Coach May Take a Knee: Supreme Court Holds Termination for Private Prayer in Public at Public School Event Is Impermissible



Kennedy v. Bremerton School District, No. 21-418.  Opinion released June 27, 2022


Joseph Kennedy, a football coach for the Bremerton School District in Washington, lost his job because he knelt in prayer at the football field midpoint after games.

No formal proceedings or games were underway at the time.  

Fearing violation of the Establishment Clause, the school district disciplined the coach because the school district believed that observers would think that the school district endorsed the coach’s beliefs.

The Court found the school district erred in its perception of the law.  Writing for the Court, Justice Gorsuch commenced:

Both the Free Exercise and Free Speech Clauses of the First Amendment protect expressions like Mr. Kennedy’s. Nor does a proper understanding of the Amendment’s Establishment Clause require the government to single out private religious speech for special disfavor. The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike.

After several years of what appeared to be unobjectionable prayer at practice, positive feedback from another school caused Kennedy’s school district to be concerned about the impression he was creating with ‘inspirational talks,’ on-field prayer, and locker room prayer.  The school forbade Kennedy to engage in any religious activity to “avoid the perception of endorsement.”  Slip Op. at 3.  The school opined that school employees’ Free Exercise rights must yield to the school’s interest in precluding a perception of endorsement.

The coach ended his prayer practices after receiving correspondence spelling out the school’s position.  Nonetheless, after a game, he return alone to pray on the football field because he sensed that he had broker his commitment to God.

No one was in the studio at the time.

Kennedy asked that the school district permit him to continue his post game solitary prayer practice.  

The school district denied his request, reiterating that the couch could not while on duty engage in activities that might suggest endorsement. 

Media coverage was sparked when the coach bowed his head at midfield after the game.  Others joined the coach in prayer, while the Bremerton team was occupied singing the school fight song.

The School District posted notices forbidding public access to the filed, while discussions among officials observed that the issue was changing from the coach leading the students to the coach engaging in private prayer.  

Several rounds of testing and resetting prayer limits and accommodations ensued.  The School District issued a public explanation of its choices and rationales.

Coach Kennedy’s annual performance evaluation for 2015 was poor and rehire was not recommended.  The evaluation said that the coach failed to follow policy and failed to supervise student athletes after games.  Slip Op. at 8.

Kennedy sued the school district.  He was denied injunctive relief on his Free Speech and Free Exercise claims at the trial and appellate level. The U.S. Supreme Court denied certiorari, cautioning that denial of the petition did not indicate agreement with the courts below. 

Another round of litigation ensued.  The coach’s free speech claim was denied and he was again denied relief for his Free Exercise claim at the trial and appellate level.  The trial court held that the school district had a compelling interest in prohibiting post-game prayers which if permitted would violated the Establishment Clause. Slip Op. at 9. 

The Ninth Circuit, observing that the coach was on the football field only because of his position with the school, held that the School District would have violated the Establishment Clause if it failed to stop the prayer.  Avoidance of Establishment Clause violation was seen as a compelling state interest. 

Rehearing en banc in the Ninth Circuit was denied, with concern that it was error to hold that had the school not disciplined the coach, the school district would have violated the Establishment Clause. Others dissenting from the denial of rehearing questioned the perception that the Establishment Clause comes into play in any case in which a “reasonable observer” could perceive endorsement. Slip Op. at 10. 

The Supreme Court opinion in Kennedy stresses that the Free Speech and Free Exercise clauses work together, and that the Free Speech clause protects expressive religious activities, while the Free Exercise clause protects religious exercise as such. 

The added protection for free religious expression int he free speech clause reflects the Founder’s distrust of government attempts to regulate religion.

If a plaintiff meets his initial burdens, the state must show its justification is in compliance with case law.

The school district admitted its intent was to suppress Kennedy’s religious activity and its policies were not neutral. The performance evaluation included standards not generally applicable, such as post-game supervision of students.

Precedent recognizes that First Amendment rights are not shed at the schoolhouse gate.  Tinker v. Des Moines Independent School Distinct, 393 U.S. 503, 506 (1969).

Precedent also suggests a two-step inquiry will help to understand how free speech and government employment are to be approached.  At times, state efficiency in managing its services may outweigh a public employee’s free speech interests.  Slip Op. at 16.

Coach Kennedy’s prayers were not related to his public duties.  Any mantle of public investment in his role as a teacher had limits, including limits that would prevent private activity.  Slip Op. at 19.

Although generally the school district must satisfy strict scrutiny to justify its actions, in this case the school district could not prevail under a more lenient standard.

The Supreme Court has rejected the idea that the school district was justified in disciplining the coach, for to have forgone discipline, in the school’s view, would have violated the Establishment Clause.  Such a reading suggests a Constitution at war within its clauses, rather than acting in a complementary fashion. Slip Op. at 21. 

The Court announced that it has not only rejected Lemon v. Kurtzman, 403 U.S. 602 (1971), but also the extension of Lemon to an “endorsement” component featuring the perceptions of a “reasonable observer.”  Slip Op. at 22.  

The Establishment Clause cannot serve as a “hecklers’ veto” to proscribe religion based on “perception or “discomfort.”  Id.  

The government has no obligation to purge any material that an observer might consider to involve religion.  

History, practice, and understanding are to serve to analyze Establishment Clause claims in lieu of Lemon.  Slip Op. at 23.  

The Court was unpersuaded by what it perceived to be an 11th hour argument that petitioner coerced students to pray with him, as no support for this can be found in the record.  Slip Op. at 24-27.  Assertions of tacit or implied authority, relying on hearsay, offer no substantiation for such a claim.  Slip Op. at 27.  Coercion cannot be manufactured by ‘deeming’ any religious behavior to be coercive.  Slip Op. at 28. 

The Court vigorously rejected the nation that the First Amendment compels conflict among constitutional guarantees, concluding;

Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination. 

Slip Op. at 31-32.

