The 1st U.S. Circuit Court of Appeals heard argument earlier this month in yet another funding case that explores the limits of the U.S. Supreme Court’s decision in Trinity Lutheran. In that case, the Court held that under the First Amendment a church could not be denied access to a state playground refurbishment grant program, even though the state’s constitution prohibits the state from funding religion. The Supreme Court, however, emphasized that the funds in question were for a playground and indicated that its ruling did not address “religious uses of funding.”
That warning hasn’t dissuaded plaintiffs from using the Trinity Lutheran ruling to demand access to government funds in circumstances that otherwise would be prohibited under state law. The First Circuit’s case, Carson v. Makin, involves parents whose children do not live in a district with a high school. In such cases, state law requires the government to fund that child’s private education, but only for a nonsectarian school
Maine’s restriction against sectarian funding has been upheld numerous times, including by the First Circuit in a case called Eulitt, but not since Trinity Lutheran. The parents/plaintiffs in Carson claim that Trinity Lutheran supersedes Eulitt and requires their children’s religious education to be funded by the state.
The District Court acknowledged that Trinity Lutheran may call Eulitt into question, but explained that it is for the appeals court to decide whether Eulitt must be overturned in light of Trinity Lutheran.
Here is an excerpt:
In Trinity Lutheran, while holding that Missouri could not disqualify pre-school programs from a subsidy for shredded tires on their playgrounds solely because they were operated by a church, four members of the Court (Justices Roberts, Kennedy, Alito, and Kagan) said in footnote 3: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Justice Breyer (who did not concur in the opinion but only in the judgment) focused on “the particular nature of the ‘public benefit’ here at issue,” and “would leave the application of the Free Exercise Clause to other kinds of public benefits for another day.” That totals a majority of justices (five) who have said that Trinity Lutheran was not deciding such other issues. I cannot, as a trial judge, say that Eulitt therefore has unmistakably been cast into disrepute. It is certainly open to the First Circuit to conclude that, after Trinity Lutheran, it should alter its Eulitt holding that sustained Maine’s educational funding law, but it is not my role to make that decision.
While Carson has now been submitted to the 1st U.S. Circuit Court of Appeals, the U.S. Supreme Court is scheduled to hear argument in another school funding case (Espinoza v. Montana Department of Revenue) that requires them to apply Trinity Lutheran. For more on Espinoza, check out BJC’s case resource page.