Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

NO. 20-1088

IN THE





Supreme

Court of the United States





DAVID CARSON, AS PARENT AND

NEXT FRIEND OF O. C., ET AL.,

Petitioners,

v.

A. PENDER MAKIN, IN HER OFFICIAL CAPACITY AS

COMMISSIONER OF THE MAINE DEPARTMENT OF

EDUCATION,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

BRIEF OF THE JEWISH COALITION OF

RELIGIOUS LIBERTY AS AMICUS CURIAE

SUPPORTING PETITIONERS

YAAKOV M. ROTH

ANTHONY J. DICK

MEREDITH HOLLAND

KESSLER

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

ERIN MORROW HAWLEY

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 6

I.

II.

There is no meaningful distinction

between religious status and conduct,

especially for Orthodox Jewish schools ............. 6

A.

The First Circuit’s distinction is

illusory ........................................................ 7

B.

The status-use distinction renders

Espinoza a dead letter for Orthodox

Jewish schools .......................................... 10

A status-conduct distinction is

irreconcilable with the Free Exercise

Clause and would violate the

Establishment Clause ...................................... 14

A.

The Free Exercise Clause prohibits

anti-religious discrimination

whether it targets belief or action ........... 15

B.

The First Circuit’s approach also

violates the Establishment Clause .......... 19

III. The lower court’s rationalizations for

Maine’s discriminatory regime are

misguided .......................................................... 23

CONCLUSION ......................................................... 26

ii

TABLE OF AUTHORITIES

Page(s)

CASES

A.H. ex rel. Hester v. French,

985 F.3d 165 (2d Cir. 2021).............................. 9, 10

Agency for Int’l Dev. v. All. for Open

Soc’y Int’l, Inc.,

570 U.S. 205 (2013) ........................................ 10, 19

Cantwell v. Connecticut,

310 U.S. 296 (1940) ........................................ 14, 16

Church of Lukumi Babalu Aye, Inc.

v. Hialeah,

508 U.S. 520 (1993) .............................................. 18

Colo. Christian Univ. v. Weaver,

534 F.3d 1245 (10th Cir. 2008) .............................. 9

Duquesne Univ. of the Holy Spirit

v. NLRB,

947 F.3d 824 (D.C. Cir. 2020) .............................. 22

Epperson v. Arkansas,

393 U.S. 97 (1968) ................................................ 20

Espinoza v. Mont. Dep’t of Revenue,

140 S. Ct. 2246 (2020) ...................................passim

Everson v. Bd. of Educ. of Ewing Twp.,

330 U.S. 1 (1947) ...................................... 20, 23, 25

FCC v. League of Women Voters of Cal.,

468 U.S. 364 (1984) .............................................. 10

Hosanna-Tabor Evangelical Lutheran

Church & Sch. v. EEOC,

565 U.S. 171 (2012) .............................................. 22

‹‹‹

TABLE OF AUTHORITIES

(continued)

Page(s)

Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in N. Am.,

344 U.S. 94 (1952) ................................................ 22

Lyng v. Nw. Indian Cemetery

Protective Ass’n,

485 U.S. 439 (1988) .............................................. 15

Masterpiece Cakeshop, Ltd. v. Colo. Civ.

Rights Comm’n,

138 S. Ct. 1719 (2018) .......................................... 24

McDaniel v. Paty,

435 U.S. 618 (1978) .............................................. 15

Mitchell v. Helms,

530 U.S. 793 (2000) .............................................. 25

NLRB v. Cath. Bishop of Chi.,

440 U.S. 490 (1979) .............................................. 21

Our Lady of Guadalupe Sch. v.

Morrissey-Berru,

140 S. Ct. 2049 (2020) .............................. 11, 13, 22

Pierce v. Soc’y of the Sisters of the Holy

Names of Jesus & Mary,

268 U.S. 510 (1925) .............................................. 18

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

137 S. Ct. 2012 (2017) ...................................passim

Wisconsin v. Yoder,

406 U.S. 205 (1972) ........................................ 18, 20

‹˜

TABLE OF AUTHORITIES

(continued)

Page(s)

STATUTES

Me. Stat. tit. 20-A, § 2901 ......................................... 24

Me. Stat. tit. 20-A, § 2902 ......................................... 24

Me. Stat. tit. 20-A, § 2951 ........................................... 8

OTHER AUTHORITIES

Anti-Defamation League, School &

Workplace Accommodations for the

Jewish High Holidays .......................................... 12

J. Buchanan, Linguae Britannicae Vera

Pronunciatio (R. Alston ed. 1967)

