Courthouse Steps Oral Argument Webinar: Carson v. Makin

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Guy DeSanctis:  Welcome to The Federalist Society’s webinar call. Today, December 8th, we discuss Courthouse Steps Oral Argument Carson v. Makin. My name is Guy DeSanctis, and I’m Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today’s call. Today, we are fortunate to have with us Michael Bindas, Senior Attorney, Institute for Justice, and Daniel Mach, Director ACLU Program on Freedom of Religion and Belief. Throughout the panel, if you have any questions, please submit them through the question-and-answer feature or the chat so that our speakers will have access to them for when we get to that portion of the webinar. With that, thank you for being with us today. Michael, the floor is yours.

 

Michael Bindas:  Thank you, Guy. So this case involves a tuition assistance program for families in certain parts of Maine. So, in Maine, if a school district does not operate a public school of its own—public high school—it’s got to do one of two things. It can either contract with a school to educate the resident students of that town, or it can provide a tuition assistance benefit—basically, tuition that parents can use to send their child to the public or private school of their choice. The school can be, again, public or private. It can be inside or outside of Maine. It can even be outside the country. And the state has paid for kids to attend schools as far away as California. I mean, all of the kind of elite prep schools that you know about in the New England area, certainly those schools have all participated. But kids have gone to school under this program with funds from the program in Michigan, Colorado, California, all over the country.

 

There’s one type of school, however, that is excluded, and that is any religious school, or as the state calls it, any sectarian school. We challenged this exclusion back in 2018 on behalf of several families who were entitled to the tuition benefit. They lived in towns that did not operate public high schools, and the towns offered the tuition assistance benefit. And they desired to use the benefit at a religious school. We challenged the exclusion—the sectarian exclusion—under the Free Exercise Clause as well as under the Establishment and Equal Protection Clauses. While our case was kind of making its way through the courts to the federal courts, so too was the Espinoza case, which many of you probably know was decided last year by the U.S. Supreme Court. That involved a similar exclusion in a school choice program out of Montana.

 

So we have these two cases that are kind of going on a parallel track. We lose the main case in the district court. We go up to the First Circuit. And the First Circuit hears arguments in the case two weeks before the United States Supreme Court hears argument in Espinoza. And after the argument, the First Circuit understandably held that the case did not issue an opinion presumably because it was waiting to hear how the Espinoza decision came out. So Espinoza, in turn, was argued. In June of 2020, Espinoza comes out, and the Supreme Court holds Montana’s exclusion of religious options from its school choice program unconstitutional under the Free Exercise Clause. The Court pointed out or put a lot of emphasis on the fact that schools were prohibited from participating in this program or, more accurately, parents were prohibited from selecting schools under the program simply because the schools were religious. That is, simply because the school had a religious affiliation or identity, it was excluded.

 

And the Court said that it didn't have to address the situation of what might happen if a school was excluded, not solely because it was religious, but because of what the Court said the religious use to which a student might put their benefit—so the use of obtaining a religious education or religious instruction. The Court noted that some of its members had questioned whether there’s really any meaningful distinction to be made between a school that is religious as opposed to a school that does religious things, but it said, “We acknowledge the point, but we need not resolve it here. We need not address it here.” So basically, that’s where things stood after Espinoza. It was absolutely clear that a state could not provide a student aid program like this and deny a student’s choice or a parent’s choice of where to use the benefit solely because a school was religious.

 

But there was an open question about whether a state could nevertheless single out and exclude a school because of the religious things it does, like teach religion. And so, after Espinoza came down in June 2020, we expected a fairly quick decision from the First Circuit. We wound up waiting four months -- oh, a little over four months for that decision. And in late October of 2020, the First Circuit handed down a decision that acknowledged Espinoza, that said, “We understand Maine cannot deny a parent’s choice of school simply because it is religious, but we don’t think that’s what Maine is doing. Instead, Maine is excluding schools based on the religious use to which a student’s benefit would be put there.” In other words, state’s not discriminating because schools are religious but because they do religious stuff, like teach religion.

 

And while the Supreme Court in Espinoza had said, “We’re not going to wade into whether there is a meaningful distinction, a constitutionally significant distinction or not, the First Circuit said, “Yes, this is a constitutionally significant decision.” So much so that, rather than apply the strict scrutiny that would apply to a religious status-based exclusion, the First Circuit applied mere rational basis review, the most deferential level of scrutiny, and upheld means exclusion of so-called sectarian options. We petitioned for cert, arguing, in effect, that this notion of a status-use distinction specifically as a basis for eluding strict scrutiny—which is traditionally applied to religious spatially discriminatory statutes against religion—that relying on a status use distinction, as its come to be known, to elude strict scrutiny or really any meaningful constitutional scrutiny just ran head on into the Supreme Court’s Free Exercise jurisprudence, could not be reconciled with the Free Exercise jurisprudence or with the text of the Free Exercise Clause for that matter.

