Oklahoma Attorney General's Opinion Says Ban on Sectarian Charter Schools Is Unconstitutional

 In Attorney General Opinion 2022-7, (Dec. 1, 2022), Oklahoma Attorney General John M. O'Connor concluded that the ban in Oklahoma law on publicly funded charter schools being sectarian or religiously affiliated is unconstitutional. He said in part:

You ask what effect, if any, the Trinity Lutheran, Espinoza, and Carson decisions have on the validity of the non-sectarian restrictions found in Section 3-136(A)(2) of the Oklahoma Charter School Act. That passage states as follows:

A charter school shall be nonsectarian in its programs, admission policies, employment practices, and all other operations. A sponsor may not authorize a charter school or program that is affiliated with a nonpublic sectarian school or religious institution....

We believe, based on the First Amendment and the Trinity Lutheran, Espinoza, and Carson line of decisions, that the U.S. Supreme Court would likely hold these restrictions unconstitutional....

It is important to emphasize, however, that to the extent that neutral and generally applicable limitations may be found elsewhere in the Act, those limitations can likely be applied to religious charter schools, so long as they are truly neutral and applied equally to all charter schools alike.... The constitutional problem is singling out religion, not necessarily the provisions found elsewhere regulating various aspects of charter schools.

The Oklahoman reports on the Attorney General's Opinion.

Supreme Court Says Maine Cannot Exclude Sectarian Schools From Its Tuition Reimbursement Program

In Carson v. Makin, (Sup. Ct., June 21, 2022), in a 6-3 decision, the U.S. Supreme Court held that Maine's program that pays tuition (up to a statutory limit) to out-of-district public or private high schools for students whose districts do not operate a high school, but which requires participating schools to be nonsectarian, violates the Free Exercise Clause. The majority opinion by Chief Justice Roberts says in part:

The State pays tuition for certain students at private schools— so long as the schools are not religious. That is discrimination against religion. 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....

Maine’s “nonsectarian” requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.

Justice Breyer, joined by Justice Kagan and for the most part by Justice Sotomayor, filed a dissenting opinion which says in part:

Nothing in our Free Exercise Clause cases compels Maine to give tuition aid to private schools that will use the funds to provide a religious education.... [T]his Court’s decisions in Trinity Lutheran and Espinoza prohibit States from denying aid to religious schools solely because of a school’s religious status—that is, its affiliation with or control by a religious organization.... But we have never said that the Free Exercise Clause prohibits States from withholding funds because of the religious use to which the money will be put....

Maine’s decision not to fund such schools falls squarely within the play in the joints between those two Clauses. Maine has promised all children within the State the right to receive a free public education. In fulfilling this promise, Maine endeavors to provide children the religiously neutral education required in public school systems.... The Religion Clauses give Maine the ability, and flexibility, to make this choice. 

Justice Sotomayor also filed a dissenting opinion which says in part:

This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.... 

If a State cannot offer subsidies to its citizens without being required to fund religious exercise, any State that values its historic antiestablishment interests more than this Court does will have to curtail the support it offers to its citizens.

CNN reports on the decision.

Recent Articles of Interest

 From SSRN:

• Saud M. Alholiby & Zakaria A. Almulhim, From the Lack to the Requirement: The Public Consultation Reform in Saudi Arabia,  (UCLA Journal of Islamic and Near Eastern Law, Forthcoming).
• Mark Movsesian, Law, Religion, and the COVID Crisis, (Journal of Law and Religion, Forthcoming).
• Scott W. Gaylord, Roe as Potemkin Village: Fallacies, Facades, and Stare Decisis (September 17, 2021).
• Jean-Francois Achille, 'Unnecessary Cruelty': Freedom of Religion and the Humane Slaughter Act (May 15, 2021).
• David R. Stras, What My Grandparents’ Experiences in the Holocaust Taught Me About the First Amendment, (NYU Journal of Law & Liberty, Forthcoming).
• Moorthy S. Muthuswamy, Does Sharia Act as both a Mediator and Moderator in Salafi Radicalism?, (August 29, 2021).

New Journal

• The Inaugural Issue of the Australian Journal of Law & Religion is now being developed.

From SmartCILP:

• Richard S. Myers, The Significance of Trinity Lutheran, 17 Ave Maria Law Review 1-17 (2019).
• John C. Eastman, "Religiously Scrupulous"': Freedom of Conscience at the Founding, 17 Ave Maria Law Review 18-34 (2019).
• Massimo Campanini & Mohamed 'Arafa, Islam and Democracy: Appreciating the Nuance and Complexity of Legal Systems with a Basis in Religion, 26 Barry Law Review 1-30 (2020).
• Volume 5, Buddhism Law & Society (2019-20).