(London 1757) ....................................................... 16

Michael W. McConnell, The Origins and

Historical Understanding of Free Exercise

of Religion, 103 HARV. L. REV. 1409 (1990) ......... 16

Rona Sheramy, The Day School Tuition

Crisis: A Short History, Jewish

Review of Books (2013) ........................................ 11

1

INTEREST OF AMICUS CURIAE 1

The Jewish Coalition for Religious Liberty is a

nonprofit organization—a group of lawyers, rabbis,

and professionals who practice Judaism and defend

religious liberty. The Coalition’s members have

written on the role of religion in public life.

Representing members of the legal profession and

adherents of a minority religion, Amicus has a unique

interest in ensuring the flourishing of diverse religious

viewpoints and practices. The Coalition advocates for

people of faith who practice their faith in religious

services, schools, and the public square.

Amicus urges this Court to reverse the First

Circuit’s decision and hold that there is no meaningful

distinction between discrimination based on religious

conduct and discrimination based on religious status.

In Espinoza v. Montana Department of Revenue, 140

S. Ct. 2246 (2020), this Court reaffirmed that state

discrimination against religion is subject to “the

strictest scrutiny” but reserved the question whether

“some lesser degree of scrutiny applies to discrimination against religious uses of government aid.” Id. at

2257. In this case, the First Circuit demonstrated

exactly why this Court should confirm that discrimination based on religious conduct is subject to the

same level of scrutiny as discrimination based on

religious status.



ͳNo counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. All parties have filed blanket consents

to the filing of amicus briefs at the merits stage.



2

The First Circuit held that discrimination based on

religious use was subject only to rational basis review.

It then adopted an expansive definition of religious use

that would exclude every Orthodox Jewish day school

from the protections that this Court articulated in

Espinoza. Amicus urges this Court to reverse the First

Circuit and affirm that the First Amendment protects

Orthodox Jewish parents and schools even if they

“promote[ ]” Judaism “and/or present[ ] the material

taught through the lens of” Judaism. Cf. Pet. App. 35.





3

SUMMARY OF ARGUMENT

This Court’s landmark decision in Espinoza v.

Montana Department of Revenue, 140 S. Ct. 2246

(2020), established that states cannot discriminate

against religion by excluding religious schools from

subsidy and scholarship programs that benefit other

private schools. That ruling promotes the flourishing

of religious exercise in this country by ensuring that

parents who wish to educate their children in a faithbased environment are not financially disadvantaged

or deterred by arbitrary government exclusions.

Yet in the decision below, the First Circuit provided

a roadmap for states and localities who want to evade

Espinoza and to discriminate against religious institutions. According to the lower court, Espinoza does not

invalidate Maine’s exclusion of “sectarian” schools

from its tuition subsidy program, because the program

is discriminating based only on religious “use” or

conduct, rather than religious “status.” Pet. App. 34–

39. By that, the court meant that Maine is allowed to

exclude sectarian schools from its subsidy program so

long as it only does so if they actually act religious to

a sufficient degree, and not if they are merely

“religious” in name only.

The Court should reverse, because that distinction

is illusory and would render Espinoza a dead letter,

especially for Orthodox Jewish schools. The conductstatus distinction is also irreconcilable with the Free

Exercise Clause (which protects religious conduct, not

just religious affiliation), and raises serious concerns

under the Establishment Clause (which forecloses

judicial line-drawing that requires evaluating

religious practices or situating them on a “sectarian”

spectrum).



4

I. To start, the First Circuit’s distinction is illusory

and, as Justice Gorsuch foresaw in Espinoza, “yield[s]

more questions than answers.” 140 S. Ct. at 2275

(Gorsuch, J., concurring). Because state money is

fungible, forbidden discrimination against religious

status could easily be disguised as “permissible”

discrimination against religious use: As below, the

State could argue it is not excluding schools because

they are religious; but because they do religious

things. And it is equally effortless to reclassify

discrimination

against

religious

conduct

as

discrimination against religious status. In this case,

for example, a court could readily describe Maine’s

exclusion of “sectarian” schools as stripping funding

based on religious status. In short, the use-status

distinction reduces Espinoza from a serious

constitutional principle to a semantic game.

