The Supreme Court just made sure religious institutions won’t be left out of government funding


(JTA) — On Tuesday, the Supreme Court issued a landmark decision prohibiting government from excluding religion and religious institutions from government funding programs. 

This decision in Carson v. Makin follows on the heels of two other high court decisions in the last five years emphasizing that such exclusions constitute religious discrimination prohibited under the First Amendment. But what makes this decision important is its rejection of the so-called “status-use” distinction: government may not discriminate based on the mere religious status of an institution, but could discriminate if funds would be used for a religious purpose. That distinction had left the door open for government to prevent funding, available to other private institutions, from flowing to religious institutions — and in particular religious schools. Yesterday’s opinion closes that door.

At stake in Carson was Maine’s tuition assistance program. Over half the school districts in rural Maine do not have their own secondary schools. Maine solved this problem by allowing parents in those districts to select an approved private school for their children. In turn, the state would pay tuition to the parents’ chosen private school on the student’s behalf. However, Maine’s program expressly excluded “sectarian” schools from the tuition assistance program, even if they satisfied all other criteria for being an approved school.

In the 1970s and early 1980s, the Supreme Court’s doctrine would have deemed it unconstitutional to include religious schools in such a program. At that time, the Court viewed nearly all funding of religion and religious institutions as violations of the separation of church and state. But at the turn of the millennium, the Supreme Court’s views shifted. Instead of viewing separation of church and state as requiring a general prohibition on the funding of religion, the Court’s decision emphasized that the doctrine simply required neutrality. That prohibited funding designed specifically for religious institutions, but allowed government to fund religious institutions alongside other comparable private institutions.

This shift, however, exposed the discrimination question at stake in yesterday’s decision. If government is now allowed to include religious institutions in funding programs on equal terms with other comparable private institutions, what happens when it refuses to do so? Is that sort of refusal the kind of religious discrimination that the First Amendment prohibits?

In recent years, the Court has tried to walk a fine line in answering this question. In 2017, in Trinity Lutheran v. Comer, the Court’s majority opinion, authored by Chief Justice John Roberts, held that when government makes funding generally available, it cannot exclude institutions based on their religious status. In that case, Missouri rejected a church-run school from an environmental grant to resurface a playground. The Court ruled that the state had violated the First Amendment by excluding an institution “because of what it is — a church.” By contrast, the Court implied that government could exclude religious institutions from programs in which the funds would be used for specifically religious purposes. Resurfacing a playground is one thing; rebuilding a church sanctuary quite another.

Maine deployed this distinction in defending its tuition assistance program. In its view, the religious schools would presumably use the funds — that is, at least in part — to teach religion. Excluding religious schools from the program was thus constitutional.

In a 6-3 decision, the Supreme Court held that excluding religion and religious institutions from generally available government funding programs — whether it is based on religious status or religious use — violates the First Amendment. In the majority opinion, written by Roberts, the Court held that Maine “pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.” And importantly, the Court argued, it would be a mistake to read past cases as suggesting “that use-based discrimination is any less offensive to the Free Exercise Clause.”

Describing the precedents in this way is a bit of a stretch: The Court’s prior decisions had certainly implied that government could exclude religious institutions from funding programs on the basis of religious use. But there is good reason to think that the distinction was a mistake from the get-go. After all, it is all-too-easy for government to play semantics: When they exclude a religious school, is it because of its status as a religious school or because the funds will be used for religious purposes? Those permeable categories open the door for government to rebrand discrimination as needed to avoid constitutional obstacles.

What will be the likely impact of the decision? By its terms, it applies to cases where government is providing funding to private institutions for secular reasons and doing so on neutral terms. Notwithstanding concerns expressed by Justice Stephen Breyer, it does not allow government to simply fund religious institutions. And it does not allow government to fund religion unless it is part of a broad funding program available to all comparable institutions — religious and non-religious alike.

But that doesn’t mean its impact will be narrow both with respect to existing funding programs and new funding initiatives. To see the likely impact on existing funding programs, consider a 2018 decision issued by the New Jersey Supreme Court. New Jersey had announced a historic preservation grant program and awarded funds to, among other institutions, some churches that had historic value. The New Jersey Supreme Court concluded, however, that doing so violated the state’s rule against funding religious institutions. In the court’s view, these churches could be excluded because some of the funding would be used for a religious purpose — for example, to repair church sanctuaries.

Going forward, this sort of analysis is no longer good law. As long as the funding program advances a secular purpose — protecting historic buildings — the fact that some of the funds will incidentally be used for religious purposes will not authorize religious discrimination.

When it comes to new initiatives, yesterday’s ruling provides a strong incentive for religious communities to work alongside other groups to create new funding programs that advance important public policies. With all forms of religious exclusions now constitutionally prohibited, religious communities can rest assured new funding programs will not provide for the general public while excluding them.

Not surprisingly, given these bolstered constitutional protections, the Orthodox Unionconsistent advocates for Jewish day school funding — has already expressed its commitment to “proactively pressing for policymakers . . .  to ensure that any state and local education funding programs are fully available and accessible to nonpublic schools and their families as the Supreme Court has clearly mandated.” 

However, maybe the most important feature of yesterday’s decision isn’t the impact on funding. Yes, the door is now open not just for including religion in a host of funding programs, including historic preservation grants, environmental grants, security grants, and, maybe most importantly, school funding programs.

But the decision also speaks to core constitutional principles of neutrality and equality. It states unequivocally that religious citizens need not worry that the price of their religious commitments will be exclusion from funding programs geared towards solving secular policy interests that impact everyone. In this way, the decision protects not only the funding prospects of religious communities, but it protects the underlying principles that ensure the equal citizenship of all — religious or not.

All told, when it comes to both the principles and pragmatics of funding, yesterday’s decision ensures that religious institutions will no longer be left behind.

is the Brenden Mann Foundation Chair in Law and Religion and Co-Director of the Nootbaar Institute for Law and Religion at Pepperdine Caruso School of Law; Visiting Professor and Oscar M. Ruebhausen Distinguished Fellow at Yale Law School; Senior Legal Advisor to the Orthodox Union’s Teach Coalition; and Senior Fellow at the Shalom Hartman Institute.

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