Justice Thomas concurred to question whether the Court ought to consider the limited “public concern” Free Speech protection accorded public employees.  The Court does not indicate what an employer must do to justify any restriction on religious activity.  As there was no need to do so because the Court found the school district  could offer no constitutionally sound reason for its behavior,  Justice Thomas questions the intimation that the “balancing” test applied in free speech cases might be imported to srve in free exercise claims.

Justice Alito concurred to observe that the decision at hand does not establish what standard ought to apply to expression under the Free Speech clause, only that retaliation for expression “cannot be justified on any of the standards discussed.” 

Dissenting Justices Sotomayor, Breyer and Kagan found no authorization in the Constitution which would permit the conduct at issue in this case.  Moreover, overruling Lemon in this decision is of great consequent, as in doing so the Court rejects decades of concerns about endorsement. 

The majoriey read the record far too narrowly, Justice Sotomayor writes, overlooking the real community disruption caused by the petitioner. 

The issue was incorrectly framed, in her view.  The question is not the protection of private prayer at work but whether persona religious beliefs may be incorporated into a public school event. Sotomayor, dissent, Slip Op. 13-14.

The majority has overlooked that the public prayer at a public school comes close to being speech within the coach’s official duties, winch view would cause the speech to lose any First Amendment protections without regard to the conflict between the  clauses.

Permitting an individual’s religious practice in the context described violates the Establishment Clause,  particularly where public schools must maintain neutrality to fulfill their obligations.

Failure to address the tension between the constitutional clauses silently elevates one constitutional interest over another, an undesirable practice.

The idea that the perceptions of a reasonable observer ought to be considered in evaluating Establishment Clause claims ought not be so handily dismissed, for it is that very perception that has give rise to much concern in public schools.  Nor should the question of coercion be dismissed, as it is not unreasonable to consider whether by their very nature public schools, in structure and administration, embody at least a modicum of coercion. 

21-418 Kennedy v. Bremerton School Dist. (06_27_2022)

 

If Maine Subsidizes Secondary Schools, It May Not Exclude Sectarian Schools, Supreme Court Concludes


CARSON, AS PARENT AND NEXT FRIEND OF O. C., ET AL. v. MAKIN, No.  20-1088.  U.S. Supreme Court June 21, 2022.


Maine is the most rural state in the nation.  Some geographic “School Administrative Units” have no public secondary schools through which to provide the education promised by the state. To ameliorate the strain families who must make arrangements for their children, Maine offers tuition assistance to parents so that their children may access secondary education through qualified schools outside the geographic confines of the School Administrative Units.

At one time, Maine did not distinguish between sectarian and non-sectarian schools for purposes of funding parents’ preferences.  In 1981, Maine determined that this practice was in violation of the Establishment Clause of the First Amendment.

Parents who selected schools with religious orientation challenged Maine’s denial of tuition assistance as violative of the First Amendment Free Exercise Clause, triggering what appears to be an annual (or at least semi-annual) head on collision between the Establishment Clause, which precludes government endorsement of religion, and the Free Exercise Clause, which forbids government interference with religious practice.

While the petitioners’ litigation was pending, the Supreme Court struck down a Montana statute that forbade aid to any church controlled school as offensive to the Free Exercise Clause.   Espinoza v. Montana Department of Revenue, 591 U. S. ___ (2020).  While this removed from the consideration of the U.S. Court of Appeals for the First Circuit any reliance on prior precedent that would affirm Maine’s refusal to provide tuition assistance that would permit students to attend sectarian schools.

Nonetheless, the First Circuit distinguished away Espinoza because Maine, unlike Montana, concerned itself with religious use of funds as opposed to a blanket prohibition based on religious identify. Moreover, the First Circuit perceived another distinguishable difference between Montana and Maine, because Maine intends to provide the equivalent of a public school education not otherwise available in a student’s location.  As public school education is secular, no constitutional harm is done by limiting tuition assistance to parents whose children will attend secular schools.

The Supreme Court’s majority has concluded that the Maine tuition assistance scheme fails to comport with the Free Exercise Clause because it conditions the availability of an otherwise available public benefit based on a requirement of ‘non-sectarianism’ within accredited schools.

That the Free Exercise Clause prohibits indirect burdens on religious exercise has recently been re-emphasized by the Court, not only with respect to participation in public contracts, as in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. ___ (2017), but also with respect to providing funding assistance to private education, as in Espinoza, supra.  In neither case can religion be interposed as a disqualifier precluding access to benefits otherwise available to all. 

The Court noted that a state need not fund private education.  If a state chooses to do so, however, the state may not preclude participation because of religious affiliation. 

In dissent, Justice Breyer expressed fear that the majority view — which requires other citizens to subsidize, through taxation — aid to religious views they might find objectionable — threatens to foment the kind of discord that the tension between the Establishment and Free Exercise Clauses were intended to inhibit.  This is all the more so in this case, where not just religious affiliation but religious instruction within the curriculum is in issue. 

In Justice Breyer’s view, the Religion Clauses serve the nation well by precluding state involvement in religion and by prohibiting state restraint of religion.

Justice Breyer sees the majority’s decision as introducing religion into public education, the provision of which is contemplated by Maine’s statutory scheme.  

Notwithstanding the not infrequent tension between the religion clauses, their overall purpose is to function as complements in creating a government that is benevolently neutral. The Court has previously expressed that the Religion Clauses ”permit religious exercise..without sponsorship or interference,” as this would “insure that no religion be sponsored or favored, none commanded, and none inhibited.” Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 669 (1970).  

Separately dissenting, Justice Sotomayor has expressed dismay that the Court has chartered a dangerous course, essentially eviscerating the Establishment Clause in service of the Free Exercise Clause.  Justice Sotomayor observes that, rather than stressing that the government need not fund religious activity, the Court has embraced the idea that the states may now be compelled “to subsidize religious indoctrination with taxpayer dollars.”  Sotomayor, J., Dissent, Slip. Op. at 3.

Carson v. Makin, 596 U.S. ____ (2022)

Sectarian Versus Secular Civil Rights: Supreme Court Permits Church Employers Latitude in Defining Employee Roles and Rights

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (July 8, 2020); St. James’ School v. Biel, No. 19-348 (July 8, 2020).


