A Paradigm Shift – The Supreme Court Takes a New Path on The First Amendment and Religion in America

By Rafael Hoffman

As security fences go up around the Supreme Court to protect the institution and its members from growing threats from activists over a then -anticipated ruling that has roiled the country, the Justices issued a ruling last week that deconstructs a judicial wall its predecessors built, drafting a new picture of how they view the Constitution’s dictum that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In Makin v. Carson, a case focused on government funds flowing to religious schools in the state of Maine, the court punctuated a point it has made with increasing confidence in recent years; not only does it not see a problem in including faith institutions in many funding programs, but that excluding them runs afoul of the Constitution.

“There is nothing neutral about Maine’s program,” wrote Chief Justice John Roberts on behalf of the court’s majority. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. A State’s anti-establishment  interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

In his opinion, Justice Roberts took a broad step in cementing his court’s doctrine that state funding must place religious institutions on equal footing with secular ones and that failing to do so is discriminatory.

The decision was most enthusiastically celebrated by proponents of school choice and advocates for more robust access for religious institutions to government funding.

While some headlines on the ruling gave the impression that it would have sweeping and immediate effects, it is unlikely that the sensationalist predictions of a windfall of tuition relief nor the mandating of vouchers to religious schools that left-leaning commentators warned of will materialize any time soon.

Still, the decision is an unmistakable punctuation mark on a new road the court is taking, which seeks to put religious-educational and other organizations on a level playing field with secular counterparts.

“It’s an incredibly important decision,” said attorney Avi Schick, who frequently represents the frum community in religious liberty matters. “That doesn’t mean that it’s going to have any immediate or near-term impact on yeshivah funding. But this changed the law from permitting a state to direct funds to a religious institutions to requiring states to include religious schools in any funding program that funds private schools. That is a big deal in terms of doctrine, precedent and the message it sends about the role of religion in society.”  

If a Tree Falls in the Maine Woods…

Maine has many rural areas where the population is too sparse to support public high schools. To ensure that the children in these locations receive an education, the state runs a program that allows parents to designate a private school of their choosing to which Maine’s Department of Education transmits funds to cover or defray the costs of tuition. Qualifying schools must be accredited, but besides that there are few requirements for institutions to be admitted to the program, except one. In 1981, the state tacked on a requirement that schools be “nonsectarian,” essentially closing the door to backwoods Maine parents who participated in the program from choosing a religious institution for their children.

A few years ago, two sets of parents who wanted to send their children to decidedly Christian schools, whose curriculums and make-up are infused with the doctrines of their faiths, sued Maine for what they saw as an unfair practice.

Maine defended its position largely on two points: First, it claimed that the program was different from other school choice initiatives in that its goal was not to expand parents’ options, but rather to find an institution that could recreate public-school education.

Additionally, the state argued that its discrimination was within constitutional bounds since it did not categorically shut out schools that have religious affiliations, but rather argued that its own laws prohibited using public funds to pay for religious instruction.

The first circuit of the Federal Court of Appeals saw things Maine’s way and upheld its right to deny the parents tuition relief at the Christian schools they preferred.

Yet, a 6-3 majority comprised of the Supreme Court’s conservative-leaning Justices struck down the state’s restriction saying that doing so “promotes stricter separation of church and state than the Federal Constitution requires.”

“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” wrote Justice Roberts.

A Road to the Woods

To Court watchers, there was little surprise in the Court’s decision, as it took what seemed a logical step built on two other recent cases.

In 2017, Trinity Lutheran, the Court ruled against a Missouri program that awarded grants to schools to pay for rubber padding and other safety features at playgrounds, but that excluded any religious schools from receiving the funds. In a 7-2 ruling that cut across the Court’s ideological lines, justices said that the state was in the wrong for shutting out schools based on religious affiliation from benefiting from a program with a purely secular purpose. In that opinion Justice Roberts described Missouri’s exclusion as “odious to our Constitution.”

In a 2020 case, Espinoza, the Court considered a Montana school choice program that cut out religious schools pointing to its Blaine amendment. The amendments, present in many state’s constitutions, forbid state funding flowing to sectarian schools, which religious and school choice advocates have campaigned against for decades. The Court, in a 5-4 decision, told Montana that its exclusion also ran afoul of the Constitution.