 

And the Supreme Court agreed to hear the case. The case was argued this morning. I think it went far longer than anyone expected. It clocked in right at two hours. It was a very, very active bench. I’ll wrap up here. One thing I’ll mention, though, is that one of the reasons the argument went quite long is because the United States submitted an amicus brief in the case on Maine’s side. This was interesting because the United States, in the lower court proceedings, had been on our side and had submitted an amicus brief on our side in the First Circuit. Presumably with the change in administration, the United States took the opposite position and submitted an amicus brief in support of Maine’s position. And so, the argument time on that side of the case was divided between the deputy attorney general of Maine and one of the deputy solicitor generals of the United States. So it was an interesting argument, very lively, very active bench, and I’m sure we’ll be talking about all of it here in just a few. But Dan, if you want to jump in here.

 

Daniel Mach:  Thanks. And I told you before, but nice job today.

 

Michael Bindas:  Thank you.

 

Daniel Mach:  I’m impressed that you’re still here and not sleeping at this point. I think you did a great job teeing up just now the issues in the case. There are a few other ones floating around as well. There was a standing issue that, again, I assume we’re going to talk more about. We questioned whether these plaintiffs have standing to bring this challenge. That is something that there was some questioning about, and we can talk more about that in a moment.

 

I think I’ll just, to take a step or two back, put things in historical perspective about the jurisprudence in this area. And this is yet another step in what I think is steady movement in one direction by the Supreme Court. In the past, the Supreme Court used to guard against government-funded religion and religious activities. And in several of the more recent cases, the Court has now said that it not only permits that but actually requires taxpayers to fund to right religious education. We’ll see what they say in this case, of course. But this is a movement, I think, that we’ve seen both on the Establishment Clause side and on the Free Exercise side, where the Court is increasingly less receptive to Establishment Clause arguments of any sort, frankly, and much more receptive to most Free Exercise arguments. So this comes in that historical context as well, so I just wanted to throw that on the table. I’m sure we can talk more about that as well.

 

Michael Bindas:  And I see we’ve got a few questions from Robert. And he leads off with a standing question. So, yeah. The main question -- and it was not a big part of their brief. In fact, it was the very last couple of pages of their opening brief where they raised the argument that we -- our clients, I should say, lacked standing because it wasn’t absolutely clear that their preferred schools would ultimately participate in the program if they were allowed to. So they’re not allowed to. In fact, the state stipulated that it would be futile for them to even ask whether they could because they are religious. But the idea was that because there are some other provisions of state law that might require them to adjust their hiring or admissions practices, that that might dissuade them from participating, and because our clients couldn't say with certainty that they would get the benefit or be able to use it at these particular schools, that that somehow deprived our clients of standing.

 

And the First Circuit had dealt with that argument below because Maine had made the same argument below. And the First Circuit said, “No. Look, these folks have standing because the constitutional injury here is the denial to even seek out a religious education under this program. And there’s no question that that injury is attributable to the exclusion of sectarian options and that invalidating that exclusion would remedy or redress that injury completely.” So I think the First Circuit got that right. I don’t think the First Circuit got much of anything else right in the decision below. But as Dan mentioned, that was one of the topics that came up. It came up -- it was actually the first question out of the gate. And it’ll be interesting to see what the Court says on that. I mean, I’d be happy to go into some more detail on standing analysis and case law, why we think this is a non-issue, but I think I might bore some folks if I did that. But Dan, I don’t know if you want to weigh in here.

 

Daniel Mach:  Yeah, no, I thought it was interesting. You got a lot of questions early on on that. I think Justices Thomas, Kagan, Barrett, and I’m forgetting if others weighed in. They seem very interested in --.

 

Michael Bindas:  Justice Sotomayor as well. Yeah.

 

Daniel Mach:  Sorry? Oh, Sotomayor. Yeah. They seemed very interested early on, as often happens with standing arguments, right? It’s a threshold question. But then, it seemed like they moved fairly quickly after that -- to the merits. I think they returned to it briefly later, but I saw interest early on from the Court and less interest later. I don't know if that was your take as well.

 

Michael Bindas:  And I see Robert has a couple more questions. But maybe -- well, let’s jump down to John, and then we’ll come back up to Robert. John says, “It’s not clear why the case was cert worthy so soon after the Montana case without percolation and splits.” Okay. So this was something we squarely addressed in our cert petition because I think a lot of folks were probably predicting we would not get cert in the case because it did come closely on the heels of Espinoza.

 

But the fact of the matter is this issue has been percolating for a quarter-century. It started with a Sixth Circuit opinion in a case called Hartmann v. Stone, which involved a federal -- Department of the Army daycare program that allowed -- provided a benefit for daycare providers serving military families but specifically prohibited any religious instruction or prayer in the program. And so, the Court had to deal with whether or not an exclusion that turned on instruction was or was not constitutional. And the Sixth Circuit held that it was not.