In this challenge to churches’ capacity to determine their own rules of employment, Justice Alito wrote for the Court’s majority; Justices Thomas and Gorsuch wrote separately in concurrence; and Justices Sotomayor and Ginsburg dissented.


Teachers at the religious schools in the cases now before the Court have responsibilities similar to those described in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012).   These teachers do not, however, have titles associated with professed religious persons or functions.

Mid-twentieth century precedent established that religious institutions have the capacity to decide matters of church governance without state interference.  Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952).

Here, one elementary school teacher who taught all subjects, including religion, complained to the Equal Employment Opportunity Commission (“EEOC”) that the school administration’s determination to change her to part-time status was age discrimination.  The other plaintiff claimed discrimination in discharge because of her need for breast cancer treatment.  Both responding employers stated that their decisions were bawsed on employee performance.

The question is how the principles of independence constitutionally assured in church governance apply to church autonomy in employment decisions, in which churches enjoy a “ministerial exception” to otherwise applicable laws for religious positions.  An individual’s role in conveying the church’s mission and the trust conferred on that individual are significant, but the title “minister” in itself will not require exemption nor is it necessary to confer exemption.  Where both teachers in these cases were entrusted with performance of religious duties, the ministerial exception appropriately applies. The determination whether the exception applies cannot be made by rote review of titles and checklists as ultimately a court, unschooled and unskilled in religious matters, must look to what an individual does, not what he or she is called.

The hiring exemption permitting churches to prefer members of their religion in hiring decisions is of a different character than the ministerial exception, and the principle applicable there do not need to be imported to the ministerial exemption.  Judicial inquiry into who is a member of a faith and who is not would impermissibly intrude on a church’s definition of participation.

A rigid formula for characterizing employment as religious is inapt.  “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teachers threatens the school’s independence in a way that the First Amendment does not allow.”  (Slip Op. at 26-27.)

Justices Thomas and Gorsuch concur.  Justice Thomas asserts that courts must defer to church determinations of what is ministerial, as this is inherently a theological question that cannot be answered by civil law.

Justices Sotomayor and Ginsburg dissent.  The dissenting justices point to the predominantly secular functions performed by the teachers in these cases, their lack of religious training, and the absence of any religious requirement attaching to their positions.  Employers are required to conform to generally applicable laws and Congress has created exemptions where appropriate.  The ministerial exception is judge made law.  Because of its sweep, which would permit religious animus, the exception must be narrow, as it is subject to abuse.  It is to be preferred to make constitutional determinations on a case by case, holistic, basis.  The “functional status” analysis adopted here, focused on what an employee does, rewrites Hosanna-Tabor, making a two justice concurrence in that case into the prevailing opinion.

Where the civil rights of thousands of employees in religious organizations are in issues, analytical vagueness and deference to religious entities determinations invites abuse, permitting religious bodies to determine for themselves what the law is ad absolving the institutions of responsibility for religious animus.  Justice Sotomayor’s application of Hosanna-Tabor would lead to a conclusion contrary to that of the majority.  Biel was a teacher who participated in religious functions with a half day’s training in religious pedagogy. Morrissey-Berru taught various subjects and taught religious matters from a workbook chosen by the church.

Neither plaintiff ought to have bee barred from asserting claims based on a ministerial exception.  Neither was a minister, neither was trained as such, neither had a leadership role in the faith community, and both function predominantly as academic teachers. Depriving them of civil rights based o a small amount of time engaged in religious activity is harsh, especially where no religious reason was proffered for the churches’ acts concerning plaintiffs’ employment.

Our Lady of Guadalupe v. Morrissey-Berru, No. 19-267 July 8, 2020

 

Among Friends: Strict Separation Advocates Square Off Against School Choice Proponents in Challenge to Montana Determination to Dismantle School Choice Tax Credit

Espinoza v. Montana, No. 18-1195 (U.S. Sup. Ct.) Oral argument January 22, 2020.


Dozens of amicus briefs have been submitted to the Supreme Court concerning the Court’s consideration of the constitutionality — or not — of a Montana tax-advantaged school choice program.  A thumbnail of their arguments is presented here.

 

 

