Constitutional Law Prof Blog

Court to Hear Arguments in Religious School Funding Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear arguments on Wednesday in Carson v. Makin, the case testing whether a state can exclude private schools with an overtly religious educational mission from a state program that provides public funds for private education. Here's my preview, from the ABA Preview of United States Supreme Court Cases, with permission:

ISSUE

Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or "sectarian," instruction?

FACTS

Maine’s Constitution requires local governments to provide free public education to the K-12 students in the state. Maine divides its schools across 260 local school administrative units (SAUs), serving nearly 180,000 students.

Maine gives SAUs the option to either operate their own schools “or otherwise provide for students to participate in [kindergarten through grade twelve] as authorized elsewhere” by statute. Me. Rev. Stat. Ann. tit. 20-A, § 1001(8). More than half of the SAUs do not operate their own public schools. For those SAUs, state law provides two options: they can contract with another public or approved private school for some or all of its students, or they can pay tuition for its students at another public school or “the approved private school of the parent’s choice at which the student is accepted.” Me. Rev. Stat. Ann. tit. 20-A, § 5204(4). Maine is careful to say that this is not a typical school-choice or voucher program. Instead, Maine only allows parents who live in SAUs with neither their own public schools nor with contracts with other schools to choose from “a small group of private schools who demonstrate to the State that the educational program they provide is a suitable equivalent to public education.” (Less than 5,000 students live in SAUs that contract with other schools or that pay students’ tuition at a private school.)

Maine law sets certain requirements for approved private schools to receive public funds for tuition. Among other things, any private school approved for the receipt of public funds must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Me. Rev. Stat. Ann. tit. 20-A, § 2951(2). Private schools typically self-identify as sectarian with the Maine Department of Education. But if there’s any question, the Department

considers a sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith. While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented.

Two sets of parents sued the state, arguing that the exclusion for tuition payments to sectarian schools violated the Free Exercise Clause, the Establishment Clause, and the Equal Protection Clause. One set of parents, David and Amy Carson, send their daughter to Bangor Christian Schools, a sectarian school with an overtly religious educational mission. The other set, Troy and Angela Nelson, currently send their daughter to Erskine Academy, a nonsectarian school, but would like to send her to Temple Academy, a sectarian school also with an overtly religious educational mission. Under state law, the plaintiffs’ SAUs could not pay for tuition at these schools.

The district court ruled in favor of the state, and the United States Court of Appeals for the First Circuit affirmed. This appeal followed.

CASE ANALYSIS

This case implicates a couple strands of free-exercise jurisprudence. Let’s take a look in order to give some context to the parties’ arguments.

First, under the Free Exercise Clause, a generally applicable government action that is neutral with regard to religion is constitutional, so long as the action is rationally related to a legitimate government interest. That’s a very low-level test, and most government action will almost always pass.

But on the other hand, government action that targets religion, or that is based on anti-religion animus, must be narrowly tailored to meet a compelling government interest. That’s a very stringent test, and most government action will fail.

Next, the two religion clauses give states some limited room to make religion-based choices in designing their public policies. For example, the Court ruled in Locke v. Davey that a state could operate a program that provided scholarships for talented postsecondary students, even if it excluded students who pursued a degree in devotional theology. 504 U.S. 712 (2004). The state in that case adoption the exclusion pursuant to its own state constitution and in order to avoid direct state support of religion. The Court held that the exclusion fell in the “play in the joints” between the two religion clauses. On the one hand, the Court said that the state could include devotional theology students in the scholarship program without violating the Establishment Clause. But on the other hand, it said that the state’s exclusion didn’t violate the Free Exercise. The Establishment Clause didn’t compel the state to exclude devotional theology students, but the Free Exercise Clause didn’t require the state to include them, either. Under the play in the joints, the state could choose.

Finally, the Court more recently has interpreted Locke to say that a state may exclude the religious use of a state benefit, but that it may not exclude an otherwise qualified individual or organization based on religious status. The difference is between how a person or organization uses state resources, and what that person or organization is. For example, the Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, (2017), that Missouri violated the Free Exercise Clause when it categorically excluded a Lutheran church’s school from a state grant program to resurface school playgrounds. The state excluded the school based only on the school’s affiliation with the church (its status), not because the school would use the funds for a religious purpose (its use).

Most recently, the Court ruled in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), that a state that provides tax credits for contributions to organizations that provided scholarships to private schools must also provide tax credits for contributions for scholarships to private schools controlled by a “church, sect, or denomination.” Again, the state impermissibly excluded religions from its benefits program based only on a school’s religious status, not its religious use of public benefits.