 

And then fast forward several years, there was another case out of the Tenth Circuit that was authored by then Judge Michael McConnell—who is, I think, everyone recognizes one of the preeminent religion law scholars in the country—that involved a case, a higher-ed scholarship program in Colorado, where Colorado allowed religious schools to participate, or allowed kids to choose religious schools, but not if they were pervasively sectarian. And it defined pervasively sectarian. It had kind of a checklist of things it would look for. And it basically looked at things like the instruction and the activities to determine whether it was merely sectarian or instead pervasively sectarian. And writing for the Tenth Circuit, Judge McConnell held that that was an unconstitutional exclusion.

 

Now, in that same time frame, the Vermont Supreme Court came to the other conclusion in a case called Chittenden -- I can’t remember the entire name of the case -- but it involved a tuition assistance program that operates very, very similarly to Maine’s. And the Vermont Supreme Court concluded that the Vermont Constitution—a provision called the Compelled Support Clause in the Vermont Constitution—prohibited this tuition benefit from being used at schools that provided religious instruction. They could be religious schools, but they could not provide religious instruction. And so, you did have an existing circuit split already. And then the First Circuit’s decision obviously compounds the split.

 

So there was a split out there. It had been percolating. Now, why not let it percolate a bit more after Espinoza? And I think the answer there is Espinoza never reached this question and, in fact, said, “We will not reach this question,” because according to the Court—and I don’t necessarily agree with this—but in the Court’s view, the exclusion in that case turned solely on religious status, and so the Court said, “Look. We don’t need to reach this issue.” So it would be weird to let something percolate in light of a decision that said it was not even touching that issue. And so I think that’s why it might have been surprising that this was accepted so quickly on the heels of Espinoza, but I think it was for good reason—that Espinoza just didn't bear on the issue directly.

 

Daniel Mach:  And I think one of the interesting questions in the case is, what limits can states put on its funding—on its taxpayers’ support—for private activity? What limits are available to the state? What limits are still required by the Establishment Clause? Those Establishment Clause questions were not in the case. You did bring Establishment Clause claims of another sort. But looming in the background is the notion that, at some point, the Establishment Clause does forbid something, the state from doing something. And the question here is, what is that? Or what is looming in the background?

 

One of the things about this restriction in Maine is that it was initially imposed as sort of interpretation of existing Establishment Clause law about what states could or couldn't do. That has changed. The Supreme Court has said that private vouchers are constitutional even if the money goes to religious schools ultimately. So there was a lot of discussion of that. But I think that the underlying assumption here is it would be permissible for the state to allow this funding. But the central question here is, is it required? If it’s permissible by the Establishment Clause, is it required by the Free Exercise Clause? And one of the -- you got in a number of copies about the play in the joints.

 

And the Supreme Court has recognized that there is what it’s called the play in the joints between what the Establishment Clause permits and what the Free Exercise Clause requires. In one of the earlier funding cases, Locke v. Davey, the Supreme Court reiterated that there is such a play and that it’s an important thing for governments to have some leeway, that they can provide this additional support for Free Exercise, but they need not do it, at least in some circumstances. And so, one of the questions here in this case is, is this one of those situations where they must, or is it just they may?

 

Michael Bindas:  Yeah. And when that came up today, I think as I mentioned in the argument, the quintessential play in the joints is whether or not to have this type of program because we know the Establishment Clause allows it, that the Court decided that in Zelman—that you can have a school choice program that includes religious options. That’s perfectly permissible under the Establishment Clause. But the Free Exercise Clause does not require a state to have a program like this. In fact, Espinoza pretty much said so. There were two sentences back-to-back in that decision, where Chief Justice Roberts, writing for the Court, said, “A state need not subsidize private education.” So this is not about whether there is a constitutional right to a state-subsidized religious education. No one is making the argument that the state has to pay for religious education.

 

But Chief Justice Roberts went on to say, after saying a state need not subsidize private education -- but if it does, it can’t exclude a school simply because it’s religious. And so, that’s really what our argument here is, is this is not about whether there’s a constitutional right to a state-funded religious education. We don’t need a constitutional right after all. There’s a statutory right to the tuition benefit to use at the private school of a parent’s choice. So Maine has seen fit to provide a statuary entitlement. And the question is—the real question is—can the state condition use of that benefit on a parent not selecting a religious school when we know that parents have a constitutional right to select religious schools for their kids? So I just wanted to mention that because I think there’s been some -- I’m not attributing this to Dan at all, but there’s been some discussion about the case, suggesting that this is all about trying to get a constitutional right to a state-supported religious education, and that is not what the case is about.

 

Daniel Mach:  Which is not to say that we will never see that claim being made some point in the future depending on how this case comes out.

 

Michael Bindas:  We will not be making that claim.