Entities Submitting Amicus Briefs for Respondents Arguments
Baptist Joint Committee for Religious Liberty; The Evangelical Lutheran Church In America; General Synod of The United Church of Christ; Reverend Dr. J. Herbert Nelson, Ii, As Stated Clerk of The General Assembly of The Presbyterian Church (U.S.A.) “No funding” provisions in state constitutions promote religious liberty. Nothing in the 1972 re-enactment of the Montana Constitution suggests that its ‘no religious funding’ provisions were grounded in religious animosity. Principles of federalism compel the federal government to refrain from interference in state determinations concerning state constitutional matters: states must remain free to provide greater separation of church and state than the federal constitution requires.
Tennessee Education Association The Court is urged to bear in mind that public education serves society, where funding for private or church affiliated education is focused on individuals. In the absence of evidence that the Montana constitution’s ‘no aid’ provision is grounded in religious bigotry, the provision should not be struck down.
Colorado, California, Hawaii, Massachusetts, Michigan, Minnesota, New York, Oregon, And Washington The state amici are among the 38 states having state constitutional ‘no aid’ provisions. Amici submit that states have a profound interest in managing public education, that considerations of school funding issues are not “one size fits all” matters and are well within the ‘play in the joints’ of the competing religion clauses, and that such matters should be and remain within the powers of the states to consider.
Montana Association of Rabbis The Montana tax credit, if upheld, inures overwhelmingly to the benefit of Christian schools, and as such produces discrimination against Jews, who are a religious minority within the state. The discrimination which would ensue from upholding the tax credit is insupportable.
Religion Law Scholars Traditional considerations of the proscriptions of the Establishment Clause permits a benevolent neutrality regarding religion. The state’s activity with respect to religion need not be rigid, yet care must be taken to preclude religious accommodation from becoming state sponsorship of religion. In order to avoid state sponsorship of religious institutions, a state may determine, as Montana has, not to fund programs such as the scholarship tax credit in issue here.
National Disability Rights Network, The Arc of The United States, Council of Parent Attorneys And Advocates Twenty one disability rights advocacy groups join to oppose preferential tax treatment for private educational institutions. The groups fear that because the private schools are not bound by the federal laws governing public education of children with disabilities, such as the Individuals with Disabilities in Education Act (“IDEA”), the gains won by such legislation will be lost, and private schools will bear no accountability for their treatment of students with disabilities.
National School Boards Association et al.  More than a dozen school board associations, school systems associations, school administrators’ associations, and other public education associations and advocates submit that the Montana Supreme Court’s determined neutrality with respect to state involvement in religion is lawful and that expansion of Trinity Lutheran to public education would undermine long standing principles governing state involvement in religion.
American Federation of Teachers, National Education Association, Montana Federation of Public Employees, And Montana Quality Education Coalition Teachers’ unions urge dismissal of the case because petitioners’ interests in the relatively small tax credits being challenged are too extenuated to confer Article III standing. Precedent requires dismissal of third party challenges to others’ tax interests: to hold otherwise would flood the courts with third party actions.
Public Funds Public Schools Amicus submits that Montana Constitution Article X, Section 6 reflects the state’s commitment to the expenditure of public funds for public schools. Diversion of public funds to private schools is insupportable, particularly where doing so undermines student achievement.
Religious And Civil Rights Organizations The “play in the joints” of the federal religion clauses leaves room for states to offer more robust religious freedom protections than those accorded by the federal constitution. Montana need not require that every program that benefits public institutions benefit religious institutions: declining to permit public funding of private entities at all in order to maintain neutrality is well within the state’s rights. Upholding the Montana Supreme Court decision would not disturb decisions about property taxes, but failing to uphold the state’s decision would upend decades of precedent that precludes state involvement in funding religion. The state’s determination not to fund religious activity does not infringe upon its exercise.
State of Maine School districts lacking resources with which to operate public schools may arrange for private schools to operate in their stead, or may pay tuition for students to attend a non-sectarian school, but funding to religious schools is not permitted. Notwithstanding that Maine’s is not a voucher program, Maine questions the direct diversion of public funds to religious entities and urges the Court to affirm the Montana determination as so doing will aid Maine in resisting challenges to its approach. Maine argues that precedent recognizes that refusal to fund religious entities does not violate the Free Exercise Clause, and Trinity Lutheran does not disturb that result.
Montana Constitutional Convention Delegates Participants in the 1972 Montana Constitutional Convention assure the Court that Article X, Section 6 was vigorously debated. The convention repudiated the religious animosity of its 19th century counterpart, but chose to enact the ‘no aid’ provision in furtherance of a fundamental state commitment to public education. Not hostility toward religion but a commitment to government restraint with respect to involvement in religious matters guided the enactment of the ‘no aid’ provision.
Montana and Northern Wyoming Conference, United Church of Christ The Montana-Northern Wyoming Conference of the United Church of Christ are social justice advocates who perceive that advocacy for public education falls within those social justice goals. The UCC Conference points out that questioning the underlying legislative motivation that led to the enactment of Montana Constitution Article X, Section 6 is not proper in an “as applied” challenge such as the one in issue in this case. Even if it were proper, the motivation in 1972 was to further public aid to public education without animosity toward any faith or faiths, and that re-enactment purged the provision of any of its tainted history
Freedom From Religion Foundation, Center for Inquiry, American Atheists, And American Humanist Association Advocates urge the Court to frame the case not as one of discrimination against religion, but of impermissible state-compelled aid to religion. No such aid was within the framers’ contemplation, such aid has been historically precluded, and to hold otherwise would contravene both history and tradition. Indirect aid through tax credits is no less odious than direct aid. In the larger sense state abstinence from engagement in funding religious activities fosters religious liberty. Amici note that non-involvement in religious activities precludes preferencing one faith over another or compelling any citizen to fund a faith anathema to his or her own. Moreover, state funding of religious schools invites state regulation of those same schools, inviting entanglement that may prove undesirable by both state and church.
Entities Submitting Amicus Briefs for Petitioners
Arguments
Forge Youth Mentoring Forge Youth Mentoring, which provides Christian assistance to at-risk youth, urges the Court to recognize that Trinity Lutheran teaces that the state may not preclude religions from participation in generally available public benefits applies to education. An overly broad reading of Locke, involving direct aid to religious formation, is not apt here and particularly not so following Trinity Lutheran.
Billy Graham Evangelistic Association, Samaritan’s Purse, National Legal Foundation, Pacific Justice Institute, And International Conference of Evangelical Chaplain Endorsers Amici argue that Montana erred in its fundamental perception of the monies in issue as being owned by the state. The state does not own all because it can tax all, nor does it own the taxpayers’ contributions to private educational institutions in this case by virtue of provision of a credit against tax for such donations. Precedent supports the conclusion that the donation of private money to a private entity does not become state money by virtue of offering the credit. Zelman holds that a neutral program which permits choice concerning the direction of funds need not offend the Establishment Clause.