And that leaves Orthodox Jewish schools and

parents especially vulnerable. There are no religiousin-name-only Orthodox Jewish day schools—all

incorporate Jewish teaching into their curriculum and

provide education “through the lens” of Judaism. Cf.

Pet. App. 35. That is why Jewish parents send their

children to those schools: to receive a strong education

in an environment that facilitates their spiritual

leaning and development. Yet even when those

Orthodox schools satisfy all the State’s accreditation

rules, the First Circuit’s distinction would allow the

State to unconstitutionally exclude them from equal

access to state subsidies because they also teach the

Talmud, celebrate Jewish holidays, or conduct prayer.



5

II. The status-conduct distinction is also in conflict

with constitutional text and history, because the Free

Exercise Clause prohibits discrimination on the basis

of both belief and action. The Framers drafted the

Clause to protect not only the right to be religious but

also the practical right to participate in religious

activity. Indeed, “[t]he right to be religious without

the right to do religious things would hardly amount

to a right at all.” Espinoza, 140 S. Ct. at 2277

(Gorsuch, J., concurring). To exclude a religious school

from subsidies just because the school acts in accord

with its religious beliefs, or incorporates those beliefs

into its curriculum, “punishe[s] the free exercise of

religion.” Id. at 2256 (quoting Trinity Lutheran

Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012,

2022 (2017)). Accepting the First Circuit’s status-use

distinction would thus put Orthodox Jewish schools to

the same unconstitutional choice rejected in Trinity

Lutheran.

Moreover, trying to apply the status-use distinction

would violate the Establishment Clause in many

cases. The status-use distinction would allow the

State to favor some religions over others (like

Orthodox Judaism) based on how they manifest their

beliefs in the school context. Asking whether a school

promotes its “faith or belief system” or “presents the

material taught through the lens of this faith,” Pet.

App. 35, implicates religious line-drawing that is

beyond the constitutional reach of secular courts.

III. Ironically, it was the lower court’s misguided

attempt at avoiding similar concerns that caused it to

treat religious education as inferior to public

education. But that premise is foreclosed by Maine’s

scheme and this Court’s precedents alike.



6

ARGUMENT

I. There is no meaningful distinction between

religious status and conduct, especially for

Orthodox Jewish schools.

In Espinoza, this Court held that a state cannot

discriminate against religious schools in the provision

of public benefits “solely because of the religious

character of the schools.” 140 S. Ct. at 2255. The First

Circuit has now held that “religious character” means

only some abstract religious affiliation (what the lower

court called religious “status”). Meanwhile, if a state

treats a religious school unfavorably because it acts in

a religious way (what the lower court called religious

“use” of the state aid), the constitutional problem

disappears. Pet. App. 35. As a result, Maine may

exclude sufficiently “sectarian” schools from a

program that subsidizes tuition at accredited private

schools in districts with no public schools.

At the outset, this Court should reverse because the

status-use distinction is illusory. Nearly any exclusion

from a state tuition program could readily be

characterized either way, depending on the result a

judge wants to reach. That devalues the critical

constitutional principle of Espinoza: Private schools

cannot be treated worse because they are Christian

rather than Montessori, because they follow Islamic

teachings rather than the Waldorf philosophy, or

because they include prayer rather than yoga. For

Orthodox Jewish day schools in particular, there is no

practical distinction between conduct and status, and

the First Circuit’s approach would entirely eliminate

Espinoza’s protection for those schools.



7

A. The First Circuit’s distinction is illusory.

The First Circuit’s status-use distinction “yield[s]

more questions than answers.” Espinoza, 140 S. Ct. at

2275 (Gorsuch, J., concurring).

Virtually every

example of religious-status discrimination could be

recharacterized as discrimination based on religious

conduct or use, which would nullify Espinoza under

the First Circuit’s approach. On the flip side, nearly

every religious-conduct restriction could be viewed as

status discrimination, including the Maine regime

here. See, e.g., Trinity Lutheran, 137 S. Ct. at 2025

(Gorsuch, J., concurring in part). This malleability

exposes the conceptual flaw in using the use-status

dichotomy as the constitutional test.

