Thread by @stevenmazie

At 10:00, the Supreme Court will be hearing a case that could poke another hole in the (already teetering) wall of separation between church and state: Carson v. Makin. You can listen in at this link. I'll be listening & tweeting.

supremecourt.gov

Thomas: do you have standing? These schools say they won't take state funding.

Michael Bindis, lawyer for plaintiffs: yes

Kagan: if there were only two religious schools and neither would accept the money, still there's standing?

B: stigmatic injury is still an injury, even if there is no chance of participating in the program

Bindis: the sectarian exclusion has been on the books for four decades

Barrett: would they go anywhere other than Temple Academy?

Bindis: they want a religious education...so probably

Kagan: are there other schools they actually would attend?

Bindis: I think maybe but I can't point to one

(This discussion involves whether the parents can even bring this lawsuit, since the schools they want state funds for do not accept state funds.)

Breyer brings up whether the schools bar LGBT teachers.

B: a religious employer can, in Maine, decide not to hire people on this basis

Breyer: there are 65 religions with all kinds of different views, and "there's a reason why this court's cases have said, 'we don't want to get into a situation where the state is going to pay for education at religious organizations'"

B: this was resolved in Zelman v. Simmons-Harris: the state is not funding schools, it's giving money to parents to pay tuition

Roberts, searching for a limiting principle: the state can still refuse to pay for explicitly religious services at churches, right?

B: oh yes

Sotomayor: you get a free public education, right? choice is send your student to a public school or pay to go to a religious school

B: there is no constl requirement to pay for religious school, yes

Soto: does the district have to contract with a religious school?

B: no, that school has to provide secular education

Soto: Maine says you can pick any school you want for a secular education, including all non-sectarian schools

B: no, in some places in Maine there's a benefit...

Kagan: this is an extremely cabined program. So is that really similar to Zelman "we love choice" program?

B: for more than a century, Maine did allow religious schools to participate. 1980 - state reverses course based on an erroneous reading of the Establishment Clause

Kagan: the use/status distinction applies in subsidy cases. the state ususally doesn't have to subsidize the exercise of a right. We protect free speech, that doesn't mean we have to pay for your speech. Why do states HAVE TO subsidize the exercise of a right?

B: no, it's conditioning the exercise of a state benefit on the denial of one's right to religious free exercise

Kagan: the state can define the nature of the program, as in Rust v. Sullivan. Maine doesn't want to define it so broadly to risk relgious favoritism or division.

Gorsuch: are you put to a choice? Maine says there's no choice you're put to, since you can send kids to after-school or weekend religious classes.

B: the discrim is not ok b/c you can go to a weekly bible study. That's insulting. Ignores the excluded activity.

Gorsuch: does this affect some religions differently from others?

B: yes. A state regulator sits in judgment as to whether the school is sufficiently non-religious. THAT is a big establishment clause problem.

Breyer: Est. Clause is there to prevent religious wars. France does what you want: pay for everything, secular and religous alike. America doesn't do that. We have too many religions and they'll get into too many arguments with each other if state money is involved.

B: we aren't asking for what France does. It's private choice of parents. Not payments to schools. It's attributable to choices of parents.

Breyer: but govt pays for it.

B: court said spectre of religious strife, etc. does not bear on constl analysis. A private choice as to where to use funds, like tithing part of your social security payment. That's fine!

Kagan: but there is play in the joints between free exercise and establishment: stuff that might be OK but isn't commanded by the free exercise clause.

(This is from Locke v. Davey.)

B: Maine's choice is whether to have a subsidy program. If it has one, must fund relig ed. too

Kagan: these schools are discriminatory. Why isn't it OK for Maine to say, we don't want to get involved in that?

B: Espinoza said there's no test on weighing benefit/exclusion vs. some general goal of avoiding religious conflict. So no play in the joints!

Roberts: how is this different from Locke v Davey?

B: the one thing in Locke that was barred - majoring in a devotional major to become clergy. Here, it's a wholesale exclusion of religion. Even one religious class is enough to bar the school.

Soto: "I have a great deal of difficulty here." You admit the school is important to the parents because they teach all subjects thru lens of the religion, right?

B: yep.

Soto: even science courses are limited in their reach, right? some theories aren't taught...

B: nothing in the record on that...and you have to teach the theory of evolution.

Soto: is it OK to tell schools they cannot bar students on the basis of sex, gender identity, sexual orientation etc.?

B: that's not this case, analytically different. Relig schools that welcome students of all stripes are barred from the program, too!

Gorsuch: the Kent School was religious but was rejected even though it said it was not a sectarian school and accepted Maine's human rights laws.

