Religion Clause Case – The Sky is Not Falling on Separation of Church and State

June 22, 2022

by Marc J. Randazza


The Supreme Court issued a decision this week in Carson v. Makin, and the commentary from the Left seems to be that the sky is falling and that it will usher in the Handmaid’s Tale. My friend Elie Mystal believes that this means that the wall between church and state is falling. (here) He is not alone.

The American Federation of Teachers had this to say:

“Remarkably and stunningly, even for this right-wing majority, this decision completely vitiates the establishment clause of the U.S. Constitution and, with it, the separation of church and state, a core constitutional principle that has bound this country together since its founding. Today the court has decided that taxpayers must pay for the private religious education of others. (source)

The predictions of disaster are, I think, overblown. I think the American Federation of Teachers is quite simply lying to you.

The Case

The Maine Constitution requires that all children are entitled to a free public education.  However, fewer than half of Maine’s school districts operate a public secondary school.  Therefore, if a child lives in a district where there isn’t one, then the government pays tuition assistance for them to attend private schools – as long as they meet certain educational requirements.  

But, in 1981 Maine passed a law that excluded any religious-oriented school from the program.  This was because the Maine attorney general believed that failing to do so would violate the Establishment Clause.  In all fairness to the Maine attorney general, the law may have been a bit unclear on this.  But, in 2002, the Supreme Court held  that a benefit program where private citizens directed government aid to religious schools as a “genuine and independent private choice” was not contrary to the Establishment Clause.  See Zelman v. Simmons-Harris, 536 U. S. 639 (2002)   Then, Maine considered repealing the limitation, but it did not pass. 

The Court explained that the Free Exercise protects against “indirect coercion or penalties on the free exercise of religion, not just outright prohibitions.” Lyng v. Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 450 (1988). The government violates the Free Exercise Clause if it excludes religious observers from otherwise available public benefits.  “A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause” (Op. at 10) 

As the court explained, the government must be neutral in matter of religion.  But, in this program, there was “nothing neutral” about it – the State of Maine would pay for private school tuition, as long as the school was not religious.  “That is discrimination against religion.”  (Op. at 10)

The decision relies upon two prior cases, which fit squarely within its facts.  In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Court considered a Missouri program that offered grants to qualifying nonprofit organizations that installed cushioning playground surfaces, but denied such grants to any applicant that was owned or controlled by a church, sect, or other religious entity.  There, the Court held that the Free Exercise Clause did not permit Missouri to “expressly discriminate against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.  The crux of Trinity Lutheran,and the Court’s jurisprudence in this area since, was that the religious organization was required to renounce its religion in order to receive public funding.[1]

In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2261 (2020), the Court held that a provision of the Montana Constitution barring government aid to any school “controlled in whole or in part by any church sect, or denomination” violated the Free Exercise Clause by prohibiting families from using otherwise available scholarship funds at religious schools.  Following the policy in Trinity Lutheran, Chief Justice Roberts writing for the majority stated that “A State need not subsidize private education.  But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

So what’s the big deal?

If the government gives you a benefit, it can’t limit that benefit in a way that would offend the First Amendment. Remember in Matal v. Tam, the trademark office once banned registration of trademarks that were “disparaging.” The government said that this is because they were just offering a government benefit, not engaging in censorship. The doctrine of unconstitutional conditions required striking down that restriction. This is similar – the government can’t say that you can attend any school you want on the state dime, as long as they do not teach you religion in addition to the state requirements.

This does not mean that the state can directly fund religious schools. This means that if the state gives you a choice, that choice can’t be limited to non-religious schools only.

And despite this perspective, which is also dishonest, this does not mean that this applies to Christian schools only.

Mr. Ali, and those fawning over his statement seem to believe that the issue here is Christianity vs. other religions. However, he would be precisely wrong. If you can’t discriminate against religion itself, you can’t discriminate between religions.

Now remember the American Federation of teachers’ statement at the top? Their statement continues with “Now more than ever, we must prioritize our public schools, not marginalize them; we must invest in them, not divert money away to private programs.” (emphasis added)

So what are they really worried about?