To start with the first point, there is hardly any

discrimination against religious status that could not

be

reclassified

as

“permissible”

use-based

discrimination under the First Circuit’s rule. For

example, a rule excluding Jewish schools from a state

benefits

program

(impermissible

status-based

discrimination) could alternatively be framed as a rule

against using state funds for prayer (permissible usebased discrimination). Since money is fungible, any

exclusion of a religious institution from a benefits

program could simply be described instead as a rule

against using the state funds for religious activities—

even if the religious school also teaches math, science,

social studies, and everything else that other schools

do and that the program is intended to support.

Indeed, in this case, Maine followed the logic of

prohibiting “religious use” to its natural and

predictable conclusion and entirely banned from

participation any school deemed by state education



8

bureaucrats to be engaged in “too much” religious

conduct.

Conversely, a rule limiting religious “conduct” or

“use” by beneficiaries of a state program could readily

be characterized as religious-status discrimination.

Cf. Trinity Lutheran, 137 S. Ct. at 2025–26 (Gorsuch,

J., concurring in part); Espinoza, 140 S. Ct. at 2275

(Gorsuch, J., concurring).

Maine’s own scheme

demonstrates as much. Although Maine claims (and

the First Circuit agreed) that its eligibility

determinations for tuition assistance turn on religious

use, the framework could easily be understood to turn

on an institution’s status. Maine law provides that an

otherwise generally available tuition benefit may only

be awarded to a “nonsectarian school,” Me. Stat. tit.

20-A, § 2951(2); Pet. App. 80, and interprets that

provision to focus on whether an applicant school is

“sectarian,” Pet. App. 35.

The nonsectarian

requirement is, on its face, focused on religious status.

In other words, the Maine statute asks whether a

private school is “sectarian” (status)—not how it uses

the particular tuition dollars it would receive from

parents who elect to send their children to that school

with the benefit of the state assistance (conduct or

use). This is not some quirk of Maine’s system; any

attempt to discriminate based on religious use

inevitably will end up discriminating based on the

status of schools deemed “too religious.”

To be sure, Maine argues that its nonsectarian rule

is not actually about status because it has interpreted

state law to allow tuition funds to flow to a religious

school—so long as that school does not act too

religiously. A school may be “associated” with a faith

but must not “promote[ ] the faith or belief system



9

with which it is associated and/or present[ ] the

material taught through the lens of this faith.” Ibid.

But excluding schools from benefits because the

promotion and promulgation of their faith is a core

part of their mission is itself “discrimination on the

basis of religious status.” A.H. ex rel. Hester v.

French, 985 F.3d 165, 186 (2d Cir. 2021) (Menashi, J.,

concurring). “When a state conditions eligibility for

public benefits ‘on the degree of religiosity of the

institution and the extent to which that religiosity

affects its operations, as defined by such things as the

content of its curriculum and the religious composition

of its governing board,’ it discriminates on the basis of

religious status because it ‘discriminates among

religious institutions on the basis of the pervasiveness

or intensity of their belief.’” Ibid. (emphasis added)

(quoting Colo. Christian Univ. v. Weaver, 534 F.3d

1245, 1259 (10th Cir. 2008)).

Thus, for example, if a tuition subsidy program

excludes an Orthodox Jewish school because it begins

the school day with prayer—even though the school is

satisfying the curricular and other requirements

applicable

to

all

private

schools—that

is

discrimination based on religious status, since prayer

is part of the school’s religious identity and beyond the

proper purview of the state program (since the school

still provides the requisite services).

The takeaway is that the use-status distinction is

not a viable constitutional framework. It is subject to

manipulation and to semantic line-drawing that bear

no substantive connection to the constitutional values

at play. If the Court endorses this dichotomy, any

state seeking to exclude particular (or all) religions

could simply characterize its discrimination as use-



10

based to avoid triggering strict scrutiny.

See

Espinoza, 140 S. Ct. at 2261; e.g., French, 985 F.3d at

188 (Menashi, J., concurring) (although in practice

Vermont denied dual-enrollment funds based entirely

on a school’s religious status, it tried to justify that

discrimination based on “religious uses”). That would

engender protracted litigation and reduce Espinoza to

a nullity.

The Court should look past this artificial construct

and confirm that states cannot discriminate based on

religious status or religious conduct. Rather, as in all

First Amendment condition cases, the critical question

is whether the state is seeking to leverage its benefits

program to deter or to punish constitutionally

privileged conduct that is not meaningfully related to

the program’s religion-neutral purpose. See Agency

for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.

