In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:
They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.
The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination. The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.
Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.