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

 In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus.  At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

Four years ago, the Supreme Court reminded states that it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order.” Trinity Lutheran Church of Columbia, Inc. v. Comer.... Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar[] religious schools from public benefits solely because of the religious character of the schools.” Espinoza v. Mont. Dep't of Revenue.... The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses”....

Judge Menashi filed a concurring opinion.

Synod May Take Over Property of Defunct Church

In Central/Southern Illinois Synod of the Evangelical Lutheran Church in America v. Trinity Lutheran Church of Kankakee, (IL App., March 2, 2021), an Illinois state appellate court held that the parent Synod was entitled to take over the property of a local church whose membership had diminished to the point that it was no longer holding worship services or exercising governance functions. Both the constitution of the Synod and of the congregation provided that the Synod should take over the congregation's property in such cases. However one of the remaining church members changed the locks and prevented the Synod from entering. The court said in part:

Pursuant to both constitutions, the Synod Council determined that Trinity Lutheran was no longer viable and, thus, ceased to exist. Such a decision was within the province of the Synod Council and is an ecclesiastical matter involving church doctrine, polity, and practice. Therefore, we will defer to such a finding.

1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:

Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....

Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, Why School Prayer Matters, (San Diego Legal Studies Paper No. 20-447 (2020)).
• Robin S. Maril, The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting, (Northwestern Journal of Law and Social Policy, Vol. 16, No. 1, 2020).
• Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, (Notre Dame Law Review (forthcoming 2020)).
• Greer Donley, Beatrice Chen & Sonya Borrero, The Legal and Medical Necessity of Abortion Care Amid the COVID-19 Pandemic, (Journal of Law & the Biosciences, Forthcoming).
• Tifani Silveria, Whole Woman's Health: Not the 'Whole' Story, (Regent University Law Review, Vol. 32, No. 1, 2019).
• Nancy J. Knauer, The LGBT Equality Gap and Federalism, (American University Law Review, Vol. 70, No. 1, 2020).
• David S. Miller, et al, The FFCRA and CARES Act: Key Provisions Affecting Nonprofit Organizations (April 23, 2020).
• Philip Hackney, Political Justice and Tax Policy: The Social Welfare Organization Case, (Texas A&M Law Review, Vol. 8, 2021, Forthcoming).

From SSRN (International and Non-U.S. Law):

• Ioana Cismas & Ezequiel Heffes, Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance, (Yearbook of International Humanitarian Law Vol. 22: 70 Years Geneva Conventions: Past, Present and Future (2020 Forthcoming)).
• Giancarlo Anello, Homo Religiosus in a Globalized World: How Religious Individuals are Actors of Global Law, (April 4, 2020).
• Margaret Muga & Joshua Malidzo Nyawa, Judicial Protection of the Minority Religious Beliefs: A Commentary on the Rastafarian and Mohammed Fugicha (Hijab) Judgments, (March 28, 2020).
• Shaikh Ahmad, Review on Triple Talaq Within the Islamic Legislations, (March 28, 2020).
• Shaikh Ahmad, Muslim Women's Rights Regarding Marriage and Divorce In the Context of the Islam Religion, (March 31, 2020).
• Shaikh Ahmad, Analysis of the Triple-Talaq Within the Framework of Judiciary in India With Reforms of Sharia Law, (April 2, 2020).

From SmartCILP:

• Shams Al Din Al Hajjaji, A Tale of Two Theories: Government By Judiciary Theory versus Guardianship of the Jurist Theory, 33 Emory International Law Review 503-533 (2019).

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

DOE Will Not Enforce Ban On Religious Organizations As Contractors For "Equitable Services" Under Federal Grants

The Elementary and Secondary Education Act requires local educational agencies to include private schools in their federally funded programs to provide supplemental educational services to provide equitable, high-quality education for students from low-income families. School districts may contract with outside providers for various educational services, however under ESSA, the provider must be independent of any religious organization.  In a press release yesterday, the U.S. Department of Education announced that this restriction would no longer be enforced, saying in part:

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

The Department will, however, continue to enforce the statutory requirement that the outside services being provided are "secular, neutral and non-ideological."

Supreme Court Denies Cert. In Case On Preservation Grants To Churches

The U.S. Supreme Court today denied review in the companion cases of Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, (Docket No.18-364) and Presbyterian Church in Morristown v. Freedom From Religion Foundation, (Docket No. 18-365) (certiorari denied 3/4/2019). (Order List [scroll to pg. 9]).  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The New Jersey Supreme Court concluded that there is no implied exception to this prohibition for historical preservation, and that this is consistent with the Free Exercise Clause of the U.S. Constitution. (See prior posting.)  In the U.S. Supreme Court today, Justice Kavanaugh, joined by Justices Alito and Gorsuch, filed a statement concurring in the denial of review, but contending that:

the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.