 

Daniel Mach:  So this gets back to the question, the status-use distinction and does-the-line-make-sense. The states and the federal government were taking the position that the line does make sense for a variety of reasons. Not surprisingly, I agree. So just to lay that out very briefly—and maybe we can have a chat about that—the argument is that when you’re talking about a state’s subsidy, it is different than a state prohibition. So the state can’t prohibit religious belief, nor can it prohibit religious action. But when you’re talking about subsidies, the calculus is different. Or at least in some other areas of constitutional law, the Court has made very clear that the government need not fund the exercise of a constitutional right, that it has the ability, as it did, say, in Rust v. Sullivan, to say, “We have a program. This is going to be a family planning program, and we are only going to fund certain types of expression, and we are going to prohibit expression about abortion,” in that case.

 

And that was challenged on free speech grounds. And the Court said very clearly just because that is a constitutional right doesn’t mean the state has to fund it. The state can put together its own programs, and it can define the terms of those programs. And so, it’s okay and permissible for the state of Maine in this case to say, “We are only going to fund public education,” or what they deem the equivalent of a public education. And because this is not an across-the-board voucher program, right? This is a program specifically designed to assist that small fraction of families across the state that lives in one of these areas that doesn’t have their own public schools—their own public high schools.

 

Michael Bindas:  We got a real easy factual question here from Joe. “So is Maine’s subsidy always the same amount? Suppose a student wants to attend an expensive private school, sectarian or not, does the subsidy increase because the expenses will be --" so, no. The amount is capped at a certain level that I won’t bore you with how that amount is determined. But I think this year, it’s right about $12,000. So it’s tuition up to that amount. If you go to -- and students have gone to schools like Miss Porter’s under this program that charge $66,000 this year, I think, the parents are on the hook for the difference between the $66,000 and the $12,000. But for the many schools that charge less—and many religious schools -- I would say most religious schools do charge less than that—they’re not pocketing the extra or anything like that. This is for tuition, and it’s capped a certain amount. So got that one.

 

And then, Timothy – and Robert, I don’t want you to think we’re not going to circle back to your questions, but there are some others here. So Timothy asks, “If the Court knew in 2020 that the matter was coming and that it had been previously raised for 30 years, why would the Court fail to address the matter in Espinoza?” Well, the Court addressed it. It didn't resolve it. But really, I think -- I don’t want to speculate on why, but I think a lot of folks have talked about the chief’s incrementalist approach to -- not just to these issues, but to constitutional issues generally. And I suspect that in Espinoza, he wanted to resolve only what the Court needed to resolve to resolve the case. And again, he did note in that decision that some members of the Court—presumably Justice Gorsuch and Justice Thomas who concurred in that case and questioned the supposed status-use distinction—he said, “We acknowledge that some of our colleagues have questioned whether there is a meaningful distinction to be made, but we need not resolve it here.” So I think it was just nothing more than a reflection of his kind of incrementalist approach to constitutional jurisprudence. I don't know. Dan, do you feel differently?

 

Daniel Mach:  No. I agree with that. I think I, like many other Court watchers, interpreted the earlier reluctance by the Court in the previous two cases to address this issue to be -- I attribute it to the chief.

 

Michael Bindas:  John asks, “There were a lot of LGBT questions by the justices. How does that even matter? Would a religious school that favors LGBT rights be eligible while others would not? How so?” So to answer the second question first, a school that is fully welcoming of LGBTQ students, employees, that does not consider sexual orientation in hiring, admissions, or for any other reason is just as excluded from this program if they teach their message of diversity and tolerance through the lens of faith. When we were doing discovery in this case, the main commissioner of education testified that the way they determine whether a school is sectarian is by looking at the activities in the curriculum and assessing whether the material’s presented in a way that either promotes a belief system or presents the material through the lens of faith. And so, if a religious school, again embracing students and employees of all stripes, taught that their religion requires that, they would nevertheless be excluded from this program.

 

So one thing I wanted to make clear is that the exclusion we’re talking about turns on religion and religion alone. Now, on the standing issue, the reason Maine said that -- “Hey, we don’t know for sure whether these schools ultimately will participate or not because there’s this Maine Human Rights Act, and it has provisions that bear on hiring and admissions in private schools, and therefore, no one can say with certainty whether these schools will participate” -- that’s where the issue came up. It came up with respect to standing, but it doesn’t bear at all on the substantive constitutional question of whether a state can exclude a school simply because it provides instruction—and I’m quoting again—through the lens of faith, as the commissioner testified.