Against this backdrop, the parents argue first that the tuition exclusion for sectarian schools violates the Free Exercise Clause, because it “is neither neutral toward religion nor generally applicable.” They say that the Court “has long held that a law lacking either characteristic is subject to strict scrutiny,” and that the exclusion must fail.

The parents argue next that the First Circuit was wrong to apply the “use/status distinction” to dodge this result. They contend that there is simply no basis for the distinction. They assert that the Framers elected to protect religious “exercise,” and not belief or conscience, and that this covers both use and status. Moreover, they claim that the Court has never used the distinction “as grounds for eluding strict scrutiny of laws that discriminate based on religion.” To the extent that Locke says otherwise, the parents argue that the Court should overrule it.

But even if the Court applies the use/status distinction, the parents argue that Maine’s exclusion must fail. They say that the exclusion “forces students to choose between their free exercise rights and receipt of a public benefit,” that it “discriminates based on religious use and status in equal measure,” and that “it is not narrowly targeted at an essentially religious endeavor,” or use.

The parents argue that because the exclusion discriminates against religion, Maine must proffer an “historic” and “substantial” interest. But they say that Maine’s asserted interests are insufficient. For one, they contend that Maine’s interest in avoiding an Establishment Clause violation by funding sectarian education is legally flawed under Court precedent. For another, they claim that Maine’s interest in ensuring that public funds “support only the rough equivalent of public education” is neither historic nor substantial, and that the exclusion does not support it, in any event.

The parents argue next that the exclusion violates the Establishment Clause. They say that the exclusion lacks a secular purpose, that it has a principal effect of inhibiting religion, and that it requires excessive government entanglement with religion. As to that last point, they contend that the state, in order to enforce the exclusion, “must make intrusive inquiries and judgments regarding the school’s religious curriculum and activities” and, worse, must make judgments about a school’s religious status versus its religious use of public funds.

Finally, the parents argue that the exclusion impermissibly discriminates against religious schools in violation of the Equal Protection Clause. The parents point to the Fourteenth Amendment’s framer’s “concern[] with ensuring that religious educators supported by the Freedman’s Bureau could continue their efforts to educate the freedmen in the wake of the Civil War.” They say that “[i]t would be perverse” to hold that the Clause means less today than it did to the framers of the Fourteenth Amendment.

Maine counters first that the exclusion does not violate the Free Exercise Clause. Maine contends that this case is really about public education, and that its exclusion is merely designed to ensure that private schools that receive public tuition funds provide an education that substantially equivalent to public education. The state says that “religious education is nothing like a public education”: “An education that includes proselytization and inculcation in specific religious beliefs and supports the exclusion of some children and families is antithetical to a public education.” Maine asserts that while parents are free to provide their children with this kind of religious education, the Free Exercise Clause does not require the state to support it. Maine says that the exclusion is designed only to ensure that private schools that receive state fund provide the equivalent to a secular public education; it is not designed to target religion, or out of any anti-religion animus.

Maine argues that the Court has recognized that a state need not extend a public-benefits program for religious use, even if a state cannot deny participation in a public-benefits program based on religious status. The state claims that its system and criteria fall on the “use” side, and that its system and criteria fall in the permissible play-in-the-joints between the two religion clauses.

But even if the Court treats the exclusion as targeting religion, Maine argues that it satisfies strict scrutiny. The state says that it has a compelling government interest in providing a secular public education. And it claims that the exclusion is narrowly tailored to achieve this interest, because it only excludes religious uses of public funds, consistent with its interest in providing a secular public education.

As to the Establishment Clause, Maine argues that the parents’ approach is wrong, and “would turn that clause on its head.” That’s because Maine’s exclusion is designed to prevent the use of public funds for religious practices, not to promote religion. The state says that “[a]ny Establishment Clause concerns weigh heavily” in its favor, as the exclusion, if anything, helps to avoid Establishment Clause violations.

Maine argues that the same arguments that the exclusion does not violate the Free Exercise Clause also mean that the exclusion does not violate the Equal Protection Clause. 

Finally, Maine argues that the parents lack standing. The state says that “it is speculative whether a favorable ruling will result in the relief they seek,” because the evidence suggests that their preferred schools might not accept public funds. Maine claims that if the schools won’t accept public funds, any relief that the Court could grant would not redress their alleged injury, because the children would not be able to attend the schools at public expense, anyway.

(The government, as amicus in support of Maine, makes substantially similar arguments.)

SIGNIFICANCE

The Court in recent years has dramatically expanded religious liberties and the role of religion in public life. In rulings favoring religion over anti-discrimination laws, requiring state and local governments to treat religious organizations on par with secular organizations (even when that means that the government must support religion), and creating extraordinary exceptions for religions to broadly applicable and religiously neutral laws, the Court has moved incrementally, but manifestly, to expand religious liberties.