131 Current And former State Legislators State legislators unequivocally contend that Blaine Amendments reflect not only a shameful history but also present a contemporary impediment to state efforts to advance educational benefits for its citizens.
Justice And Freedom Fund, Institute for Faith And Family, And North Carolina School Choice Attendance at private school is an acceptable means of compliance with Montana’s compulsory education requirement. Where parents must choose private education because public education conflicts with their values, the provision of tax advantages for private education is a counterbalance to the parents’ underwriting of objectionable public schools through taxation. Where private choice directs the flow of private funds for educational and not religious ends the Establishment Clause is not implicated. The Court should continue on its course of applying flexible non-discrimination principles rather than to uphold inflexible ‘no aid’ laws.
Arizona Christian School Tuition Organization And Immaculate Heart of Mary Catholic School The application of the Montana constitution’s ‘no aid’ provisions directly discriminates against religious organizations and because it does so in connection with a generally available program or benefit — education — it cannot survive analysis under Trinity Lutheran. Amici argue that the Blaine Amendment, readopted in 1972 with knowledge of its history, bears a shameful history and is facially unconstitutional.
Montana Family Foundation The Montana Family Foundation asserts that the Religion Clauses reflect and require a ‘wholesome neutrality’ concerning government involvement in religion, a view upheld in Trinity Lutheran which is not present in Blaine Amendments or in Montana’s no-aid amendment.
Center for Education Reform, et al., Amici support the attainment of educational excellence and are of the view that a primary factor in successful school outcome’s is a family’s ability to direct the choice of school their children attend. Montana’s prohibition of access to a generally available benefit — education — runs afoul of Trinity Lutheran.Families have a recognized and constitutionally protected liberty interest in where their children attend school. Denying school choice because of religion violates bedrock constitutional principles. By comparison, the state interest in any indirect aid to religious that may flow from permitting a tax credit for private donations is miniscule. The antipathy to Catholicism undergirding the Blaine amendments would not be recognized by the Framers, but the interests of parents in their children and in freedom from religious discrimination would have been applauded, and should be today.
Rusty Bowers, Speaker of The Arizona House of Representatives, And Other State Legislative Leaders Legislative leaders of three states worry that the consideration of Blaine amendments in general and in this case in particular is ill-founded. As it is grounded in individual choice, the Montana program does not raise Establishment Clause concerns, but the denial of equality within a generally available benefit raises Free Exercise concerns that compel reversal of the Montana decision.
Jerry And Kathy Armstrong, Lashawn Robinson, Gwendolyn Samuel, Yi Fang Chen, And Pacific Legal Foundation In Support Parents of students and the foundation assert that school choice is a primary component of a parent’s “right, responsibility and privilege” to raise his or her child. School choice programs are critically important in providing an educational setting which will permit a child to thrive, and such programs are particularly critical where parents would not otherwise have the means to access such a setting.
Jewish Coalition for Religious Liberty Amicus observes that Montana’s Blaine Amendment is an impediment to students who would benefit from scholarships to Jewish Day School., which would educate them, ground them in their faith, and prepare them for leadership roles. The costs of such schools has been termed a “community crisis,” which would be alleviated by a determination that the Blaine Amendment, grounded in a history of religious antipathy, can no longer stand as an barrier to educational opportunities.
Christian Legal Society, United States Conference of Catholic Bishops, The Union of Orthodox Jewish Congregations of America, American Association of Christian Schools, The Anglican Church In North America, Association of Christian Schools International, The Church of Jesus Christ of Latter-day Saints, Council for American Private Education, Council for Christian Colleges & Universities, Ethics & Religious Liberty Commission, Evangelical Council for Financial Accountability, The General Conference of Seventh-day Adventists, Institutional Religious Freedom Alliance, The Lutheran Church – Missouri Synod, National Association of Evangelicals, Queens Federation of Churches, And World Vision, Inc. (U.S.) Amici urge the Court to continue to recognize that the First Amendment protects religious liberty through government neutrality respecting religion. Trinity Lutheran supports these principles by holding that the government may not preclude participation in a generally available benefit because of religion. That preclusion is clear here where no parent may avail himself or herself of a tax credit available to all because it concerns donation to a sectarian entity. Government neutrality is not manifested by discrimination against religion but by permitting the participation of all without concern for religion. The core constitutional concern of protection of voluntary and private choice in belief is best served by equality in governmental aid to religious and non-religious schools, a position which is “both formally and substantively neutral.”
Independence Institute Amicus presents a detailed history of the 19th century Blaine Amendments, illustrating the antipathies toward disfavored religions that these laws supported and promoted, underscoring that in that day “sectarian” applied only to those disfavored groups, and arguing that the application of the Montana Constitution’s “no aid” provision violates both the First and Fourteenth Amendments of the U.S. Constitution.
Alliance for Choice In Education Amicus submits that precluding faith-based schools from participation in scholarship benefits sharply reduces their likelihood of obtaining favorable educational outcomes for students. The exclusion ignores history and likewise ignores the importance of parental capacity to seek educational opportunities consistent with their values. Research supports a correlation between choice and good outcomes. The Locke decision’s “play in the joints” between the religion clauses does not endorse discrimination against religion. Where the purpose of the tax credit was to benefit family choice generally and no one religion particularly, the guidance of Trinity Lutheran would favor inclusion of both non-sectarian and sectarian schools.
The Liberty Justice Center And American Federation for Children Amicii submit that the application of Blaine Amendments to school choice programs keeps children from low income families captive, that the amendments turn the Establishment Clause on its head by punishing rather than protecting minority religions, and that Blaine Amendments, which are grounded in religious animus, violate the Equal Protection clause.
Georgia Goal Scholarship Program, Inc. Georgia’s corollary to the Montana tax credit program is critically important to students. Grounded in religious animus and racial bigotry, Blaine Amendments cannot be permitted to stand in the way of minority children’s education. The application of these amendments to minority students in the ante-bellum and post-civil war south forced African American students into industrial education and denied them the classical liberal education available to others.
The Rutherford Institute A relic of 19th century anti-Catholicism, Montana’s Blaine Amendment, like those of the thirty seven states that retain such provisions, discriminates among religions in violation of the principles of neutrality toward religion required by the federal Establishment Clause.
