Unanimity is achieved at the Supreme Court for really only two reasons

When the US Supreme Court last week ruled that the state of Maine violated the First Amendment to the Constitution when it refused to make public funding available for students to attend religious schools, it continued a trend that’s now nearly two decades in the making.

Maine is sparsely populated, with less than a million and a half residents spread across a state that includes a county that’s bigger than Connecticut and Rhode Island combined. As a result, many school districts don’t have enough kids to support a middle or high school. The state of Maine, however, required those rural school districts to arrange for their young residents’ educations, either by sending them to other public or private schools that the district designates, or paying tuition to the school each student selects, as long as the school is nonsectarian.

The opinion by Chief Justice John Roberts in the case, Carson v. Makin, held that although state and local governments are not required to subsidize private schools at all, if they choose to do so they cannot exclude religious schools. The First Amendment’s religion clause contains two parts: one prohibits governmental “establishment” of religion, while the other proscribes governmental action that serves to inhibit the “free exercise” of religion.

Chief Justice Roberts addressed both of these principles, writing that a neutral benefit program in which public funds flow to religious organizations through the choices of private benefit recipients does not offend the Establishment Clause.

“At the same time,” he wrote, “a State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Like other decisions of the Court in the area of governmental funding for religious schools, however, this one does not likely have major near-term significance for the Orthodox Jewish community in regard to tuition assistance. It has been, after all, two decades since the Supreme Court ruled that state vouchers may be used to fund religious school tuition, yet state-funded tuition assistance remains out of reach for the approximately 80 percent of the country’s Orthodox Jews who live in solidly Democratic-led states like New York, New Jersey, California, Maryland, and Illinois.

Since these blue states are highly unlikely to fund any private education at all, a ruling that religious schools cannot be excluded when a state funds other private schools will be of no avail. Nor does there seem to be much political will on the Republican side of the aisle to provide tuition assistance on the federal level. When the GOP had control of the White House and both houses of Congress in 2017 and 2018, no private-school funding bill was even suggested until the end of 2018, just after the Democrats took control of the House of Representatives.

Well-known attorney and communal advocate Avi Schick observes, however, that last week’s decision may have an immediate impact in two areas where public funds are already being disbursed to religious institutions. New York City’s Universal Pre-K (UPK) program, which until now has chosen to fund only private school programs with no religious component, may now be required to allow religious schools with UPK programs to do so while maintaining their religious character and instruction. The court’s decision should also have an impact on private religious colleges that already receive government funding, allowing them to continue to receive taxpayer funds while still maintaining their religious character.

The Court’s 6–3 vote split along conservative/liberal lines (although a 5–4 holding would have been likely even before the Court’s recent change in composition, with Anthony Kennedy, who retired in 2018, as a reliable vote on First Amendment school funding issues). The Court’s three liberal justices seem stuck on shoring up an imaginary “wall of separation between church and state,” a relic of 20th-century constitutional jurisprudence that ought to be consigned once and for all to the Supreme Court dustbin.

And slowly, it is in fact being retired. As Ian Prasad Philbrick reported recently in the New York Times, a forthcoming Supreme Court Review study by Washington University law professor Lee Epstein and University of Chicago law professor Eric Posner shows that “since John Roberts became chief justice in 2005, the court has ruled in favor of religious organizations in orally argued cases 83 percent of the time. That is far more than any court in the past seven decades…”

But as I’ve noted here before, what’s even more encouraging is the observation of Professor Mark Rienzi, president of the Becket Fund for Religious Liberty, one of America’s leading legal advocates for the rights of religious individuals and institutions, that the Court’s recent religion-related cases have “harmonized around the principle that, despite all our honest and deep-seated disagreements about important questions, robust protection for religious dissenters is essential to our living together in a pluralistic society.” Rienzi adds that “while the justices do not always agree on each application of these principles to particular factual scenarios, they do seem largely in agreement on the principles themselves, which is good for both the court and the country.”

And indeed, last year’s 9–0 decision in Fulton v. City of Philadelphia, upholding a Catholic foster-care agency’s claim of religious discrimination by the city of Philadelphia bears Rienzi out. As Ethics and Public Policy Center senior fellow Roger Severino wrote about the decision in Fulton:

Unanimity is achieved at the Supreme Court for really only two reasons: The case is easy, or they want to send a message in controversial ones. Here, they are clearly sending a message [that] people with sincere faith-informed understandings of social issues that cut against the grain of secularist thought aren’t to be treated as bigots, and government needs to back off.

Ditto for the Court’s recent decision 9–0 ruling against the city of Boston for denying a group’s request to temporarily fly a Christian flag outside its city hall, although its reasoning was that this violated the First Amendment’s free speech clause.

With Ketanji Brown Jackson set to replace Stephen Breyer on the high bench for the Court’s new term in October, will she too be part of what Professor Rienzi describes as the Court’s promotion of “the foundational idea that religious freedom can help people in a diverse, pluralistic society live together in peace — even amid deep disagreements over fundamental issues”?

It’s anyone’s guess, of course. But over two decades ago, Ms. Jackson worked as an associate attorney in Nathan Lewin’s Washington, D.C. law firm, where she drafted on behalf of Lewin’s client, the Kiryas Joel (KJ) Board of Education, a petition for Supreme Court review of the New York Court of Appeals 1999 ruling that KJ’s special school district was unconstitutional. This resulted in a stay of the New York court’s decision, which enabled KJ’s special education school to continue operating. Lewin writes that two rulings she issued while she was a district judge “have garnered little notoriety, but they are, for America’s Jews, grounds for optimism.”

In one, a group called Z Street formed to counter the J Street organization, had its application for tax-exempt status delayed by the IRS under a policy requiring close review for organizations “connected with Israel.” Z Street sued in federal court claiming that this “special policy” was unconstitutional, and the case was assigned to Judge Jackson.

“The Obama Justice Department strenuously contested Z Street’s legal claim,” Lewin writes, “and it argued that the lawsuit should be dismissed. In May 2014, Judge Jackson ruled in a detailed opinion that Z Street’s lawsuit should continue.” Eventually, the case was settled, with the IRS apologizing to Z Street.

In a 2017 case, US Postal Service employee Howard Tyson sued his employer, claiming that his supervisor allowed other employees to play music while they worked but denied a promotion to Tyson because he played Christian gospel music over the supervisor’s objection to “religious music.” Mr. Lewin writes that “Judge Jackson refused to dismiss the case, saying that this was ‘a plausible claim for religious discrimination,’…. [which] demonstrated judicial receptivity for a somewhat tenuous claim of religious freedom.”

Although in several high-profile cases in the just-ended term, the votes split sharply along partisan lines, in the area of religious liberty, the Court is more cohesive and nuanced, with the justices, in Professor Rienzi’s words, seeming “to be weaving together a set of precedents that could nurture some long-term peace.” And that’s good news for the Jews.

(Originally featured in Mishpacha, Issue 917. Eytan Kobre may be contacted directly at kobre@mishpacha.com)