Frank S. Ravitch and Larry Catá Backer Discuss Carson v. Makin, --- U.S. (No. 20–1088; June 21, 2022), Establishment, Free Exercise and the Constitutional Obligation to Fund Religious Education

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Frank S. Ravitch and I have just published the 4th Edition to our casebook, Law and Religion: Cases and Materials (West Academic, 2021; ISBN 978-1-64708-764-7). The Preface nicely describes our aims for the book:

This book focuses on Law and Religion. The book covers three general topics: 1) Church/State Law (issues arising under the First Amendment to the United States Constitution and statutes such as the Religious Freedom Restoration Act); 2) Religious Law (the role and substance of law in various religious traditions); and 3) Comparative Law and Religion (the law relating to religious freedom in other countries). Most books in this field have little or no material on the latter two topics. The bulk of this book is devoted to First Amendment Law, but the book also provides an overview of Jewish Law (Halakha), Islamic Law (Shari’ah), Buddhist conceptions of law, Catholic Canon Law, Protestant conceptions of law, and Hindu law as well as significant background on comparative Law and Religion. The discussion of First Amendment law integrates cases, questions and narrative to provide an in-depth understanding of the Religion Clauses of the United States Constitution.

Each topic in this book begins with a brief narrative discussion of the topic, followed by relevant cases and articles, and finally notes and questions. The goal of the narrative is to provide students with context (the forest) so that they can grapple with the many complex issues that are raised in the cases and articles (the trees). The sections on religious law and comparative law will follow a similar format.

We have tried to add a comparative law element to the study of the jurisprudence of religious liberties in the United States by tying that study to the broader global conversations and currents in the development of legal frameworks for the protection of religious liberty. We hope all of this can be accomplished in ways that are useful for law students not just in the US (though US students are our principal audience) but elsewhere as well. 

To enrich the casebook materials Frank and I have started producing a series of video discussions of key cases from the jurisprudence. We hope students and faculty may find the discussions of some use as they consider the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.   These may be used by faculty and students to enrich their consideration of the casebook materials or as a springboard to deeper discussion of themes and complications raised in the cases.  

We discuss the pedagogy of the casebook here: Frank S. Ravitch and Larry Catá Backer Talk Pedagogy and Approach as they Introduce the 4th Edition to their Casebook, Law and Religion: Cases and Materials (West Academic, 2021)

 To date we have videos discussing the following cases: 

1.  Fulton v. City of Philadelphia, 593 U.S. -- (2021)

2. Everson v. Board of Education of Ewing Tp., 330 U.S. 1 (1947)

3. Engle v. Vitale, 370 US 421 (1962), and Sch Dist Abington Twnshp v. Schempp, 374 US 203 (1963).

4.  Lee v. Weisman, 505 U.S. 577 (1992).

5.  Student Initiated Prayer and Moment of Silence Cases (Santa Fe Independent School Dist. v. Doe, 530 US 290 (2000); Wallace v. Jaffree, 472 US 38 (1985).

6.  Creationism, Intelligent Design, and Evolution; Reading Edwards v. Aguillard 482 US 578 (1987) and Kitzmiller v. Dover Area Sch. Dist, 400 F.Supp.2d 707 (2005).

7.  Ceremonial Deism, the Role of Custom and Tradition, Marsh v. Chambers, 463 U.S. 783 (1983), and Town of Greece v. Galloway, 572 U.S. 565 (2014).

8.  Free Exercise, Establishment and the Mandatory Funding of Religious Education, Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022)

9.  Kennedy v. Bremerton School District, 597 U.S. ___ ( No. 21-41827 June 2022): Murder in the Cathedral--The Lemon Test is Dead, Establishment Reduced to Spectre; Long Live Free Exercise as a Jurisprudence of History (27 June 2022)

The 2021-2022 Term of the Supreme Court produced three important Religion Clause decisions. For this conversation we focus on Carson v. Makin, --- U.S.  (No. 20–1088; June 21, 2022).  The case in important making explicit  the extraordinary transformation of Religion Clause jurisprudence that were marked by Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___; and Espinoza v. Montana Department of Revenue, 591 U. S. ___.  As the court explained in the syllabus to Carson:

In Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___, the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity. The Court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate[ ] against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” 582 U. S., at ___–___. And in Espinoza v. Montana Department of Revenue, 591 U. S. ___, the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church, sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools. 591 U. S., at ___.