Americans for Prosperity And Yes. Every Kid. The Montana constitution does not reach tax credits, yet the state Supreme Court applied the constitution in violation of the rights of those who could not be verified as non-religious. Tax credits are not appropriations of public funds. The Montana Supreme Court erred in establishing a religion of secularism. Although not raised in prior proceedings, amici submit that Montana has engaged in unconstitutional viewpoint discrimination by denying equal third party funding to all students.
The Becket Fund for Religious Liberty Because they are grounded in religious bigotry, Blaine Amendments are presumptively unconstitutional. Reenactment of Montana’s Blaine Amendment in 1972 did not cure its racial animus. Application of the Montana no-aid provision violates the principles articulated in Trinity Lutheran.
Senators Steve Daines, Tim Scott, John Kennedy, And Marsha Blackburn And Representative Greg Gianforte Montana’s no-aid provisions remain exactly as they were in 1889. The application of the Blaine Amendment discriminates among religions and cannot survive analysis under Trinity Lutheran. Locke concerns direct funding of clergy education and does not embrace the kind of global exclusion of religious entities from available benefits that Montana has upheld here.
Montana Catholic School Parents, The Catholic Association Foundation, And The Invest In Education Foundation Amici parents provide anecdotal evidence of the benefits of children’s placement in religiously affiliated schools. The anti-Catholic history of the Blaine Amendments precludes their present application. The application of Montana’s ‘no-aid’ provision interferes with parents’ fundamental interests in governing their children and their children’s educations.
Oklahoma, Georgia, Arizona, Alabama, Alaska, Arkansas, Kansas, The Commonwealth of Kentucky By And Through Governor Matt Bevin, Louisiana, Governor Phil Bryant of The State of Mississippi, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, And West Virginia Montana could not and did not cure the constitutional deficiencies in the application of the no-aid provision by dismantling the program in its entirety. Federal intervention is warranted under the Supremacy Clause, which requires that the federal courts deny the effect of unconstitutional state laws. Even were state Blaine Amendments considered to be constitutionally acceptable, they do not reach tax credits which continue to permit private control of educational funding, particularly where it is individual students and not religious institutions who benefit from the scholarships. Upholding the Montana decision will jeopardize the programs of other states, some of which have concluded that their tax credit programs do not violate the First Amendment. The harm from upholding Montana’s decision would flow to other benefits and would fall particularly on low income families.
The Honorable Scott Walker Wisconsin’s former governor and school choice proponent argues that the direct funding of religious education that was present in Locke is not present in this case and that in any event Locke should be overruled, as any status-use distinction to be drawn with respect to funding cannot survive constitutional scrutiny. The attempt to distinguish Locke away in Trinity Lutheran is not sufficient: Locke must be overruled in its entirety.
The Cato Institute Montana’s Article X, Section 6 violates the Free Exercise Clause as applied to Montana’s tax credit program, for exclusion from public programs because of religion evinces hostility toward religion and lacks the neutrality that the constitution prescribes. While the Establishment Clause forbids government entanglement with religion, it likewise prohibits the government from handicapping religion. In avoiding entanglement with religion, the state must guard against discriminating against religions. Application of the Montana Blaine Amendment creates obstacles solely on the basis of religion and as such violates the First Amendment. It is error to consider a tax credit to be an expenditure of public funds. And exclusion of schools because of religion creates rather than diminishes conflict within communities, for those who are forced to forego choice will be at odds with those who would impose their choice upon them.
Edchoice, Reason Foundation, And The Individual Rights Foundation Proponents of educational and individual choice join with free market libertarians to offer the observation that states legislate in favor of school choice year after year with full awareness that litigation will ensue and with bring with it families’ fears that their children’s schooling will be disrupted by the litigation. Social science documents improved educational outcomes for students. The constitution does not support exclusion of religion from public benefits. Public school students do not suffer because of school choice programs but become attuned to the existence of many views within society. Finally, the provision of school choice programs may diminish the amount a state needs to expend on education, creating a savings benefit.
The Opportunity Scholarship Fund This Oklahoma Scholarship Granting Organization notes that Oklahoma’s laws are substantially similar to Montana’s, but Oklahoma’s programs have been upheld as constitutional under Zelman. The organization is concerned, however, that any acceptance of a scholarship by a family with a child with a disability will be seen as accepting a benefit which would preclude receipt of federal disability support. Oklahoma argues that this concern would be alleviated by the Court’s ruling that exclusion of religious schools from the scholarship program is unconstitutional.
Pioneer Institute This institute, describes itself as one that fosters civic discourse, submits that application of Blaine Amendments, grounded in anti-Catholic bigotry, offends the First Amendment. The institute provides a detailed history of state and federal Blaine amendments.
The Center for Constitutional Jurisprudence This litigating branch of the Claremont Institute, which focuses on the law as conceptualized by the Framers, observes that religious establishment flourished in the colonies but concern about religious compulsions followed the revolution, leading to the promulgation of the protections of individual liberty from state intrusion that the First Amendment guarantees. The First Amendment operates to constrain the federal government in order to protect religious liberties, not to deny them or to codify hostility toward religion. Montana’s laws and interpretations of those laws evidence that hostility and, as such, cannot survive constitutional analysis, as they violate the Free Exercise Clause.
The American Center for Law And Justice The ACLJ argues that it is not constitutionally permissible to deny generally available benefits on the basis of religion. The Locke decision, questionable in its own right, is not controlling in this case, as it involved direct aid in training for professional ministry. The ACLJ questions the extreme and disruptive logical outcomes of the exclusion of benefits on the basis of religion. Such exclusion would permit charitable deductions to nonprofits seeking to reduce famine but not to support Jewish community life, or permitting contributions to Ivy League schools but not Jesuit universities.
Mackinac Center for Public Policy This center for free market public policies asserts that school choice programs in Michigan have significantly enhanced student educational attainments. A determination upholding the Montana decision could impact Michigan’s programs, relegating students who have benefitted from choice to poorly performing public schools.
The Foundation for Moral Law This foundation supports strict construction of the constitution. Montana’s laws and actions violate the federal constitution, as they make hostility toward religion a state policy, which the First Amendment forbids. The Framers feared that the government would penalize citizens for not believing as the state thought that they should, which is precisely the result of the Montana decision. The First Amendment constrains the government from inhibiting religion and as such, it precludes policies which exclude religion entirely from general benefits. The state may not unduly burden religion nor may it exclude religion. The Trinity Lutheran decision should direct the outcome in this case.
The Solicitor General of The United States Montana’s exclusion of sectarian schools because they are sectarian schools violates the Free Exercise Clause because so doing imposes special disabilities upon religion. The state cannot avoid the impact of the no-aid provision, grounded in religious antipathy, by attempting to fashion a remedy that would end the program entirely. As the Montana law was unconstitutional from the beginning, the Montana Supreme Court could not by any measure remedy the statute but had only the power to acknowledge the statute’s constitutional deficiency.