However they agreed that certiorari should be denied in this case both because of unclear factual details and because

there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs.

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the False Analogy to Church Taxes, (Kentucky Law Journal, Vol. 106, p. 679, 2018 (symposium)).
• Petro Kurmaiev, Prostitution: The Essence and Motives, (July 23, 2018).
• Samuel Wolfe Calhoun, If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?, (74 Wash. & Lee L. Rev. Online 565 (2019)).
• Siraj Khan, Arab and Islamic States’ Practice: The Sharíʿah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, (in Tallyn Gray (editor), Islam and International Criminal Law and Justice, Torkel Opsahl Academic EPublisher, Brussels, 2018).

From SmartCILP:

• Richard D. Komer, Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments, 44 Mitchell Hamline Law Review 551-613 (2018).

New Mexico Supreme Court Upholds Textbook Loan Program

In Moses v. Ruszkowski, (NM Sup. Ct., Dec. 13, 2018), the New Mexico Supreme Court in a 5-2 decision held that New Mexico's textbook loan program does not violate the state constitution. The program provides for the loan of secular textbooks to private and parochial school students.  In 2015, the state Supreme Court held that the program was unconstitutional. (See prior posting.) However in 2017, the U.S. Supreme Court  granted certiorari, vacated the judgment and remanded the case for further consideration in light of the U.S. Supreme Court's Trinity Lutheran Church decision. (See prior posting.) Now on remand, the state Supreme Court reversed itself, saying in part:

On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the United States Constitution. To avoid constitutional concerns, we hold that the textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3. We also hold that the textbook loan program is consistent with Article IV, Section 31 of the New Mexico Constitution, which addresses appropriations for educational purposes, and Article IX, Section 14 of the New Mexico Constitution, which limits “any donation to or in aid of any person, association or public or private corporation.”

Chief Justice Nakamura and Justice Clingman dissented. Courthouse News Service reports on the decision.

Attorneys Get Fee Award In Trinity Lutheran Case

Yesterday, a Missouri federal district court handed down a fee award to successful plaintiff's counsel in last year's important Trinity Lutheran case.  In the case, the Supreme Court ultimately upheld the right of a church to participate in a Missouri grant program for school playgrounds. In Trinity Lutheran Church of Columbia v. Comer, 2018 U.S. Dist. LEXIS 190824 (WD MO, Nov. 7, 2018), the court awarded attorneys' fees totaling $433,792 for litigating the case from district court through the U.S. Supreme Court.  It also awarded costs and expenses of $32,593. Plaintiff had asked for attorney's fees totaling $840,605.

Cert Filed In Case Testing Limits of Trinity Lutheran Case

A petition for certiorari (full text) was filed on Tuesday with the U.S. Supreme Court in Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation.  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution. The petition for review frames the issues in the case as follows:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran [v. Comer].

2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

Becket issued a press release announcing the filing of the cert. petition.

Suit Challenges Exclusion of Sectarian Schools From Maine's High School Tuition Program

In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  However state law bars paying tuition for students to attend sectarian schools.  On Monday a suit was filed challenging that exclusion.  The complaint (full text) in Carson v. Hasson, (D ME, filed 8/21/2018), alleges that this exclusion violates the 1st and 14th Amendments.  In a press release announcing the filing of the lawsuit, First Liberty described the claims:

By singling out religious schools, and religious schools only, for discrimination, Maine violates the religious freedom and equal protection guarantees of the U.S. Constitution. As the U.S. Supreme Court’s Chief Justice John Roberts wrote for a 7-2 majority in last year’s Trinity Lutheran Church v. Comer decision, excluding a church “from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution…and cannot stand.” Armed with this recent decision, IJ and FLI’s clients intend to vindicate the principle that government programs cannot discriminate against religion.

Federal Contract Compliance Office Issues Directive On Religious Rights of Contractors

The Office of Federal Contract Compliance Programs last week issued Directive 2018-03 (Aug. 10, 2018) in order to maximize free exercise rights of federal contractors and subcontractors. OFCCP is responsible for enforcing the anti-discrimination and equal opportunity provisions applicable to contractors and subcontractors.  The Directive says in part:

Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014) (the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations)....

OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.0. 11246....

Liberty Counsel issued a press release discussing the Directive. Think Progress reports on the Directive.