Several Jewish groups urge high court to reverse Maine parochial school decision

Maine law limits religious schools’ abilities to receive some public funding

Kjetil Ree

Supreme Court of the United States

Several Jewish groups are urging the Supreme Court to reverse a lower court decision upholding a Maine law limiting religious schools’ ability to receive public funding.

The case, Carson v. Makin, involves a Maine law providing tuition assistance for children in private schools — excluding “sectarian” schools — for residents of areas without a public school district.

Three Jewish groups filed separate amicus briefs on Friday urging the Supreme Court to overturn the lower court decision: the Orthodox Union; National Jewish Commission on Law and Public Affairs (COLPA), joined by Agudath Israel of America and other groups; and the Jewish Coalition of Religious Liberty (JCRL). The National Council of Young Israel also joined a brief alongside the Partnership for Inner-City Education and the Council of Islamic Schools of North America.

“This is a very important case, the latest in a series of cases that we’ve been involved in over the years to really advance the view in the Court that religious liberty stands for the proposition that the government cannot discriminate against religious organizations or religious people in government programs,” Nathan Diament, executive director of the OU Advocacy Center, told Jewish Insider. “We’ve had success in the Court with this argument in recent years.”

Other recent cases on related issues include Espinoza v. Montana Department of Revenue and Trinity Lutheran Church of Columbia, Inc. v. Comer. In both cases, the Court struck down state laws that were found to discriminate against religious schools.

Nathan Lewin, a constitutional lawyer who helped write the COLPA brief, called the Maine law a “flagrant violation of the Free Exercise Clause.”

“It provides a disincentive for anybody following their religion,” he told JI. “Instead of just simply saying, ‘We’re going to pay for your secular education while you pay for your religious education,’ [they said,] ‘We’re going to disqualify you from your secular education — which you have to have — because you do it in a religious way.’”

The COLPA brief goes further than the OU and JCRL briefs, calling for the high court to not only overturn the Maine law but also overturn the 1971 decision in Lemon v. Kurtzman, in which the Court established a three-pronged test to determine whether laws concerning religion are discriminatory. Some religious liberty advocates argue the “Lemon test” allows for discrimination.

“I personally have been urging that we should look for a way to get Lemon v. Kurtzman overruled,” Lewin said. “I think that’s very important for the Jewish community.”

While the court has ruled several times recently in favor of religious schools, none of the recent cases related directly to Lemon v. Kurtzman, according to Lewin.

“The Court has clearly stepped far away from that original decision… The time has come to overrule and allow funding of secular studies in religious schools,”  Mordechai Biser, general counsel for Agudath Israel, told JI. “It would seem to be logical to formally bury Lemon v. Kurtzman, which would put an end to… cases like this one where the lower courts aren’t clear what they’re supposed to do.”

Diament is optimistic regarding the Maine case. OU is hoping that seven of the Court’s nine justices will vote to strike down the Maine law, he said, noting that liberal justices Stephen Breyer and Elena Kagan voted with the conservative majority in Trinity Lutheran. The court ruled 5-4 in Espinoza.

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