 

When Constitutional Clauses Collide:  Citizens’ Challenge to Montana’s Tax Advantaged School Choice Plan Seeks First Amendment and Equal Protection Review.

Espinoza, et al. v. Montana Department of Revenue, et al. No. 18-1195.  Oral argument set for January 22, 2020.


Many families hope that education will pave the way to successful adulthood.  Frequently private schooling is sought to serve that end, but many families find that no matter how arduously they work, the funds necessary to obtain that private schooling remain elusive:  scholarship help is a necessity for many who want to send their children to private school.   

In 2015, Montana enacted legislation providing a dollar-for-dollar tax credit, up to $150.00 annually, for donations to scholarship providing non-profit entities.  The non-profit entities would in turn use the donations to award scholarships, paid directly to the schools.  

Some 28 states have enacted at least 57 programs similar to Montana’s, called “school choice” programs.   Almost all private schools in Montana were qualified recipients of these tax advantaged scholarships. Yet very many of these schools were directly or indirectly affiliated with religious institutions.

Montana’s Constitution, Article X, Section 6, Part 1 prohibits the payment of state money, directly or indirectly, to fund religious activity.  This limitation was incorporated in the tax credit statute. Following enactment of the tax credit, state tax authorities promulgated a regulation echoing the preclusion of the use of tax money for religious entities.

Fearing that scholarships were in jeopardy, parents sued the state to enjoin it from precluding awards of scholarships to religious educational institutions, asserting that precluding aid would violate their First Amendment and Equal Protection rights.  The state countered that permitting the scholarships would run afoul of the state’s First Amendment and state constitutional obligations. 

The parents prevailed in the trial court but on appeal the Supreme Court of Montana, unable to split the constitutional baby between sectarian and nonsectarian beneficiaries of the tax credit program, declared the entire statute unconstitutional.  

The matter is now before the Supreme Court. 

Petitioners’ Challenges.  Petitioners urge the United States Supreme Court to reject the Montana Supreme Court’s wholesale invalidation of the entire tax credit statute as in violation of the federal religion clauses.  The parents ask the Court to determine the Montana state constitutional amendment forbidding aid to religion to be unconstitutional as applied to them, and to find Montana’s actions to be discrimination against religion in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.

Petitioners point out that Montana’s prohibition on state funding of any religious activity had its origins in the anti-Catholic Blaine Amendments of the 19th Century.  As religion is an inherently suspect clause, the state constitution as applied offends the 14th Amendment Equal Protection clause, petitioners argue.  

The wholesale ban on any and all state aid to religion does not support government neutrality but rather evinces hostility toward religion and, as such, cannot survive constitutional review, petitioners argue.  This is true, petitioners assert, whether any of the tests of Zelman v. Simmons-Harris, 536 U.S. 639 (2002) or Lemon v. Kurtzman,   403 U.S. 602 (1971) or the teachings of the recent Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012  (2017) are applied.

Zelman requires only a religiously neutral program with choice centered in the individual, not the state, which petitioners assert is true of the 2015 Montana legislation.  In contrast, the state’s ban of all aid is hostile, not neutral, and works to deprive individual families of choice. Petitioners submit that however awkward it may be in application, Lemon in no sense endorses the antipathy to religion that Montana’s actions evince.

Montana’s dismantling of the tax credit program, which was available to all without respect to religion, advances no secular purpose where, petitioners argue, its only effect is to trample the rights of the religious with no concern for students.  Petitioners urge that the preclusion of state funding of religious professionals’ training, found to be unconstitutional in Locke v. Davey, 540 U.S. 712 (2004), is inapposite, for that case concerned direct aid to churches in developing their clergy, which is not true of the Montana case.   

Montana’s Response.  Montana does not argue mootness, but does argue that the Montana Supreme Court’s invalidation of the tax advantaged school choice plan does away with constitutional concerns.  All aid has been precluded: no hostility, disparity or discrimination can be found where the statute no longer exists.  

Montana perceives that Espinoza spotlights the intersection of church/state traditions:  non-discrimination is crucial to religious freedom. The Establishment Clause permits but does not compel aid to religion. If the state is opposed to aiding religious schools the state can, as it has done here, decline to offer any aid at all.  Because petitioners concede that this is true, Montana argues, no constitutional claim remains.  

There can be no intrusion on the Free Exercise of religion where no program exists at all, the state submits.  Invalidation of the entire program works no coercion, as  the invalidation restrains the government, not the individual.

Montana denies that the 1972 re-enactment of the state constitutional no-aid clause ratified or endorsed the religious antipathy that gave rise to the 19th century Blaine Amendments.  Montana offers that the new constitution, enacted in 1972, sought to protect religious liberty by means of strict state separation from religion.  

In this case the state supreme court has protected religious freedom by enforcing the structural barrier between religious schools and the government that the no-aid clause contemplates.  Striking down the tax credit in its entirety ensures that no one is preferred and that no one is penalized for exercising their faith. 

Historic opposition to state funding of religious entities demonstrates the constitutionality of such prohibitions, the state contends.  Trinity Lutheran is not on point, for the tax credit plan does not involve a generally available benefit.

The state has not banned aid to education.  Moreover, where thirty eight states fall in line with Montana’s position, this is history to which the U.S. Supreme Court ought to defer.

The U.S. Supreme Court should not interfere with the constitutional and judicial authority of the state by enforcing a statute that the state Supreme Court has held to be unconstitutional, the state submits.   If it is conceded — and it is — that the state could decline to provide a school choice program, then it cannot be correct that if a school choice program is forbidden by the state constitution, then the application of the state constitution must be in violation of the federal constitution, and, therefore, a void statute must be enforced.

As there is no longer a school choice tax credit program, there is no unequal treatment, and therefore no Equal Protection clause violation.  Nor is there any Establishment Clause issue whether the state chooses to offer greater separation than the federal religion clause requires.

The state offers that the Supreme Court cannot recognize an amorphous “free exercise” violation where petitioners have not identified any violation. The Free Exercise clause inhibits the government: that some difficulty in exercising religion might beforeall individuals does not rise to the level of unconstitutional government prohibition on the free exercise of religious rights.