205, 214–16 (2013); FCC v. League of Women Voters

of Cal., 468 U.S. 364, 399–401 (1984). That is clearly

the case in tuition subsidy cases, where religious

schools already satisfy any legitimate state objectives

through their accreditation. Simply put, a state that

treats a religious school as a substitute for public

education cannot then deny equivalence to exclude the

school from public benefits. And if the schools are

indeed equivalent, exclusion based on religious status

or religious use is unconstitutional. See Part III,

below.

B. The

status-use

distinction

renders

Espinoza a dead letter for Orthodox

Jewish schools.

The status-use distinction is especially pernicious

in the context of Orthodox Jewish day schools. In fact,

the distinction cannot apply to such schools in any



11

meaningful way other than by excluding all of them.

The First Circuit’s approach would cut off all Orthodox

schools from Espinoza’s core protections—a result that

cannot be tolerated under the First Amendment. See

Part II, below.

In practice, Maine’s unequal treatment of private

schools based on whether they engage in religious

activities—what the lower court called use-based

discrimination—would allow denial of funding to

every Orthodox Jewish day school in the State. By

definition, Orthodox Jewish day schools “promote[ ]” a

Jewish “belief system” and/or “present[ ] the material

taught through the lens of this faith.” Pet. App. 35.

Said otherwise, there is no such thing as a religiousin-name-only Orthodox Jewish day school.

For Orthodox Jewish parents, sending children to

religious schools is “the sine qua non of ‘serious Jewish

child-rearing.’”

Rona Sheramy, The Day School

Tuition Crisis: A Short History, Jewish Review of

Books (2013), https://jewishreviewofbooks.com/

articles/511/the-day-school-tuition-crisis-a-shorthistory. This Court has recognized as much. See Our

Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct.

2049, 2065 (2020) (calling religious education “of

central importance in Judaism” and quoting

“Maimonides’s statement that religious instruction ‘is

an obligation of the highest order, entrusted only to a

schoolteacher possessing “fear of Heaven”’”).

Parents send their children to Orthodox Jewish day

schools for a host of intertwined religious and

educational reasons. Typically, these schools provide

a half-day of Judaic instruction, which may include

Hebrew language, Jewish history, Bible classes, and

(for older students) rigorous Talmud study. Notably,



12

the school day is often far longer than in public school

to accommodate these extra subjects of instruction.

This education is vital in preparing Jewish students to

live life as faithful Jews and to take on leadership roles

in the Jewish community.

Jewish day schools engage in other religious

practices that facilitate Jewish children’s ability to

flourish, both as students and as observant Jews. For

example, Orthodox Jewish day schools are closed on

Jewish holidays. An Orthodox student in a public

school would have to miss approximately 12 days of

school every year to observe these holidays—not only

the High Holy Days like Rosh Hashanah and Yom

Kippur, but also the lesser known but equally

important festivals of Sukkot, Shemini Atzeret, and

Passover—on which Jews are prohibited to write, use

electricity, or travel by bus or car. Jewish students

who attend public schools will miss class time and

accrue absences that could give rise to discipline. See

Anti-Defamation League, School & Workplace

Accommodations for the Jewish High Holidays,

https://www.adl.org/education/resources/tools-andstrategies/school-workplace-accommodations-forjewish-high-holidays (last visited Sept. 8, 2021)

[https://perma.cc/5UDV-VB7F].

Other days on the Jewish calendar pose different

challenges. For example, an observant student could

attend school on the intermediate days of Sukkot—

known as “Chol HaMoed”—but would be required to

eat her meals in a temporary outdoor dwelling known

as a Sukkah, which any Jewish school that remained

open on the holiday would build. (The intricate laws

of Sukkot comprise an entire tractate of the Talmud.)

Attending school during the intermediate days of the



13

Passover holiday would also create difficulties, since

there are strict restrictions on the types of foods Jews

may eat during that period and where those foods can

be prepared. And, on the topic of food more generally,

Orthodox day schools typically provide kosher meals—

which would apparently be a verboten religious “use”

of school funding under the First Circuit’s test.

Beyond curriculum and accommodation of ritual

needs, Jewish schools partner with parents to provide

an educational environment that allows students to

learn and to practice their faith. For example,

Orthodox Jewish schools incorporate daily prayer into

the school-day schedule; morning prayer is often the

first order of the day (before public schools are even

open), and afternoon prayer takes place in between

classes or after they finish.

