Nathan Lewin
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Maine law discriminates against private schools for religious minorities

Why would Biden's Justice Department aggressively oppose the fight for religious liberty - unless it's simply out of spite for Trump?
A classroom with empty chairs and desks. (Unsplash)
A classroom with empty chairs and desks. (Unsplash)

The federal government usually stays out of cases in which private parties claim that states or local governments are violating their constitutional rights. Yet Donald Trump’s Department of Justice actively supported Catholics, Jews, and other religious minorities who are fighting for equal treatment in funding their children’s education. The Biden administration has totally reversed field and is not just standing on the sidelines. Regrettably, it has gone beyond the neutral stance taken under President Obama. Biden’s Justice Department is aggressively opposing the fight for religious liberty.

On December 8, the US Supreme Court will hear arguments in a case brought by Christian parents who live in Maine and enroll their children in private schools that provide religious instruction (Carson v. Makin, No. 20-1088). Under Maine law, the students’ tuitions would be paid by the state if the schools were “nonsectarian.” The parents claimed in a federal lawsuit that disqualifying “sectarian” schools and religiously observant parents from governmentally funded tuition assistance violates the First Amendment’s protection of the free exercise of religion.

This challenge had been made twice before in a Maine federal court. Then-governing Supreme Court precedent enabled the federal trial and appellate courts in Maine to reject the parents’ constitutional argument. But recent Supreme Court decisions, particularly the 7-to-2 decision in Trinity Lutheran Church v. Comer (2017), held that the “religious character” of an institution, even a church, may not constitutionally disqualify it from receiving benefits available to comparable non-religious entities.

The Carson lawsuit was begun by the parents against the State of Maine in August 2018. In June 2019, then-president Trump’s Department of Justice entered the case uninvited with a 20-page “statement of interest” supporting the parents’ contention that under the now-prevailing Supreme Court precedent, First Amendment “free exercise of religion” rights are violated by distinguishing between sectarian and nonsectarian schools. The Justice Department said that the court “should apply Trinity Lutheran and hold that [the Maine law] violates the Free Exercise Clause.” The trial court nonetheless ruled against the parents.

They appealed to the Court of Appeals for the First Circuit, which sits in Boston, and asked that the First Circuit’s earlier decisions be reconsidered in light of the Trinity Lutheran decision. President Trump’s Department of Justice chimed in again with a friend-of-the-court brief in the appellate court in October 2019. It once more supported the parents. The brief said: “The constitutional violation in this case is especially egregious because it involves the education of children. The right of a parent to determine the role of religion in his child’s education is one of the most important elements of religious liberty.”

The court of appeals stood by its earlier precedents and rejected the constitutional challenge. The parents took their claim to the Supreme Court. On the final court day before it adjourned for the summer, the Court agreed to hear and decide the Carson case.

Thirty-three friend-of-the-court briefs were filed in the Supreme Court supporting the parents. The parents’ allies include the Southern Christian Leadership Conference, 21 states (three with Democratic governors), 11 Republican senators, former court of appeals judge and First Amendment authority Michael W. McConnell, the Becket Fund for Religious Liberty, many national Orthodox Jewish groups, and the Mormon church. 

At this stage, the Justice Department was silent, no longer supporting the parents’ free-exercise-of-religion claim. Justices Ginsburg and Sotomayor had dissented in the Trinity Lutheran case, so it was not surprising that the federal government in a Democratic administration would not aggressively promote that decision and would take a neutral stance.

Maine’s responsive brief was filed on October 22. In the following 7-day period, when the Supreme Court rules permit friend-of-the-court briefs, 11 taking Maine’s side were filed. They included the National School Boards Association, Freedom From Religion Foundation, Americans United for Separation of Church and State, American Atheists, Inc., and The National Education Association. The last friend-of-the-court brief endorsing Maine’s position filed late on Friday was by Solicitor General Elizabeth Prelogar, who took office on as the Biden administration’s principal Supreme Court advocate on October 28. Accompanying the brief was a request to permit the Solicitor General to present 15 minutes of oral argument supporting Maine, because “the United States has a substantial interest in the constitutional principles governing this case.”

The brief acknowledged that “the United States had filed an amicus brief supporting petitioners” in the court of appeals. It continues, “After the change in Administration . . . the United States reexamined this case” and discovered — in a remarkable epiphany — that the Christian schools were disqualified not because of their “religious identity,” but because of “the religious nature of the instruction that the state funds would be used to provide.” The schools’ religious instruction was hardly a secret in the lower courts. The briefs recited it explicitly. Nonetheless, the United States’ brief in the Supreme Court invoked it to vindicate the government’s total reversal from active support of the parents to energetic opposition, punctuated with a request to argue the revised position orally. 

On November 8, the Supreme Court granted the solicitor general’s request for oral argument on Maine’s side. The principal deputy solicitor general is now scheduled to argue against the parents’ religious liberty claim.

President Obama’s Justice Department was silent when the Trinity Lutheran case was briefed in the Supreme Court in April and July 2016. The federal government left that litigation to the State of Missouri, notwithstanding its recently discovered “substantial interest in the constitutional principles.”

Is there a reason for the Justice Department’s total about-face in this critical religious-liberty battle, other than to prove that Biden is not Trump?

About the Author
Nathan Lewin is a Washington, D.C., attorney who specializes in religious freedom cases before the US Supreme Court.
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