 

And then, I think we’re back up to -- Robert’s got a couple more questions here. So I think I know what two of them are. One of them I’m not quite sure, but what to think about Justice Thomas’s remark that this is not a subsidy. Dan, I’ll be interested in your take here. But basically, what I was getting from that was that this isn’t simply a situation where the government is providing a benefit to be nice, I guess, for lack of a better word. Maine, like every state, has a compulsory education law. Maine requires students to attend school. And so, that, I’m guessing, bears in Justice Thomas’s mind on how to look at this. It’s not simply a matter of here’s a little something for you. It’s government, by the force of law, is compelling your child to attend a school. And we’re going to make money available for some kids to do that at public schools or private schools in Maine or outside of Maine, but not if it’s a Jewish Day School or an Islamic School or a Catholic Parishes School. And I think that’s what he was getting at—that this feels different because of that compulsory education requirement that’s looming in the background. But Dan, what do you think on that?

 

Daniel Mach:  Yeah. I mean, I agree with your interpretation of what he was probably thinking. I’m not sure how much others will join him in that view. He kind of brushed past part of the response, which is they don’t have to send their kids to school at all. They can homeschool. He said, “Well, that’s still a requirement.” It’s true. It is still a requirement. I’m not sure how far that’s going to get with the others.

 

Michael Bindas:  And then, let’s see, two more. Let me see if anyone else has jumped in here. Yeah. And then, Robert, we will circle back again, but let’s get a couple others here. “Was the United States asked to explain its change of position? If not, in your opinion, what is the explanation?” I mean, I think this is just simply a change in administration. At the end of the day, the folks in the S.C. shop are unbelievable, committed public servants, representing the United States. And when the political apparatus changes, they’ve got to represent the United States under that changed position. And so, I don’t attribute it to anything other than that. It’s maybe a little bit unusual, in that certainly different administrations reverse positions on cases in the kind of grand scheme of things. This was maybe a little unusual in that it happened in the same case. But again, I don’t attribute it to anything other than the change in administration. But Dan, what do you think about that?

 

Daniel Mach:  Yeah. And I assume -- this is not the first time Court has seen that happen. So I think they figure this is basically par for the course.

 

Michael Bindas:  Yeah. All right, Molly. “What do you make of all the questions about how government employees make judgment calls about which schools qualify? Does the subjective nature of the program approval matter?” So Dan mentioned earlier that there’s the Establishment Clause that was at issue in some of the earlier school choice cases, but then we were raising a different Establishment Clause claim here. And this—what Molly’s asking about—really goes to that.

 

So we argue that, certainly, the exclusion of religious options is a problem, from our point of view, under the Free Exercise Clause, but the way the sectarian exclusion operates presents a separate problem under the Establishment Clause, which prohibits government certainly from favoring but also from disfavoring religion and also prohibits government from discriminating among religions. And if there’s one thing that has been a consistent theme in the Court’s jurisprudence is this notion of government making intrusive inquiries to parse out religiosity or pick and choose winners, losers, or something based on that type of intrusive inquiry and judgments.

 

And so, the way the sectarian exclusion operates is the state looks at the school, looks at the curriculum and activities specifically to determine whether or not the material is presented through the lens of faith or in a way that promotes the belief system that the school is affiliated with. And that, I don’t think whether something is taught through the lens of faith is an objective inquiry. I think it requires judgment calls. And I think it requires folks in the Maine Department of Education to look at the curriculum and activities of schools and make determinations about what and why they’re teaching.

 

And an example that I used in the case today in an argument is presumably, you could have a philosophy class that teaches Aquinas. That might be okay. But if you teach that Aquinas was right, then all of a sudden, it’s through the lens of faith, and that’s not okay, presumably. And when you have government making decisions like that, that raises an Establishment Clause concern, and there’s actually record evidence of that stuff happening in the case.

 

There was a school that applied several years back—the Cardigan Mountain School—that has a chaplain, that has a chapel, that teaches in its words “universal spiritual values” at the chapel assemblies. And as you can imagine, that triggered some questions in the Maine Department of Education. And after four months of back and forth, the Maine Department of Education approved them, presumably because the school convinced the department that what they were teaching at the chapel and in class was sufficiently universal spiritual truths as opposed to sectarian spiritual truths.

 

And I think the department was right to approve Cardigan Mountain. It should be allowed to participate, notwithstanding the fact that it has a chapel and a chaplain, but the state has no business excluding other schools whose chapel service the state determines to be too religious. And again, when you have regulators making these kinds of intrusive inquires and ultimately judgments about who can and cannot get a public benefit, that seems like an Establishment Clause problem. I’m sure Dan feels differently on this one, though.

 

Daniel Mach:  Yeah. I do. I think there can come a point at which the state’s inquiry can become too intrusive and try on the Establishment Clause. But here, it doesn’t seem like that’s -- or even close to the line. And in particular, most of these schools, including the two, the only two, that are actually at issue in this case self-certified that they are religious or “sectarian” under the statutory definitions. All the state had to do was just take them at their word. There was no intrusive inquiry. There was no getting into the weeds. And like I said, I think there can come a point where that becomes too much for Establishment Clause purposes. But the way the law is now, there are these types of determinations that are made all the time in many areas of the law that relate to religious liberty, where certain questions have to be asked and answered by courts and by governments about whether what’s going on here is religious enough to cross the line, whatever the line may be. So it’s not as if this is the only time that this type of question is raised. These inquiries are a regular part of this broad area of the law.

