Religious Institutions Update: July 2022

• Published date: 20 July 2022
• Subject Matter: Employment and HR, Consumer Protection, Government, Public Sector, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law, Education, Trials & Appeals & Compensation
• Law Firm: Holland & Knight
• Author: Mr Nathan Adams IV

KEY CASES

Establishment Clause

Maine Scholarship Program Excluding Sectarian Schools Unconstitutional

In Carson v. Makin, 142 S.Ct. 1987 (2022), the U.S. Supreme Court struck a tuition assistance program that requires school districts to transmit payment to the secondary school ' public or private, in-state or out-of-state ' that parents would like their child to attend as long as the school is nonsectarian. Maine is the most rural state in the union. Not all school districts operate a public secondary school, so the legislature responded with this financial aid program. In administering the program, Maine considered a "sectarian school to be one that is associated with a particular faith or belief system and which, in addition to teaching academic subjects, promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith." According to the court, "The State pays tuition for certain students at private schools - so long as the schools are not religious. That is discrimination against religion." Maine and the First Circuit argued that Maine's limitation was a permissible "use" based limitation on public funds, rather than an exclusion based on the school's religious status. The majority disagreed there was any distinction between the two. The court also rejected "play in the joints" between the religion clauses as grounds to allow Maine to enforce a stricter separation of church and state in tension with the Free Exercise Clause in the absence of any linkage to clergy education. Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor dissented and expressed grave concern about the potential for state-sponsored religious primary instruction to trigger religious conflict and about the court "dismantl[ing] the wall of separation between church and state."

U.S. Supreme Court Recognizes Abandonment of the Lemon Test

The U.S. Supreme Court formally recognized abandonment of the so-called Lemon test this term. Two rulings are important in this regard. First, in Shurtleff v. City of Boston, 142 S.Ct. 1583 (2022), the court ruled that the City of Boston violated the Free Speech Clause by refusing to allow the plaintiff, director of an organization called Camp Constitution, to raise a "Christian flag" under the city's program allowing private groups to use one of three flag poles on the plaza in front of City Hall to fly the flag of their choosing for the duration of events sponsored by the group. The city refused the request based on a concern that flying the flag could violate the Establishment Clause. Justice Breyer delivered the opinion of the court. It dispensed with the city's concern not on the basis of the Lemon test. Instead, the court mentioned a triad of factors based on history, the public's perception of who is speaking and the extent to which the government has exercised control over speech. Concurring only in the judgment, Justices Samuel Alito, Clarence Thomas and Neil Gorsuch rejected this three-part test as "always and everywhere" applicable when the government claims that its actions are immune to First Amendment challenge under the government-speech doctrine. They noted the opinion itself proved the three-part test is not always applicable because two of the factors favored the city, yet the court decided against it. They would have resolved the case by deciding whether the government purposefully expresses a message of its own through persons authorized to speak on its behalf without relying on a means that abridges private speech. Justices Gorsuch and Thomas, responsible for a second concurrence, asked the question how the city got it "so wrong" anyway. They put some of the blame on Lemon, which they argued the court had not applied for nearly two decades and actually had been laid to rest. They asked why localities and lower courts nevertheless frequently exhumed it. They had two theories: some simply preferred the policy outcomes that Lemon could be "manipulated" to produce and some preferred Lemon to undertaking "a careful examination of the Constitution's original meaning."

Justices Gorsuch and Thomas persuaded a majority on the court about Lemon in Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407 (2022). The court ruled that Bremerton School District unconstitutionally burdened a coach's Free Exercise and Free Speech rights by suspending him for persisting in quiet prayer on the 50-yard line after football games. In so doing, the court stated that it had already abandoned the so-called "Lemon test"...