On Mondays and

Thursdays, morning prayer for older students includes

a reading from the Torah (required for those who have

reached the age of Bar-Mitzvah, or 13). Grace After

Meals may be recited by the student body after lunch.

Gym may be deferred on religious fasts. On the festive

Purim holiday, the school might hold a carnival. Other

days of note to the Jewish community—such as Yom

Ha’Shoah (Holocaust Remembrance Day) or Yom

Ha’atzmaut (Israel’s Independence Day)—might be

marked by schoolwide assemblies. And, of course,

these schools hire teachers who model proper Jewish

behavior and law at all times, including when teaching secular subjects. Cf. Our Lady, 140 S. Ct. at 2064

(“[E]ducating young people in their faith, inculcating

its teachings, and training them to live their faith are

responsibilities that lie at the very core of the mission

of a private religious school.”).



14

For all these reasons and others, Orthodox Jewish

parents choose to send their children to schools that

provide the education and way of life that they believe

is dictated by their faith. This decision is not merely

one of preference; it follows from central religious

tenets. The intertwined nature of religious belief and

religious practice in the educational context renders

the status-conduct distinction meaningless as applied

to Orthodox Jewish day schools. And imposing this

artificial distinction, as the First Circuit did, would in

practice exclude every Orthodox Jewish day school

from Espinoza’s protection, even though those schools

satisfy all the curricular and other requirements of

Maine law. That reality underscores how the First

Circuit’s misguided and malleable framework would

extinguish Espinoza’s promise.

II. A status-conduct distinction is irreconcilable with the Free Exercise Clause and

would violate the Establishment Clause.

The First Amendment cannot tolerate the statusconduct distinction. The Constitution protects both

“freedom to act” and “freedom to believe.” Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940). It does not

“care[ ]” whether discrimination is based on conduct or

on status. Espinoza, 140 S. Ct. at 2276 (Gorsuch, J.,

concurring). Whether the State discriminates based

on religious status or religious conduct “makes no

difference”; it is unconstitutional all the same. Ibid.

Furthermore, distinguishing status from conduct

would violate the Establishment Clause too, by

preferring certain faiths over others, and by forcing

courts to make intrusive judgments on matters of

faith. The Court should reverse for these reasons as

well.



15

A. The Free Exercise Clause prohibits antireligious discrimination whether it

targets belief or action.

Maine’s discriminatory regime violates the Free

Exercise Clause by coercing religious persons and

schools “into violating their religious beliefs” or

“penaliz[ing] religious activity by denying [them] an

equal share of the rights, benefits, and privileges

enjoyed by other[s].” Lyng v. Nw. Indian Cemetery

Protective Ass’n, 485 U.S. 439, 449 (1988). The usestatus distinction the First Circuit proposes to escape

this conclusion cannot be squared with the original

meaning of the constitutional text, the values of the

Clause, or this Court’s precedent.

1. Before the Founding, the status-conduct distinction was used to perpetuate discrimination against

disfavored religions. Oliver Cromwell, for instance,

infamously promised religious “freedom” to Catholics

in Ireland: “‘As to freedom of conscience, I meddle with

no man’s conscience; but if you mean by that, liberty

to celebrate the Mass, I would have you understand

that in no place where the power of the Parliament of

England prevails shall that be permitted.’” Espinoza,

140 S. Ct. at 2278 (Gorsuch, J., concurring) (quoting

McDaniel v. Paty, 435 U.S. 618, 631 n.2 (1978)

(Brennan, J., concurring in the judgment)). The

Georgia Charter of 1732, likewise, employed the

distinction to provide lesser protections for Catholics.

While it allowed “a liberty of conscience” for “all

persons inhabiting ... our said province,” it provided

the “free exercise of religion” to “all such persons,

except papists.” Michael W. McConnell, The Origins

and Historical Understanding of Free Exercise of

Religion, 103 HARV. L. REV. 1409, 1489 (1990)



16

(emphasis added). The “most plausible” reading of

that provision is to “permit[ ] Catholics to believe what

they wished” but not “to put their faith into action.”

Id. at 1490. To fast forward to today, the First Circuit

might have called that ban on the exercise of Catholic

faith a mere restriction on religious conduct, not

status. (Of course, it is just that, showcasing again the

gossamer nature of the dichotomy.)