This case gives the Court a chance to expand religious liberties once more, or to cabin the expansion. In this case, it’ll likely come down to the use/status distinction. On the one hand, the Court could expand religious liberties by abandoning the use/status distinction altogether, or to blur the distinction by ruling that Maine’s exception applies to the religious private schools’ status (not use). This is not far-fetched. After all, the distinction is relatively new, since Trinity Lutheran, and, as Justice Neil Gorsuch argued in Trinity Lutheran and Espinoza, the line between status and use can be murky.

On the other hand, the Court could cabin the expansion by drawing a hard line between use and status, and ruling that that Maine’s exception applies to religious private schools’ use of the funds (not their religion status). This isn’t far-fetched, either; indeed, the facts support it: Maine introduced evidence that it applies the exemption only to schools that promote a faith or belief system, or teach the material through faith. If so, the Court’s ruling here would buck the Court’s larger trend toward greater religious liberties and a larger role for religion in public life.

Finally, Maine gave the Court a potential off ramp with its standing argument. The Court could rule that the parents lack standing for the reasons Maine says. This seems unlikely, though: Maine pitched this argument in its brief in opposition to the parents’ petition for certiorari, and the Court decided to take the case, anyway.

Court to Hear Arguments in Mississippi Abortion Ban Case

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court will hear oral arguments today in Dobbs v. Jackson Women's Health Organization, the case testing Mississippi's ban on abortion after 15 weeks of pregnancy . . . and Roe v. Wade itself. Here's my argument preview, from the ABA Preview of United States Supreme Court Cases, with permission:

FACTS

In 2018, Mississippi enacted the Gestational Age Act. The Act prohibits doctors from performing an abortion on a woman who is more than 15 weeks pregnant. (In determining the length of a pregnancy, the clock starts running at a woman’s last menstrual period, or “LMP.” As a result, the parties sometimes say that the Act bans abortions after “15 weeks LMP.”)

The Act contains two exceptions. The first one allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “medical emergency.” The Act defines a “medical emergency” as a situation where, because of a woman’s physical condition or illness, a doctor must perform an abortion in order to save the woman’s life or to prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”

The second exception allows doctors to perform an abortion on a woman more than 15 weeks pregnant in the case of a “severe fetal abnormality.” The Act defines a “severe fetal abnormality” as “a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of live-saving medical treatment, is incompatible with life outside the womb.”

A doctor who “intentionally or knowingly” violates the Act is subject to license suspension or revocation.

On the same day that the Act took effect, Jackson Women’s Health Organization (JWHO) and one of its doctors sued. JWHO is the only abortion provider in Mississippi; it performs abortions up to the 16th week of a woman’s pregnancy. JWHO argued that the Act violated the fundamental right to abortion under Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), and sought an injunction against its enforcement.

The district court granted a permanent injunction, and the United States Court of Appeals for the Fifth Circuit affirmed. This appeal followed.

CASE ANALYSIS

For almost 50 years, since Roe v. Wade, the Supreme Court has recognized that a woman has a fundamental right to an abortion. For almost 30 years, since Casey, the Court has said that a state can regulate abortion before a fetus is viable outside the womb only insofar as the state regulation does not create an “undue burden” on a woman’s right to an abortion. After viability, a state may ban abortion entirely, but the state still has to provide an exception for the life or health of the woman.

Mississippi’s ban on abortion after 15 weeks of pregnancy runs headlong into this framework, or at least tests its limits. That’s because fetal viability occurs around 22 to 24 weeks of pregnancy, and an outright ban before that time (at 15 weeks of pregnancy) plainly creates an “undue burden,” at least for some women.

Mississippi takes on this framework directly and argues that the Constitution does not protect a woman’s right to abortion. It claims that Roe and Casey “are grievously wrong, unworkable, damaging, and outmoded,” and that the Court should overrule them. The state says that because the Constitution does not protect a right to abortion, the Court should scrutinize its Act under mere “rational basis review,” the low-level, deferential standard that the Court uses to analyze state regulations of economic matters and interests that are not fundamental. Under this standard, Mississippi asserts that the Court should uphold its ban, because the ban is rationally related to the state’s interests in “protecting unborn life, women’s health, and the medical profession’s integrity.”

But even if the Court declines to overturn Roe and Casey and continues to recognize the fundamental right to abortion, the state argues that the Court should reject Casey’s viability benchmark. The state says that the “viability rule has no constitutional basis, it harms state interests, and it produces other severe negative consequences.”

