally support these state constitutional clauses, establishing the concept that public funds can go to private schools, and religious schools should not be discriminated against simply because they are religious. In 2017, the Court held in Trinity Lutheran Church v. Comer that a church-sponsored daycare and preschool in Missouri that applied for a state grant to replace its playground surface was discriminated against by the state when it was denied the grant simply because it was a church. Interestingly, though, was the fact that Chief Justice Roberts, who wrote the majority, included a footnote (Footnote #3) that capped the decision to playground equipment and not other forms of discrimination – much to the chagrin of his conservative jurist colleagues.
It was not long until the Court got another attempt to expand this legal theory further. In 2020, the Court heard Espinoza v. Montana, which declared that modest tax credits up to $150 were provided to individuals and groups who donated to the scholarships. The Montana Department of Revenue enacted an administrative rule that prohibited scholarship recipients from using the award to enroll at a religious school because the Montana Constitution proscribes direct or indirect funding of religiously affiliated programs. Several parents sued the state claiming that the rule discriminated against their Free Exercise rights. Writing for the majority again, Chief Justice Roberts declared that the rule violated the Free Exercise Clause. The majority based its opinion on the fact that the question turned on whether the state prohibited the appropriation due to religious status and not religious use. This case provided the conservatives who were disappointed with the Trinity decision a solid victory and established a rule forward to evaluate such contests.
The full application of the results from these two cases was seen in a decision by the Court in summer 2022. Carson v. Makin saw parents in Maine sue the state over the ability to use state tuition dollars to enroll their children in religious secondary schools. The majority, written by Chief Justice Roberts, used Trinity and Espinoza as its legal foundation to decide that the state does not have to subsidize private education, but once it does, it cannot disqualify a school because it is religious.
After reviewing these three cases it is very clear what the Court has done and is trying to accomplish. In a short review of jurisprudential history, it can be ascertained that the conservative judicial block among others has been disenchanted with Religion Clause rulings that frequently held for Establishment Clause violations versus free exercise expression. These cases present a newer judicial paradigm that declares religious status is more critical than the religious use of state monies when deciding the constitutionality of these programs. For this Court, discrimination against a religious entity, simply because it is religious, will not be viewed favorably.
This article is the author’s opinion and is not legal advice. As always, consult with your attorney on specific legal issues.
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