[1] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2024 (2017)

The State in this case expressly requires Trinity Lutheran to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified. Our cases make clear that such a condition imposes a penalty on the free exercise of religion that must be subjected to the “most rigorous” scrutiny.  Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545 (1993)

A Jesuit Named Francis

March 18, 2013

By J. DeVoy

The new pope is something of a mind-bender for products of Catholic education.  Explaining why takes some time, though.

Jorge Bergoglio is a member of the Jesuit order, commonly known as the “Society of Jesus,” which came into existence in the late 1500’s.  (The term “Society of Jesus” previously referred to a military order established by Pope Pius II in 1450 to fight the Turks and spread Catholicism, but was eventually de-militarized and reappropriated to the Jesuits.)  Founded by St. Ignatius Loyola, the Jesuits generally are the academic wing of Catholicism and run many of its prominent universities, including Georgetown and the numerous Loyola Universities.  While being academics, Jesuits are also something of the flower-children of Catholicism; despite the order’s original purpose being to counteract Martin Luther’s reformation, the Jesuits have by and large lurched to the liberal end of Catholicism.

Predating the Jesuits, there are the Franciscans.  Recognized by the Vatican as an official order in 1209, the Franciscans, individually known as friars, are a religious order dedicated to living out the principles of St. Francis of Assisi.  There are actually three orders of Franciscans, making things fairly complicated, so for the purposes of this discussion we’ll address only the first order – the Order of Friars Minor (“OFM”).* (The Second Order is the Poor Claires, and the Third Order, Penitents, have their roots in the sixth century.)  Unlike the Jesuits, whose members are required to be priests, one can become a friar even without entering priesthood.   While not all Franciscan friars are priests, all are bound by the vows of poverty, chastity and obedience, with poverty being the most distinctive aspect of its order.  Indeed, it was Saint Francis himself who gave up a life of relative material comfort to isolate himself in the woods dedicated to a life of prayer.  Today, we call these people “crazy,” or simply “poor.”

Upon assuming the mantle of the pontificate, Bergoglio took the name of Francis I.  There was an outside shot of Cardinal Sean O’Malley – an actual Franciscan – of becoming the pope.  But now there is a Jesuit acting as pope under the name of the founder of the Franciscan Order, which predates the Jesuit order by more than three centuries.  If this were America, and if this were not the Catholic church, it would be time to sue.

Interestingly enough, this would be an intra-faith dispute that wouldn’t immediately get bounced out of an American court on First Amendment grounds.  Courts refuse to hear intra-faith disputes, or cases between members of the clergy, that concern matters of religious doctrine; to do so would thwart what remains of the barrier between church and state.  A good summary can be found here.  This dispute, however, has nothing to do with faith, and is all about trademark rights.

Someone from a competing source of religious religious order adopting the name of your preexisting religious order’s namesake, and using it as his public name, seems like a non-frivolous trademark and unfair competition claim.  As competing Catholic orders, the Jesuits and Franciscans certainly are in the same market.  In a commercial context, this is analogous to Steve Jobs, before he was kicked out of Apple and while Dell was killing the consumer PC market, renaming himself “Michael Dell” and furthering his persona under that name.  To the uninformed Catholic, Bergoglio has blurred the line between Franciscans and Jesuits.  To the extent normal Catholics knew the two orders even existed, Bergoglio arguably is diverting the goodwill earned by Franciscans toward the Jesuits, to which he belongs and is now the public face of.  Even to someone vaguely “up” on Catholicism, Bergoglio’s decision is just confusing.  From a cynic’s view it looks like a thumb in the eye to Franciscans, using Francis’ name to become more popular based on the work of his order while retaining the intellectual respect the Jesuits have already acquired.

The Franciscans would have a hard time getting in the door to court, although they operate worldwide and have some trademark rights in virtually every jurisdiction that would recognize such a dispute.  The main question would be what Order(s) are the proper plaintiffs to assert rights over Francis’ rights as a source of religious services.  That whole vow of poverty isn’t going to help them retain particularly sophisticated trademark counsel either.  Given Saint Francis’ history and stature within the Catholic church, it seems that Bergoglio would have a good nominal fair use defense as well.  Given Bergoglio’s dislike for ceremony, I don’t doubt he intended his use of Francis’ name to be a tribute to the Saint rather than an attempt to outflank the Franciscans.  But sometimes good intentions aren’t enough.