Mississippi offers two alternatives to the viability line: the Court could rule that the Act survives any level of scrutiny (including the most rigid “strict scrutiny”) and put off a determination of what specific level of review applies; or the Court could “clarify the undue-burden standard” and hold that the Act does not create an undue burden. Under this latter option, Mississippi asserts that the Court could interpret the undue-burden standard to mean that a state could prohibit pre-viability abortions if the state restriction does not erect a substantial obstacle to “a significant number of women” seeking abortions. Under this approach to the undue-burden standard, Mississippi contends that its Act does not create an undue burden, because JWHO only performs abortions up to sixteen weeks of pregnancy, and “so the Act reduces by only one week the time in which abortions are available in Mississippi.”

JWHO counters first that the Court should not overturn Roe and Casey. JWHO says that the Court in Casey already considered all the arguments that Mississippi makes for overturning Roe—and rejected them. As a result, it claims that “Casey is precedent on top of precedent,” and that the case for retaining Roe and Casey has only grown stronger in the nearly 30 years since Casey, and the Court’s repeated reaffirmations of the fundamental right to pre-viability abortion.

Moreover, JWHO asserts that there is no reason to revisit Roe and Casey or the viability benchmark. JWHO says that a woman today still has “the personal autonomy and bodily integrity interests that underpin” the fundamental right to abortion, and that the viability line protects those interests “in a principled and workable way.” JWHO also contends that nothing has changed in the fundamental liberty interest that Roe and Casey protect. It says that if anything, “the years since Casey have only reinforced the importance of access to legal abortion for gender equality.” For all these reasons, JWHO contends that there is no reason to revisit Roe and Casey or the viability benchmark.

JWHO argues that Mississippi’s proffered alternatives to the viability benchmark are unworkable, and only “confirm that the Court was right in Casey to retain the viability line.” It says that lower courts could not administer any standard other than the “undue burden” standard “against the inevitable cascade of state abortion bans that would follow if the Court” changes the standard. And it claims that the state’s version of the “undue burden” standard would, as a practical matter, eviscerate Roe and Casey.

(The government weighs in to support JWHO and makes substantially similar arguments.)

SIGNIFICANCE

Dobbs is almost certainly the most important case this Term, and probably the most important case in the last several Terms, or even decades. That’s because it puts front and center a nearly 50-year-old precedent that is a principal focal point in constitutional law and politics. Political conservatives have fought for decades to gain a majority on the Court that is willing to overturn Roe v. Wade, while political progressives have fought to preserve it. At the same time, Roe v. Wade has served as an organizing principle in national, state, and even local politics for both the right and the left.

That said, Roe really is a super-precedent. The Court has reaffirmed it time and again, and flatly rejected strong calls to overturn it, including in Casey, where the Court laboriously considered, and rejected, all the arguments against it. In fact, the Court reaffirmed the Casey framework twice in the last five years, first in Whole Woman’s Health v. Hellerstadt, 136 S. Ct. 2292 (2016), and just last year in June Medical v. Russo. 140 S. Ct. 2103 (2020). Those cases were close, to be sure, but the rulings still stand.

But with Justice Amy Coney Barrett’s replacement of Justice Ruth Bader Ginsburg (and Justice Brett Kavanaugh’s earlier replacement of Justice Anthony Kennedy), the Court today has six justices who would almost certainly rule that the Constitution does not protect a fundamental right to abortion. Still, that doesn’t ensure that the Court will rule that the Constitution does not protect a fundamental right to abortion. That’s because two or more of those six may vote to uphold Roe and Casey under principles of stare decisis, even if they disagree with Roe and Casey on the merits. (Chief Justice John Roberts already telegraphed some support for stare decisis in this context when he famously voted to overturn Louisiana’s abortion restrictions in June Medical based on the Court’s ruling in a similar case in Hellerstadt—even though he dissented in Hellerstadt. It’s not obvious that his approach to stare decisis in June Medical will carry over to Roe and Casey, however.)

If so, Mississippi is ready with its two alternatives. These would allow the Court to validate the fundamental right to abortion but abandon the undue-burden test, the viability line, or both. The Court could nominally affirm Roe and maybe even Casey, while in reality taking large chunks out of them. Given the Court’s incremental approach to overturning other long-standing precedents, this is a real possibility.

One final note. The Court already this Term heard oral arguments in two other critical abortion cases, U.S. v. Texas and Whole Woman’s Health v. Jackson, both arising out of Texas’s unprecedented restriction on abortion. Those cases are obviously related to this one insofar as they address a state’s restriction on the fundamental right to abortion. But the core issue in those cases is procedural, not (necessarily) substantive—whether the plaintiffs can sue to stop Texas from implementing the law.