Media eyes are trained on the U.S. Supreme Court's December 1 argument on Mississippi's abortion restrictions, preceded by a fast-tracked November 1 hearing about the stricter law in Texas. But don't neglect the Court's December 8 hearing and subsequent decision on tax funding of religious schools in the potentially weighty Carson v. Makin case (docket #20-1088).
University of Baltimore law Professor Kimberly Wehle certainly wants us to pay heed, warning October 14 via TheAtlantic.com that this is a "sleeper" appeal that "threatens the separation of church and state." In her view, the high court faces not just the perennial problem of public funding for religious campuses. She believes the justices could decide "religious freedom supersedes the public good" by aiding conservative Christian schools that, based on centuries of doctrine, discriminate against non-Christian and LGBTQ students and teachers.
Journalistic backgrounding: Thinly-populated Maine provides an unusual context for this story because the majority of its 260 school districts do not operate full K-12 systems and instead pay tuition for public or private schools that families choose for upper grades. Religiously-affiliated schools are included, but not if Maine deems them "sectarian."
Notably, the parents' plea for tuition is backed by major institutions of the Catholic Church, the Southern Baptist Convention and other evangelical Protestants, the Church of God in Christ (the nation's largest African-American denomination), Latter-day Saints (formerly called "Mormons") and Orthodox Judaism, alongside the 63-campus Council of Islamic Schools. A reporter's question: Has such a religious coalition ever formed in any prior Supreme Court case?
Of further interest, the case engages a major religious-liberty theorist, Michael W. McConnell, director of Stanford University's Constitutional Law Center and former federal judge on the 10th Circuit Court of Appeals. He wrote that circuit's 2008 opinion in Colorado Christian University v Weaver (.pdf here), which tossed out a law that barred "pervasively sectarian" colleges from a state scholarship program.
In Carson, McConnell filed a personal brief September 8 that hands the Supreme Court a history lesson (.pdf here) on religious freedom as conceived when the Constitution's First Amendment was framed. He has explored this ground since a significant Harvard Law Review article in 1989.
In Espinoza v. Montana, the Supreme Court last year (.pdf here) ruled against a provision in that state's tax-credit plan for donations to a scholarship fund that refused aid for religiously affiliated schools. With Carson, McConnell deals with technicalities but also contends that under the First Amendment government cannot decide "what kind of religious use is too religious" or favor one religious outlook over another.
Maine refused tuition for the conservative, Bible-based Bangor Christian School and the Temple Academy in Waterville, and yet approved the Cardigan Mountain School in New Hampshire, which holds "non-sectarian" weekly chapel services and teaches "universal moral and spiritual values." To McConnell, Maine is obviously choosing sides in its support of competing religious philosophies.
Cardigan involves a you-can't-make-it-up angle. One of its 2017 graduates is the son of Chief Justice John Roberts. Another alumni dad of interest is Cardigan's board chairman David Gregory, the newsman and author of "How's Your Faith?" (2015), which depicts his interfaith upbringing and Jewish adulthood married to a Christian wife.
Contacts for journalists:
For Wehle: publicist Christine Stutz at 410-837-5648 or cell 410-961-6467. Maine's funding restriction is also championed by Rachel Laser at Americans United for Separation of Church and State, 202-466-3234 or media@au.org.
For McConnell: communications@law.stanford.edu or 650-724-4666. Others siding with the parents' appeal include prominent church-and-state scholar Douglas Laycock of the University of Virginia Law School at 512-656-1789 or dlaycock@law.virginia.edu, and Kimberlee Colby of the Christian Legal Society at 703-894-12087 or kcolby@clsnet.org.
One additional note. Schools are a hot political issue just now, so writers shouldn't miss a remarkable [paywalled] article in last weekend's Wall Street Journal by Philip Hamburger, a First Amendment specialist at Columbia Law School. He says dissenting parents face the "unbearable" situation of public schools that provide their children free educations, but with "political bias, hostility toward religion, and now even sexual and racial indoctrination." He finds this "profoundly unconstitutional." Reactions? Hamburger contacts: hamburger@law.columbia.edu or 212-854-6001.
FIRST IMAGE: Illustration posted with a Friendly Atheist blog post opposing public funding for religious schools.