In the process the Supreme Court made explicit the primacy of the Free Exercise Clause over the Establishment Clause; the residual nature of Establishment and its likely increasingly narrow construction; the triumph of neutrality in the provision of either rights or privileges; and the elaboration of a vision of the Religion Causes that understands its protections principally through the lens of the protection of individual religious rights and with that the development of a state obligation to ensure that those rights are not merely protected but positively vindicated. As a consequence, the obligation of states under the Establishment Clause must give way to the rights of individuals to ensure their enjoyment of their rights to free exercise of religion. As the Chief Justice declared in Carson:

as we explained in both Trinity Lutheran and Espinoza, such an “interest in separating church and state ‘more fiercely’ than the Federal Constitution . . . ‘cannot qualify as compelling’ in the face of the infringement of free exercise.” Espinoza, 591 U. S., at ___ (slip op., at 18) (quoting Trinity Lutheran, 582 U. S., at ___ (slip op., at 14)). (Carson, slip op. at 10).  

The only question remaining is the substance of the vindication in the form of some sort of neutrality measure satisfactory to the court (eg, either a broad formal neutrality standard or a narrower functional neutrality standard). The consequences have yet to be explored: effectively reading Employment Division v. Smith, 494 U.S. 872 (1990) out of the jurisprudence, confining Locke v. Davey, 540 U.S. 712 (2004) to its facts, and transforming the constitutional baseline of the Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) into a constitutionally mandatory neutrality test that limits application of the Establishment Clause against government.  The wall of separation between Church and State (Everson v. Board of Education (1947)) has not been breached.  Rather, like the Maginot Line, it has merely been easily outflanked by subsequent jurisprudence. 

 

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The Carson case involved as challenge to Main's program of tuition assistance to parents who live in school districts that neither operate a secondary school of their own nor contract with a particular school in another district. Under that program, parents designate the secondary school they would like their child to attend, and the school district transmits payments to that school to help defray the costs of tuition. Eligibility was limited to nonsectarian schools. The issue before the Court was this: "whether this restriction violates the Free Exercise Clause of the First Amendment." The holding, on its surface was also unremarkable:

The “unremarkable” principles applied in Trinity Lu- theran and Espinoza suffice to resolve this case. Maine offers its citizens a benefit: tuition assistance payments for any family whose school district does not provide a public secondary school. Just like the wide range of nonprofit organizations eligible to receive playground resurfacing grants in Trinity Lutheran, a wide range of private schools are eligible to receive Maine tuition assistance payments here. And like the daycare center in Trinity Lutheran, BCS and Temple Academy are disqualified from this generally available benefit “solely because of their religious character.” 582 U. S., at ___ (slip op., at 10). By “condition[ing] the availability of benefits” in that manner, Maine’s tuition assistance program—like the program in Trinity Lutheran—“effectively penalizes the free exercise” of religion. Ibid. (quoting McDaniel, 435 U. S., at 626 (plurality opinion)).(Carson, slip op. at 9).

 Nonetheless, behind this bland statement lies a substantial transformation of the jurisprudence of the Religion Clauses the consequences of which will bedevil the courts for years. To some extent the case represents the culmination of the the logic of cases starting with Zelman v. Simmons-Harris, 536 U.S. 639 (2002) and perfectly plausible protections of private choice for individuals and policy flexibility for government. That trajectory has now moved from the simple beginning of free and credible choice to the construction of a system of mandatory deference under a broadening construction of the sphere of free exercise of religion in which establishment itself becomes a sign of discrimination, but in which neutrality (in fact) is a function of capacity. 

The Video recording of  this conversation may be accessed HERE.

 It is also available on the Coalition for Peace & Ethics YouTube Channel HERE.