* The OFM distinction is even further subdivided into three sub-groups, so to speak.  The slightly differing priorities of these groups are externally reflected by different color robes and differing numbers of knots on the cords they wear.  But that’s a topic for another post at a different blog.

H/T: Friar Michael Lasky, who drilled this stuff into my head so thoroughly in high school that I had to do only the most minimal research for this post.  He is currently in Bogota, Colombia, and presumably there to undo the work of Roosh V.

What’s More Christian Than a 30 Foot Cross?

November 9, 2011

By Sean McGilvray

The 9th Circuit recently denied a rehearing for the case in which they ruled that the giant cross that sits on federally owned land atop Mount Soledad in La Jolla, California is unconstitutional. In January of this year, the 9th Circuit took the entirely reasonable position that when the federally-maintained Mt. Soledad Veterans Memorial tops itself with a 25 foot tall representation of the most fundamental symbol of Christianity, they are sending a message of wholesale endorsement of the Christian faith in violation of the Establishment Clause.

The Mount Soledad Cross has a long history of controversy, but the latest round of litigation kicked off after the state of California got sick of arguing about it and transferred the land on which the monument stands to the federal government in 2006. The ruling in January spelled it out:

“… after examining the entirety of the Mount Soledad Memorial in context—having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and the dominance of the Cross—we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates the Establishment Clause.”

Last month, the court declined to review or reverse their earlier decision, which places this case in a prime position to move further up the chain and appear before the U.S. Supreme Court. Not all of the Circuit Judges agreed with the decision however, and Judge Carlos Bea wrote a lengthy dissent attacking the earlier decision and disingenuously suggests that a giant cross has nothing to do with Christianity.

Bea attacks the reliance on the three part test used in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, government action has to meet the following three criteria to avoid violating the Establishment Clause:

  1. It  must have a secular legislative purpose.
  2. It  must not have the primary effect of either advancing or inhibiting religion.
  3. It  must not result in an excessive government entanglement with religion.

Despite the always colorful potshots that conservative justices like Scalia have taken over the years at this standard (“like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” 508 U.S. 384, 397 (1992)) the Lemon Test is good law.

Under this standard, the government action of acquiring a hunk of land with a giant cinderblock cross and maintaining the monument as-is seems like a cut and dry example of advancing the Christian religion and getting excessively entangled with it. Judge Bea pushes for an application of an exception to the Lemon Test from Van Orden v. Perry, 545 U.S. 677 (2005). In certain borderline cases where the religious iconography in question is part of a larger secular context, the court has to engage in a fact-intensive assessment of a host of factors, including the monument’s purpose, the perception of that purpose by viewers, and the monument’s history. The standard came from the Texas Ten Commandments sculpture case.

Although the Court in Van Orden explicitly eschewed the notion of simple formula in favor of an intensive fact-based analysis, Judge Bea helpfully condenses this analysis to look at the use and context of the Mount Soledad Cross.

Of course the earlier 9th Circuit decision considered all these factors in addition to their Lemon Test analysis and found that the Soledad Cross was inherently Christian in nature. Judge Bea argues that the fact that Cross is currently part of a veteran’s memorial and is festooned with plaques and American flags somehow negates the religious undertones as though crosses are not associated with memorials precisely because of the religious connotations of the afterlife.

Bea also argues that the history and context of the cross are secular, or at least as secular as a representation of the deity worshipped by the majority of Americans can be. By focusing narrowly on Mount Soledad Cross only as part of a memorial for the veterans since 2006 (when the U.S. government acquired the property) Judge Bea willfully ignores the broader history of the Cross which was a focus for annual Easter services for over forty years. He is a big fan of history when it comes to pointing out that the monument stood unchallenged until 1989 and that this long run without opposition somehow drains the cross of its Christian meaning.

It remains to be seen if the Supreme Court will grant cert for this case and if they do, whether the current lineup will be inclined to see the case the same way as Judge Bea but for now this particular victory in the war to keep church and state on opposite ends of the block has been reaffirmed.

Sometimes things are not as they seem…. or are they?

April 15, 2010

Guess what this is. Click the image to see the full picture.

heh heh… heh.