 

Michael Bindas:  Joe wants to know, “Has any school characterized as sectarian challenged that determination, or has a family disappointed by the exclusion of its chosen school done so? If so, what was the result?” So there is an example in the record on this question. And this goes to what Dan was saying about self-identification as being sectarian. The last example I mentioned, Cardigan Mountain School, self-identified as nonsectarian. It has the chapel, compulsory chapel service, chaplain, etc., but it self-identified as nonsectarian. It took four months, though, for the state to agree and allow them in. So self-identification, in that case, there were still some questions.

 

Now, another school self-identified as sectarian -- as nonsectarian, I’m sorry—the Kent School in Connecticut. And it was nevertheless excluded because of its episcopal tradition. Interestingly, the Kent School is the school I think I referred to earlier, which does not discriminate on sexual orientation or gender identity among many other categories. Nevertheless, it was excluded because it was deemed sectarian. It has a chapel. No one is required to go to chapel services. I don’t know what the calculus was in the department of education’s mind there, but that was a situation where self-identification was not the end of the story and where the school was ultimately excluded, notwithstanding the fact that it said it was not sectarian.

 

Let’s see. Steven, “Isn’t the exclusion here properly viewed as leveraging the conditional funding and therefore different from Rust v. Sullivan? That is, if the school is sectarian but provides comparable secular education in math and science, the parents nevertheless lose the entire voucher.” Yeah. So there’s a couple things going on in that question. You’re right. If you teach a single religion class, you’re out, period, notwithstanding the fact that you teach every secular subject that the state might require, that you satisfy the compulsory education laws for the state of Maine. If you teach a religion class, you’re out. Likewise, if you only teach secular classes but you do so through the lens of faith, whatever that may mean, you’re also out. So it is a sweeping, sweeping exclusion.

 

Now, as for Rust and how is it different than Rust, I think it’s different from Rust in a few respects. Rust was a government speech case where government was funding one message from one viewpoint to the exclusion of all others. That’s not what’s going on with this tuition program. Government is providing a financial benefit to private individuals to exercise private choice to use at the school of their choice, schools that promote a number of different messages from a diversity of viewpoints but singling out only one. And so, I don’t think anyone could claim that that’s somehow government speech. Maine claims it’s a government speech program. That’s very strange. But even if it is government speech, government speech has to comport with the Establishment Clause, and the Establishment Clause requires neutrality towards religion. So I think even if you look at this as involving, like Rust did, government speech, it still doesn’t cut it because the Establishment Clause requires neutrality in government speech. That wasn’t an issue in Rust because Rust was not a religion-based case.

 

And then the last thing I would say on that is, in Rust, factually, it was different because the doctors in Rust -- so Rust was, as Dan mentioned earlier, a program that provided grants for pre-conceptional counseling services by doctors. It excluded abortion counseling. The Court upheld the exclusion, and in doing so, it made much of the fact that doctors could do both. They could both get the grants, and they could engage in abortion counseling. They just couldn't use the grants to do it. They had to segregate these activities.

 

That’s not an option for families in Maine. They can’t get the tuition benefit to go to a secular private high school and then also have their child attend another 8-hour day of high school at their preferred religious school on their own dime, nor can they say get the tuition benefit for their child to attend a secular high school when they’re 14 through 18 and then have them go to another four years of high school when they’re 18 to 22 on their own dime at a religious school. It’s one or the other. And that choice was never forced in Rust. So factually, putting aside the government speech idea, factually this is a very different case from Rust because families in Maine have to choose one or the other. They either get the benefit, or they get their free exercise rights, but they don’t get both. Again, I’m sure Dan feels differently on this one, though.

 

Daniel Mach:  Yeah. I mean, I guess a couple responses. First, on the question of is this government speech, it may not be classic government speech, but I think that the state is arguing that is at least analogous in the sense that the state is putting forward a program. It has an important policy decision that it has made, and that is to promote public schools. And it’s a policy decision that’s backed up by its state constitution as well. And in their view, this is a public education program. We will either provide classic public schools, or we will provide the functional equivalent thereof. And they say, “And when we’re defining that program, just as in Rust, we’re defining it in a way that means classic public education in the sense of not promoting or disfavoring any religious doctrine.”

 

The second thing -- you mentioned that, if it were government speech, the Establishment Clause requires neutrality, and this violates neutrality. The Establishment Clause -- I guess it all depends on what you mean by neutrality. The Establishment Clause requires neutrality in the sense of the government being forbidden from taking doctrinal positions, promoting one faith over others, saying this is the one true religion. That religion is bad. They got it wrong. They interpreted the Bible wrong. The government can’t do any of that. That is the sense in which neutrality is required in the Establishment Clause. But by the same token, the Establishment Clause also forbids the government from promoting religion, let’s say, in a public school.