“A State need not subsidize private education, but once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” wrote the Chief Justice in that opinion.

There was little explicit discussion of the Blaine amendments, but the Court’s conclusion essentially pulled the rug out from any state that wanted to enforce them.

In the present case, Maine argued, and the first circuit concurred, its program respected the lines set in Espinoza, since the program was ostensibly open to religious schools, just not to ones with programs that taught or fostered religion.

With Makin, Justice Roberts added a third volume to his Court’s incremental, but now robust, work on funding equity for religious schools.

“In Trinity Lutheran and Espinoza, we held that the Free Exercise Clause forbids discrimination on the basis of religious status. But those decisions never suggested that use-based discrimination is any less offensive to the Free Exercise Clause. This case illustrates why,” wrote the Chief Justice.

“This is the latest in a series of cases favoring religious institutions benefiting from government programs, and its one step further in what we see as a positive process,” said Rabbi Abba Cohen, Agudath Israel of America’s Washington, D.C., director. “It answers a question that was not quite clear before. We knew from Espinoza that you can’t discriminate on the religious identity of an institution, but here you had schools that are actually religious, teaching religious texts and belief, having times for prayer, and the Court said, they can’t be deprived of a generally available government benefit. It’s a statement of what the Court believes the Constitution is calling for when it prohibits hostility towards religion.”

Does It Make a Sound?

While it is sure the Makin ruling will erase Maine’s clause excluding religious schools from its books, as well as that of neighboring Vermont, which has a nearly identical program, it is unlikely that effects of the ruling will be felt quickly anywhere else.

In states with entrenched school choice programs like Florida and Ohio, parents have been able to apply benefits at religious schools for years already.

“There’s no other state with a school choice program currently that prohibited use at religious schools, but there was concern that if Maine won this case, that others might consider placing similar exclusions in place,” said Jason Bedrick, an educational research fellow at the Heritage Foundation.

In states like New York, New Jersey, and California, where teachers unions, the arch-foes of school choice, maintain a powerful influence on Democratic politicians, the ruling is also expected to have little immediate effect as they have no tuition assistance programs in place that would be subject to its implications.

Still, Mr. Bedrick said that the ruling will help focus the debate over school choice.

“The Court took the constitutional argument off the table,” he said. “I think this has always been more of a policy debate and that in most cases a fear of overstepping Constitutional bounds was more of a [cover]. This is going to clarify those discussions and allow the debate over school choice to focus on its merits versus their objections, without the distraction of arguing about whether there’s a constitutional problem.”

While the decision is being hailed in pro-school-choice circles, there is a potential for backlash, especially in states that currently lack such programs. New York seems far from seriously considering vouchers, tax credits or anything of the like, but it was not so long ago that former New York City Mayor Michael Bloomberg supported the expansion of Charter Schools and some Democrats in the state considered broader initiatives.

Since the COVID pandemic, school choice has gotten a boost even in some unlikely quarters, as parents searched for other options during extended closures dictated by teacher’s unions. Mr. Schick said it is impossible to predict precisely how things will play out, but it is certainly possible that the required inclusion of religious institutions will increase the resistance in left-leaning states to programs that support private schools. “Experience has shown that the one immutable law is the law of unintended consequences,” he said.

While the facts of Makin and the most immediate takeaways focused on school choice programs, even its technical ramifications reach a wide range of funding programs.

Even in states with no prospect of vouchers on the horizon, some religious schools take advantage of grants for STEM teachers, UPK programs, equipment, and other resources. Yet, in many instances they operated under the pall of state government opining that these programs must remain hermetically sealed from anything religious.

While these issues will still need to be fleshed out at the state level, the high Court sent a message that it need not be the case.

“Advocates from religious communities have lobbied for inclusion in programs like STEM and others, but once they got them, they still had to look over their shoulders not to be too religious in what they did,” said Michael “Avi” Helfand, vice dean at the Pepperdine Law School, who authored a brief on behalf of the Orthodox Union in the case. “Now, I no longer have to worry if an art teacher who is part of one of these programs does a project for Rosh Hashanah.”

