New podcast: Are some SCOTUS justices asking, 'Are all religious schools equal in Maine?'

Let’s say that, in the state of Maine, there are two very different “Lutheran” schools. You could, in this hypothetical case, also say “Episcopal,” or “Presbyterian” or “Congregational.”

Leaders at one of these schools insist that their school is in “the Lutheran tradition,” and it may retain ties to a doctrinally liberal flock. The school has a chapel, but attendance is optional since its students (it may be an elite boarding school) come from all kinds of religious faiths or have no stated faith at all. Classes on hot-button moral issues — sexuality, for example — stress this church’s progressive doctrines.

Academic life is very different at the other Lutheran school, which draws most of its students and financial support from a conservative Lutheran body. Chapel attendance is required and classes linked to moral theology are quite countercultural — defending 2,000 years of Christian tradition.

The question, in the latest church-state case at the U.S. Supreme Court, is whether the state of Maine has the power to say that the first school is eligible for tuition support — using tax dollars — because it’s policies do not clash with those in public schools. Students at the conservative school are not eligible, because its beliefs are “sectarian.”

This is tricky territory and church-state experts on the Religious Right would certainly disagree with experts from the Religious Left and secular think tanks. The question discussed in this week’s “Crossroads” podcast (click here to tune that in) is whether journalists covering this case allowed readers a chance to understand the views of activists on both sides.

Let me state, right up front, that my dueling Lutherans illustration is based on “equal access” church-state principles that emerged from a left-right coalition during the Bill Clinton administration. The big idea: If state officials create policies that affect nonprofits, they cannot back secular groups while discriminating against religious organizations. States could, however, deny aid to both. In other words, religious faith is not a uniquely dangerous form of speech or activity.

Let me state this another way. Under the separation of church and state, officials are not supposed to use tax dollars to back state-approved forms of religion. Ah! But what if some religious groups have doctrines that are consistent with state policies, while others clash with the doctrines of the state?

Don't neglect the Supreme Court's potentially weighty case on religious schools funding

Media eyes are trained on the U.S. Supreme Court's December 1 argument on Mississippi's abortion restrictions, preceded by a fast-tracked November 1 hearing about the stricter law in Texas. But don't neglect the Court's December 8 hearing and subsequent decision on tax funding of religious schools in the potentially weighty Carson v. Makin case (docket #20-1088).

University of Baltimore law Professor Kimberly Wehle certainly wants us to pay heed, warning October 14 via TheAtlantic.com that this is a "sleeper" appeal that "threatens the separation of church and state." In her view, the high court faces not just the perennial problem of public funding for religious campuses. She believes the justices could decide "religious freedom supersedes the public good" by aiding conservative Christian schools that, based on centuries of doctrine, discriminate against non-Christian and LGBTQ students and teachers.

Journalistic backgrounding: Thinly-populated Maine provides an unusual context for this story because the majority of its 260 school districts do not operate full K-12 systems and instead pay tuition for public or private schools that families choose for upper grades. Religiously-affiliated schools are included, but not if Maine deems them "sectarian."

Notably, the parents' plea for tuition is backed by major institutions of the Catholic Church, the Southern Baptist Convention and other evangelical Protestants, the Church of God in Christ (the nation's largest African-American denomination), Latter-day Saints (formerly called "Mormons") and Orthodox Judaism, alongside the 63-campus Council of Islamic Schools. A reporter's question: Has such a religious coalition ever formed in any prior Supreme Court case?

Of further interest, the case engages a major religious-liberty theorist, Michael W. McConnell, director of Stanford University's Constitutional Law Center and former federal judge on the 10th Circuit Court of Appeals. He wrote that circuit's 2008 opinion in Colorado Christian University v Weaver (.pdf here), which tossed out a law that barred "pervasively sectarian" colleges from a state scholarship program.

In Carson, McConnell filed a personal brief September 8 that hands the Supreme Court a history lesson (.pdf here) on religious freedom as conceived when the Constitution's First Amendment was framed. He has explored this ground since a significant Harvard Law Review article in 1989.