Kavanaugh: Locke v Davey is just about training of clergy being excluded, right?

B: yes.

Kav: you're not saying that merely funding public schools means that states have to fund religious schools, right?

B: right. Espinoza says that.

Barrett: if Maine paid money directly to the schools, then it could bar religious schools?

B: direct institutional aid is a much, much different case - state probably doesn't need to do that

Barrett: this is like a school choice program, then; you can take the money as far as a private school in California.

B: yes, not a penny goes directly to a school

Bindas is done; Christopher Taub, from the AG's office in Maine, begins. He's defending the exclusion of religoius schools.

Taub: Maine thinks that "public education should be religiously neutral". We want to promote diversity and acceptance, not religious indoctrination.

Thomas: can a parent decide not to send their kid to any school at all?

T: no

Thomas: so you require them to go to school but have no schools available in certain areas. So how is it a "subsidy" to pay for kids to attend private schools?

Thomas: it'd be different if parents weren't required to send their kids to school, as in the choice about attending college.

T: the benefit is a free public education, period.

Thomas: why a "benefit" if required?!

Alito: by public, you mean a secular education. You need a compelling interest to provide just a secular education.

T: one thing not occuring at Andover, etc.: inculcating kids with a particular religion.

Roberts: imagine religious school A, which doesn't teach religion but provides service to the community; and religion school B, which does teach a lot of scripture.

T: A is funded, B is not.

Roberts: that's discrimination based on doctrine, that's unconstitutional!

Taub: No, not based on doctrine but on curriculum. The schools at issue in this case have mandatory chapel services and religious infusion in the curriculum.

Roberts [kinda sneering]: you make a judgment as to how serious schools are about infusing classes with religion...

T: we do ask what the sectarian program looks like - if students are required to participate, that isn't funded

Roberts pressing hard on what counts as sectarian and how Maine determines what counts as sectarian. What about everything is secular except has "a view of the Crusades that other people may not share".

T: they might bring an as-applied challenge if they're denied funding.

Alito: what about a religious school that says everyone is worthy of respect and everyone is equal and we love charitable work and we don't have dogma, but students should keep those in mind. Would that school be disqualified?

T: that's very similar to a public school.

Alito: maybe, but close to unitarian universalism. So that would qualify, but other religious schools wouldn't? That's discrimination.

T: I can't say...

Alito: "you've got a problem about discrimination among religious groups"

T: unitarianism is a religion, so a school promoting it would not be eligible for the program.

Gorsuch: a private entity can provide a public education as long as it...

T:...doesn't instill religion

Gorsuch: doesn't this discriminate against minority religions? those that aren't watered down?

T: there's no school that instill religious beliefs that would be eligible for our program

Breyer: leaving aside my dissents, this really is the same as Zelman, isn't it? (school choice)

T: Zelman was about what a state is permitted to do, not what it is required to do. Zelman was about opting out of public school system; Maine's program is within that system

T: as with free speech, Maine can use its pocketbook to promote ideals that it chooses to promote (religious neutrality)

T: if a school teaches Marxism or Leninism or white supremacy, that may disqualify a school too.

[what is happening]

Alito: no religiously based school is ok, right?

T: it's about whether it instills religion.

Kagan: a white supremacist school would not be funded because it's outside the bounds of your program, right?

T: right.

ALITO GOES THERE: what about a school that "teaches critical race theory"??

Are you gonna fund that?

Kagan: you've been asked about odd cases, hard cases. What's the hardest case you've been confronted with?

T: we've had no real hard cases. A seminary school was ineligible. A chapel-based school applied and wasn't approved. And a third w chapel was approved cuz not religious.

Gorsuch now asking about the Cardigan School, where Roberts's children went and where he delivered the commencement address four years ago. cardigan.org/about/videos

(Cardigan was approved, because its chapel was used only as an assembly hall, not for required services.)

Kav: by excluding someone who's religious from a state program (you can go to Andover but not a Christian school), "doesn't that create the possibility of strife"?

T: more strife (1) trying to explain to taxpayers that they're funding discrimination, or (2) telling parents in some districts that they have a subsidy for religious schools but parents in other districts (where there are public high schools) do not.

Barrett: there are belief systems in all schools, including public schools. How would you know if a particular school teaches bigotry or not?

Taub done, Malcolm Stewart from the (federal) SG's office rises to join the defense of Maine's program. He has 15 minutes.

Stewart: Maine has a legit anti-establishment interest and religious instruction in these schools is not severable from their instructional program.

Thomas begins by wondering where the anti-establishment interest "comes from", as if he's never read the opening words of the First Amendment.

(I have to sign off for now. Thanks for tuning in.)

*Bindas

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