Beyond education, grants for environmental protection, preservation, and social services from both federal and state sources also stand to be affected.

“This is a clear statement that if you get these grants, that doesn’t obligate you to take down religious symbols; they can’t force an entity to strip its religious character just because it’s receiving funding from the government,” said Rabbi Cohen.

One illustration could be economic development grants that New Jersey awarded to Lakewood’s Beth Medrash Govoha (BMG) and Princeton Theological Seminary that were slated to be used for libraries and an academic center. The ACLU sued the state to block the grants, and the appellate court agreed that sectarian institutions could not receive State funding.  The New Jersey Supreme Court vacated that ruling after BMG intervened in the litigation, but it sent the case back for administrative proceedings to inquire about the nature of the program.   “In light of the decision in Carson v. Makin, the ACLU lawsuit would have quickly been dismissed,” said Mr. Schick who represented BMG in the proceedings. “Today, that lawsuit simply could not stand.” 

A Reorientation

Makin and its predecessors rest on the shoulders of an earlier set of cases that opened the door for states that wanted to include religious schools in voucher programs or other funding initiatives. In perhaps the most prominent of them, Zelman, decided in 2002, the Supreme Court ruled that an Ohio program which allowed parents to opt for religious schools did not violate prior understandings of the Establishment Clause largely because money flowed not directly from the state to faith schools, but to parents, who then in turn had the option of using funds at the institution of their choosing.

The trend comes from other branches of the government as well. One of former President George W. Bush’s signature accomplishments was the Faith-Based Initiative, a program focused on encouraging religious organizations to partner with government in delivering social services and other programs. It established an office charged not only with overseeing the program, but with trying to move grant-giving to a neutral position on faith groups. Despite pressure from some liberal groups to defund the initiative, former President Barak Obama kept it running, giving it the security of bipartisan approval.

More recently, following a series of natural disasters, the government enacted new rules to allow for Houses of Worship to receive FEMA grants to repair their damaged structures, a move that met with wide bipartisan Congressional support.

Taken together, the moves represent a seismic shift in government’s attitude toward funding religious organizations and, more broadly, toward faith in the public square. 

For most of the second half of the 20th century, liberal advocates, with the support and urging of many powerful secularist Jewish groups, argued for an understanding of the Establishment Clause as demanding a radical separation between “Church and State.” As a result of their efforts, what was intended by the Founders as a guarantee that America would establish no single national taxpayer-supported church was transformed into a dictum demanding secularization of nearly anything government touched.

Emblematic of this approach, supported by a set of decisions by the high Court led by former Chief Justice Earl Warren, was the so-called “Lemon Test,” a rubric designed by a 1971 decision.

The standard, established in Lemon v. Kurtzman, set out three points to determine the constitutionality of government aid to religious groups: It must serve a secular purpose, neither advance nor impede religion, and not involve “excessive entanglement with religion.”

“Courts were focused on intent and entanglement; it was a very strict test, which very often religious entities failed to pass,” said Rabbi Cohen.

The standard has been chipped away many times by the Court in recent years, but a brief for Makin submitted by the National Jewish Commission on Law and Public Affairs (COLPA), joined by the Agudah and other major Orthodox organizations, called for it to be overturned.

Justice Robert’s opinion makes no mention of Lemon. Nevertheless, Rabbi Cohen feels the decades-old test has been effectively gutted.

“Over the last 15-20 years, the Court has moved so far away from Lemon that it didn’t even get a mention,” he said. “We wanted it overturned explicitly and called out as an unfair standard, but the effect of this opinion basically does that without saying so.”

No one seemed more aware of the shift than the Court’s dissenters, its three liberal-leaning justices.

“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” wrote Justice Sonia Sotomayor. “What a difference five years makes. In 2017, I feared that the Court was ‘lead[ing] us … to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.’ Today, the Court leads us to a place where separation of church and state becomes a constitutional violation.”

In place of the “wall” Justice Sotomayor decried the destruction of, the present Court has refocused its understanding of the Establishment Clause on ensuring that no religion is discriminated against, particularly over its secular counterparts.

“The Court has moved from worrying about entanglement and endorsement of religion to looking at equality and neutrality,” said Professor Helfand. “That’s a big shift.”