To end that type of discrimination, the Founders

intentionally drafted the First Amendment to protect

the “freedom to act” and the “freedom to believe.”

Cantwell, 310 U.S. at 303. After all, it is the Free

Exercise Clause, not the Free Conscience Clause. The

Framers chose to substitute a right of “free exercise”

for a right “of conscience,” making “clear that the

clause protects religiously motivated conduct as well

as belief.” McConnell, supra, at 1488. While the

founding generation might have understood a right of

“conscience” to include only personally held beliefs, the

term “exercise” was widely understood to mean “use”

or “practice.” Id. at 1489 (citing, among others, J.

Buchanan, Linguae Britannicae Vera Pronunciatio (R.

Alston ed. 1967) (London 1757)). By employing the

phrase “free exercise,” the Framers thus expressly

extended “the broader freedom of action to all

believers.” Id. at 1490 (emphasis added).

The Founders’ elevation of exercise over conscience

was purposeful as they understood that “[t]he right to

be religious without the right to do religious things

would hardly amount to a right at all.” Espinoza, 140

S. Ct at 2277 (Gorsuch, J., concurring).

They

recognized the cruelty of prohibiting individuals of

faith from acting on their beliefs. And they squarely

rejected that cramped view of religious freedom.



17

2. Maine’s program further violates Free Exercise

principles because it forces religious schools into a

dilemma: “participate in an otherwise available

benefit program or remain a religious institution,”

Trinity Lutheran, 137 S. Ct. at 2021–22. It also puts

parents to a choice between their religious beliefs and

receiving a public benefit. See id. at 2023.

Making matters worse, the Maine regime coerces

religious schools and parents to act less religious to

qualify for public benefits. To appear less “sectarian,”

an Orthodox Jewish school might make pre-class

morning prayer “optional,” give up communal Grace

After Meals in favor of individual recitation, or call its

Talmud class “comparative law.” Or a Catholic high

school that requires its students to volunteer at a

homeless shelter or soup kitchen might call that

“community service” instead of “corporal works of

mercy” to obscure its religious core. Such incentives

exist because Maine allows participating schools to be

religious provided they do not act religious.

By conditioning public benefits on not acting “too”

religious, Maine’s program exemplifies to an even

greater extent the coercion this Court in Trinity

Lutheran decried. The “sectarian” restriction induces

schools to downplay their religious features and to

conceal their religious practices so that they could be

perceived as acceptably religious-in-name-only. That

is unconstitutional. See id. at 2020 (free exercise

violation exists where “affected individuals [are]

‘coerced by the Government’s action into violating

their religious beliefs’”).

For the reasons explained above and others,

Orthodox Jewish parents exercise their “high duty” to

send their children to Orthodox Jewish day schools—



18

schools in which these practices and teachings are part

and parcel of the educational formation provided to

their students. See Pierce v. Soc’y of the Sisters of the

Holy Names of Jesus & Mary, 268 U.S. 510, 534–35

(1925). But, under Maine’s regime, the more an

Orthodox Jewish day school fulfills its faith-derived

function and obligations to educate, the more parents

are punished by the State for choosing to send their

children to that school. This perversely incentivizes

Orthodox Jewish day schools to become less like the

schools that Orthodox Jews believe are required by

their faith and more like the schools of some other

faith or another branch of Judaism—or, perhaps, to

pretend to be so to be accessible to parents who rely on

the tuition benefit program and wish to send their

children to a faith-based school. Maine’s regime

undercuts the ability of Orthodox Jewish day schools

to fulfill an important obligation to their faith

community, and cannot be reconciled with the Free

Exercise Clause.

3. This Court’s precedent confirms that the statusconduct distinction carries no constitutional weight.

For example, in Church of Lukumi Babalu Aye, Inc. v.

Hialeah, this Court invalidated an ordinance banning

a religious practice and explained that laws

“target[ing] religious conduct for distinctive

treatment … will survive strict scrutiny only in rare

cases.” 508 U.S. 520, 546 (1993); see also Wisconsin v.

Yoder, 406 U.S. 205, 220 (1972) (explaining that a Free

Exercise case “does not become easier” because a state

targets action rather than belief, since “belief and

action cannot be neatly confined in logic-tight

compartments,” particularly in the school context).



