Religion & Liberty Online

School choice is in jeopardy in a case before the Supreme Court

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While the case before the Court concerns rural Maine, the implications for parents across the nation are clear: state funds should continue to be available to parents for religious schools and is no violation of the Establishment Clause.

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The difference between a “Christian organization” and an “organization that does Christian things” might seem like a distinction without a difference. But it is precisely this difference that is at the heart of the question presented to the U.S. Supreme Court in Carson v. Makin, a school-choice case that the justices are scheduled consider on Dec. 8, 2021.

The case involves families who live in towns in rural Maine too small to support secondary schools in a state that makes education for all not just a right but also mandatory. For nearly 150 years, Maine has administered one of the oldest school-choice programs in the nation to address this problem. And for more than 100 of those years, families who qualified for the financial benefits of the scheme could freely decide where their children would be educated.

But in 1980, Maine’s attorney general advised the state government that providing benefits for families who elected to send their children to religious schools violated the U.S. Constitution. Acting on this guidance, the state legislature later amended the law to exclude religious schools from the choices available to Maine families who otherwise qualified for the program. The attorney general’s opinion and the law that followed is based on an erroneous understanding of the Establishment Clause and an egregious disregard for the Free Exercise and Equal Protection Clauses of the U.S. Constitution. It is the privilege of my firm, First Liberty Institute, to serve as co-counsel alongside Institute for Justice to the families impacted by this law.

To affirm Maine’s discriminatory law, the First Circuit Court of Appeals found that while it is not permissible for the state to discriminate on the basis of the religious status of the schools selected by Maine parents, it is permissible for the state to discriminate on the basis of the religious use of the funds that would be expended on behalf of those families. What’s the difference? To most people there isn’t one.

It is a near certainty that the oral arguments in December will engage the legal distinction between “status” and “use” in the context of First Amendment jurisprudence, and it will be interesting to see how the justices wrestle with this distinction when the Court’s ruling is made sometime in 2022. Given the prescience of several justices who often tend to foresee the cultural and social implications of not just the outcomes of cases but also the grounds on which those outcomes are based, such issues will likely make at least an appearance in one or more of the Court’s published opinions.

It is not just Maine families who should be interested in the outcome of this case. All Americans, whether or not they are religious, stand to be impacted by the Court’s decision. The distinction between “status” and “use” considered by the lower court is the first step down a disturbing path and is problematic for two main reasons.

First, a status/use distinction in the law will require the next court to define those “religious things” that constitute “religious use.” Is St. Joseph’s Catholic School able to accept students under the Maine scheme as long as the school does not celebrate weekly Mass for the students? What if the school excludes clergy from its staff? Are a few nuns as teachers permissible? Or are the nuns only permissible if they happen to be teachers rather than teach at the school as a means of fulfilling their religious vocation? Once the principle is inevitably extrapolated to individuals, how do we differentiate between a “Muslim” and a “person who does Muslim things”? How do we differentiate between a “Jew” and a “person who does Jewish things”? Such a legal distinction not only invites but requires judicial determination of a host of questions beyond the competence of even the most sympathetic court.

Second, this shift would signal a break between a person’s identity and the essential features of that identity. Our culture has already taken more than a few steps along this unhelpful path. Am I a Christian—or a person who does “Christian things,” whatever those things may be? Is my wife a teacher, or is she a person who teaches things? Is our family pet a dog or a creature who does dog-like things? The problem with such an understanding of identity is that a non-Christian is free to do Christian things, and every Christian does plenty of non-Christian or even un-Christian things. Non-teachers teach things all the time. And while a bit more of a stretch, it is not inconceivable to imagine a non-dog that does dog-like things.

Our identities so conceived would atomize us so completely that collective identities and distinctions would be lost. Each person’s identity becomes a discrete list of preferences, actions, and opinions. How do we then define the common good around which our communities are organized? How do we conceive of a rational basis for solidarity in a world in which we have no ability to read ourselves into the circumstances of others and no rational basis for empathy?

The judges of the First Circuit know, I suspect, that funding that passes to religious organizations is not a per se violation of the Establishment Clause and have adopted this “status/use” distinction as an end run around clear precedent. They have not actively conspired to sow the seeds for the deconstruction of the identities of those who engage in religious practice. However, in adopting this artificial distinction regarding the institutions that the religiously observant have built, this is precisely what they have done.

Trey Dimsdale

Trey Dimsdale serves as counsel for First Liberty Institute (FLI) and executive director of the Center for Religion, Culture & Democracy, an FLI initiative focused on education and cultural advocacy for freedom.