The operation, or not, of a tax advantage works no prohibition on free exercise.  Anyone can give to scholarships as they see fit: they just will not receive a tax credit.

There is no generally available benefit from which petitioners have been excluded because the tax credit program has been declared void ab initio

Without more, the state constitution’s no-aid close does not violate the Free Exercise Clause. In all, the fact that the Establishment Clause may allow a measure does not mean that the Free Exercise Clause compels it.  The state notes that where school choice is concerned, Justice Beyer has inquired of the fate of the interests of the families who would not wish to fund religious education at all.

Montana cautions that if the Supreme Court were to invalidate Montana’s no aid clause, grave constitutional concerns would arise.  Zelman does not require a single answer to whether  a “no aid” provision helps or hinders religion  Petitioners’ position lacks good sense: it is unimaginable that a statute declared unconstitutional under state law can spring back to life following federal constitutional review.

Zelman observed that choice that includes religion need not violate the Establishment Clause but declining funding is not the establishment of religion.  Lemon poses no problem because there are no unconstitutional effects created by the Montana Supreme Court’s invalidation of the school choice program.  Entitlement to a tax preference is not an establishment clause issue. Similarly, across the board disentitlement works no entitlement. 

Petitioners’ Reply.  Petitioners liken the state’s position to that of the authorities who shuttered schools rather than conform to the constitutional command to desegregate. 

Where the state emphasizes that petitioners concede that the state need not offer an aid program, the petitioners point to a comparable concession by the state:  the state cannot avoid the reality that the provision of a program that excluded religious schools would violate the federal constitution. Where protected classes are concerned, the Supreme Court has recognized that invalidating a program to prevent inclusion is just as discriminatory as exclusion from the start.  

It is not true that the Montana Supreme Court ‘harmonized’ federal and state constitutional interests.  Rather, the state understood that severability — permitting secular while forbidding sectarian aid — was a constitutional impossibility.  Eliminating a program to avoid unconstitutional results does not avoid constitutional concerns but confirms them.

Trinity Lutheran cautions that the Court ought not engage in a wooden application of Free Exercise principles:  indirect coercion or indirect penalties are within the ambit of the Free Exercise clause.  

The only reason the school choice tax credit was eliminated was concern over aid to religious schools.  The result in this case is worse than that in Trinity Lutheran, for the Espinoza petitioners have already relied on the availability of aid.  The additional financial burden and potential educational exclusion imposed on the petitioning parents falls within the concerns the Free Exercise Clause contemplates.

Locke concerned direct funding of professional clergy education, a circumstance not present here.  Further, petitioners argue that there is no “use” limitation on Trinity Lutheran’s holding.  Such an argument is irrelevant, nonetheless, where status discrimination exists: aid will be denied based only on religious status.  If religion and religious education cannot be disentangled, the state disproves its own argument: status v. use is a distinction without a difference.

Contrary to the state’s assertions, the weight of history is not on the state’s side, petitioners counter.  Most early considerations of government involvement in religion concerned direct aid to churches. This is not the case here, and there is no overwhelming reason to believe that aid that could benefit religious and secular schools would be objectionable to the founders. 

The proffered reasons for the wholesale reenactment of the Blaine Amendment in 1972 are of no moment, petitioners insist, where the significance of the measure is that of singling out religion for different treatment, which strikes at the core of Equal Protection clause concerns.  Even if it were accepted that a law’s constitutionality, or not,  cannot be determined by the motives of its enactors, the effects of a statute are reasonably evaluated in addressing constitutional concerns.  

As Montana has entirely banned aid to students seeking religiously affiliated private education, Zelman’s principles of neutrality and individual choice are decimated.

The question is not of “resurrection” of a defunct statute:  the issue is that Montana’s Supreme court determination forever precludes aid.  Similarly, the state’s resuscitation rhetoric must fail, as statutes are routinely revived following judicial review: so doing works no “inverse federalism.”

Petitioners submit that the federalism fears described by the state are phantasms.  There exists ample room for Montana to work within the “play in the joints” of the religion causes.  Montana may enact a school choice program without violating the Establishment Clause but it need not, and this would not violate the Free Exercise Clause. In contrast, adopting a wholesale ban on aid to religion would violate both religion clauses.  

Principal Briefs

Brief for Petitioners

Brief for Respondents

Reply Merits Brief

Joint Appendix

Amicus Submissions:  Note that the United States, as Amicus for Petitioners, Will Participate in Oral Argument 

The United States

Petitioners’ Amici

131 Current and Former State Legislators

Agudath Israel of America

Alliance for Choice in Education

American Center for Law & Justice

Americans for Prosperity and Yes Every Kid

Arizona Christian School Tuition Organization and Immaculate Heart of Mary Catholic School

Billy Graham Evangelistic Association et al.

Center for Constitutional Jurisprudence

Center for Education Reform et al

Christian Legal Society et al

EdChoice, Reason Foundation, and The Individual Rights Foundation

Forge Youth Mentoring

Foundation for Moral Law

Georgia Goal Scholarship Program Inc

Honorable Scott Walker

Independence-Institute

Jerry and Kathy Armstrong et al

Jewish Coalition for Religious Liberty

Justice and Freedom Fund et al

Liberty Justice Center and American Federation for Children

Mackinac Center for Public Policy

Montana Catholic School Parents, Catholic Association Foundation, and Invest in Education Foundation

Montana Family Foundation

Oklahoma et al

Opportunity Scholarship Fund

Pioneer Institute

Rusty Bowers Speaker of the Arizona House of Representatives et al

Senator Daines et al

The Becket Fund For Religious Liberty

The Rutherford Institute

Respondents’ Amici

American Federation of Teachers et al

Baptist Joint Committee for Religious Liberty

Colorado et al

Freedom from Religion Foundation et al

Montana Association of Rabbis

Montana Constitutional Convention Delegates

Montana Northern Wyoming Conference United Church of Christ

National Disability Rights Network et al

National School Boards Association et al.

Public Funds Public Schools

Religion Law Scholars

Religious and Civil Rights Organizations

State of Maine

Tennessee Education Association