 

And so, by the definition that you seem to be embracing of neutrality, that would be non-neutral as well. In other words, the government can promote civic values under our current understanding of the Establishment Clause in a public school. They can do that, but they cannot say, “This is the best faith; you must follow this faith.” So perhaps you think that’s non-neutral as well, but that is the sense in which the Establishment Clause required neutrality.

 

Michael Bindas:  Yeah. I mean, I do think there’s case law -- and you’re absolutely right. Government can’t take position on the doctrinal pluses or minuses of particular religions. But there’s certainly Establishment Clause case law out there that says government cannot establish a religion of secularism either and that it cannot -- just as it cannot favor religion, nor can it disfavor religion, whether among religions or religion as a whole. And it’s hard for me to look at this exclusion which allows you to attend the private school of your choice anywhere in the country except if that school teaches religion. It’s hard for me to look at that as anything other than hostility toward religion.

 

I understand that Maine says the education you get at Miss Porter’s or Avon Old Farms is the equivalent of a Maine public education. I find that -- a lot of words I could find to describe that argument, but I mean, I just think that’s also belied by how the program works, right? Obviously, public schools can’t charge $66,000 a year in tuition. The participating private schools don’t have to follow the public school curriculum. They can discriminate on bases such as sex that public schools can’t. So this is not -- again, I understand you disagree, and Maine certainly disagrees. I do not see this as providing a public education or the equivalent of a public education. And if Maine’s argument is that the only thing -- I mean, well, not if Maine’s argument -- Maine’s argument is, is it’s the one thing that a public education is, is an education devoid of religion. That is the defining characteristic of a public education.

 

And that’s nothing more than doing what the Court said in Obergefell you can’t do. Right? You can’t define a right or a benefit so as to justify your withholding of that right or benefit from the excluded class. And the Court said that in many other cases—Alexander v. Choate. At the end of the day, from our perspective, that’s what’s going on here. Maine is defining the right precisely along religious/nonreligious grounds so as to justify its withholding of the benefit from those families who would choose religion.

 

Daniel Mach:  Yeah. I mean, I just want to push back on one point. There’s not strong case law that suggests that a religion -- that there is such a thing as religion of secularism that violates the Constitution. It is definitely unconstitutional for the state or for a public school to say religion is bad. That is wrong and unconstitutional. But there have been many failed claims in public schools claiming that, by the absence of our religion, you are establishing a religion of secularism. And all of those claims are routinely given the back of the hand. So I just want --.

 

Michael Bindas:  Right. Right. The public schools -- we say point-blank in our opening brief at footnote nine, public schools must be secular. They are subject to the Establishment Clause. The speech that goes on in them is government speech, and they must remain secular. We don’t dispute that. The problem is when you open it up to private schools and you pick who’s in and who’s out among private schools that we see the Establishment Clause problem. So I want to be clear about that as well. We’re not suggesting that. And nothing the Court here is going to do is going to open the way to religious public schools or anything of that nature.

 

I know Dan’s got about -- we got about 10 more minutes here. So let me see. I think I’ve lost track of some of the questions. My official -- actually, I’m skipping over a few here. “I wonder if there is” -- this is from H.G. “I wonder if there’s any current concern of danger of local political preeminence, domination of particular religious denominations arising from state aid, or payments to religiously based institutions. I take it that the Establishment Clause was intended to avoid national domination of a particular denomination. But is there a corresponding danger at the local state level?” I’m not sure I quite understand this -- Dan, you may well. I’m still trying to digest here, so maybe if you want to start out with this one because I’m not quite following the question. And I feel bad because I want to answer it, but…

 

Daniel Mach:  Yeah. I’m not quite sure either, frankly. I do know that there’s a concern—and maybe the question is getting at the following—that even when you open up a funding program or even some version of a public forum for private speech, the Court has given a nod to a concern that even though that might presumptively be constitutional, that if it turns out that there is the domination of a particular forum by any given religious group, that that might change the calculus. So in other words, we open up this public building, and any group can come. The Court has said on a number of occasions that that allows religious groups as well as nonreligious groups to participate equally because it’s clear that it’s not attributable to the government. It’s attributable to whatever private groups are reserving the space. There has been a nod to the idea in some of these cases that, if it turns out down the road that there’s a domination of that forum, that it effectively becomes the religious site for one particular faith over and over again for whatever reason, then there might be a different Establishment Clause answer to the threshold question of, “Is this a problem?”

 

Michael Bindas:  Yeah.

 

Daniel Mach:  I’m not sure if what’s the question is getting at.

 

Michael Bindas:  Yeah, maybe. And the Court -- in the school-choice context specifically, the Court did touch on this in Zelman. In Zelman, you had a voucher program that children could use to attend religious or nonreligious schools. And I think it was 68 percent of the schools participating were religious and 96 percent of students participating chose religious schools. And the Court held that that was not of any constitutional moment because at the end of the day, it was still parental choice determining where any student would attend. And that parental choice really severs the link between the public funds and the ultimate destination of where the money goes to. It’s that private choice that severs the link between church and state for lack of a better way to put it.

 

And the Court also -- if I remember correctly, I think there was a line in there where the Court said that it was reluctant to draw any kind of line that would turn on why, in any particular city in America, at any particular time in history, there were more or less religious schools than nonreligious schools. Obviously, this is something that’s changing all the time, and it would be odd to say that a program would be unconstitutional in a city that has lots of religious private schools but constitutional in a city that has an equal number of religious and nonreligious private schools. So I think the Court has touched on these. But again, I’m assuming that this is what H.G. is asking about. So if we haven’t answered your question, I apologize.

 

Let’s see. Okay. “So if a school is excluded because it teaches secular subjects through a religious lens, why isn’t that a viewpoint discrimination problem under the First Amendment free speech clause?” You make a good point, Jack, and I don’t disagree with you. We’re not pressing a free speech claim per se. That said, if you look -- I know the United States and Maine have urged the Court to analogize to speech cases, specifically the government speech cases like Rust. If you look at the speech cases in situations involving generally available public benefits, like this one is, I think the speech jurisprudence helps us a great deal.

 

And I’m thinking about cases like Rosenberger, Widmar, Lamb’s Chapel, Good News Club, where government made a benefit available, whether it was student activity funds, public facilities made available for a variety of uses to all speakers except religious messages or religious viewpoints. So in Widmar, it was religious worship that was excluded. And in Good News Club, it was religious instruction—a group that wanted to use a public facility for religious instruction, and the government excluded them. And in each of those cases, the Court held that that was an impermissible abridgment of free speech rights because you were allowing messages and viewpoints from virtually any other perspective and singling out only the religious perspective. And the Court did hold the exclusions in each one of those cases unconstitutional. So I think if Maine and the United States want to analogize to free speech jurisprudence, I think that’s the better analogy.

 

Daniel Mach:  Yeah. And I think it depends on how you’re characterizing the program and whether or not -- if you went down the free speech road, whether this counts as some version of a public forum or a limited public forum or a non-public forum, whatever it may be. If it’s like that, then those restrictions, like restrictions on viewpoint discrimination, kick in. If you’re viewing this as Maine does—as a program of public education—then it’s not going to be analogous to forum cases.

 

Michael Bindas:  All right. I think we’ve got time for one more here. And I’m going to go -- let’s see. The last one that came in was from Andrew. “Can you speak a bit to the structure of the program so that the parents make the choice, severs the state interest in the Establishment Clause issue? To go a bit further, why don’t we hear the same arguments with things like Pell Grants or other government tuition aid being used at religious schools?” So early on in the conversation, Dan kind of laid out the earlier -- one of the earlier big school choice cases, Zelman, where the Court held that school choice programs that include religious options are permissible under the Establishment Clause so long as they’re neutral toward religion, meaning religious and nonreligious schools can participate, and so long as they operate on the private choice of parents, meaning it’s parents rather than government deciding where their child will go to school.

 

The Court’s reasoning in that case and in Witters, Zobrist, a number of these other what are known as true private choice programs, the reasoning is that that private decision, that private choice, severs the link between government funds and religion. So the government isn’t funding religion. The government’s funding the individual and allowing the individual to decide where to use that aid. So that’s where that idea of choice severing comes into play first and foremost.

 

Now, I think there’s a good question, though. So it comes into play in making clear that this is permissible to include religious options under the Establishment Clause. But if private choice breaks the link, as the Court has said, between government funds and religious instruction, how can there be a government interest in prohibiting government funds from being used for religious instruction if there’s no link between the two? If the link has been broken, it seems to me it’s been broken for both the Establishment Clause and the Free Exercise Clause, or for the government’s interest. But I don’t know that that’s an argument we’ve made. It’ll be interesting to see if the Court takes that on. But I hope that answered your question, Andrew. And Dan, if you want to weigh in on that one, too?

 

Daniel Mach:  Yeah. I mean, I guess this all gets back to the question of the distinction between what the government may do and what the government must do, and is there still anything remaining in the play in the joints? Is there any area where, even though the government may provide taxpayer funding for religious activities, it can choose not to? And that’s one of the key questions in this case.

 

Michael Bindas:  Well, I know Dan has to wrap up. He’s got a hard 5:00 stop. But thank you all for your wonderful questions, and we’ll hand it back over to the good folks at the FedSoc now to see if you’ve got anything else to add.

 

Guy DeSanctis:  Yes. Thank you both. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.