19

In short, religious conduct is protected by the First

Amendment, and excluding those who engage in such

conduct from otherwise-available public benefits

“inevitably deters or discourages the exercise of First

Amendment rights.” Trinity Lutheran, 137 S. Ct. at

2022 (cleaned up). Consequently, “[w]hat benefits the

government decides to give, whether meager or

munificent, it must give without discrimination

against religious conduct.” Espinoza, 140 S. Ct. at

2277 (Gorsuch, J., concurring). And in deciding what

restrictions qualify as discriminatory (versus merely

being limits on the scope of the program), this Court’s

unconstitutional conditions precedent points the way.

See Agency for Int’l Dev., 570 U.S. at 214–16; supra at

10.

*

*

*

Ultimately, whether Maine’s regime is purportedly

use-based or status-based is merely the flip side of the

same discriminatory coin. Seen one way, Maine

excludes schools for acting in accord with religious

tenets; seen the other, it would exclude schools for

being religious. Either way, this discrimination

violates the text and original meaning of the Free

Exercise Clause and this Court’s precedents.

B. The First Circuit’s approach also violates

the Establishment Clause.

The conduct-status distinction also runs directly

into the Establishment Clause—both by favoring

certain religions or denominations over others, and by

compelling judicial inquiry into ecclesiastical matters.

This is yet another, independent basis on which the

First Circuit’s framework is unconstitutional.



20

1. To start, the First Circuit’s framework would

permit the State to exclude all Orthodox Jewish

schools while favoring other religious schools

(including other streams of Judaism) that do not follow

the same type of pervasive ritual practices. Unlike

Orthodox Judaism, those other faiths may allow for

“religious” schools that comply with Maine’s

nonsectarian rule and qualify for assistance.

The problem is that the First Amendment does not

allow the government to “prefer one religion over

another” for any reason—let alone because its

members lead less pervasively faithful lives. Everson

v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947).

Rather, the Constitution “mandates governmental

neutrality between religion and religion, and between

religion and nonreligion.” Epperson v. Arkansas, 393

U.S. 97, 104 (1968). A scheme that benefits only more

commonly practiced or more secularized religions does

not comply with this principle because it discriminates

against parents whose religion requires an integrated,

faith-driven education of their children. Cf. Yoder, 406

U.S. at 216 (“[T]he traditional way of life of [certain

religious communities] is not merely a matter of

personal preference, but one of deep religious

conviction, shared by an organized group, and

intimately related to daily living.”).

2. The First Circuit’s conclusion that a state may

deny tuition benefits to some religious schools also

hopelessly entangles the state in religious matters,

which is itself a serious Establishment Clause

problem. “It is not only the conclusions that may be

reached by [officials] which may impinge on” First

Amendment rights, “but also the very process of

inquiry.” NLRB v. Cath. Bishop of Chi., 440 U.S. 490,



21

502 (1979). Here, the inquiry contemplated by state

law and the First Circuit—asking which schools’

instruction crosses the highly subjective line to being

“sectarian”—requires state officials or courts to make

intrusive judgments about religious matters.

Determining that a school is “sectarian” boils down

to a determination that, in the State’s view, the school

is too religious to qualify to receive tuition assistance

from the parents who choose them. In doing so, the

State must necessarily make judgments on matters of

faith and doctrine—namely, which elements of a

religious school’s instruction are infused with or

informed by its religion—and then somehow decide

where a school’s degree of religiosity falls on a vague

and subjective spectrum of sectarianism. This not

only invites but requires state bureaucrats and courts

to trespass into forbidden ecclesiastical territory.

Recalling the hypotheticals above, supra at 17, does

it matter if students pray silently or aloud in unison?

Does it matter if certain rituals are deemed optional

or voluntary? Can a Talmud class be rationalized as

comparative legal study?

If a school requires

volunteer service at a hospital or homeless shelter to

satisfy the Catholic tradition of Corporal Works of

Mercy, does it matter that secular schools often

require analogous community service for non-religious

reasons? In all these instances, the State or the court

would have to inquire into whether the school’s

practices are informed by a “faith or belief system,”

and if so, to what degree. Pet. App. 35.

The Constitution protects religious institutions

from these kinds of intrusive judgments by a state or

the judiciary. “[A]ny attempt by government to dictate

or even to influence … matters [of faith and doctrine]



22

would constitute one of the central attributes of an

establishment of religion”—an “intrusion” that is

“outlaw[ed]” by the First Amendment. Our Lady, 140

S. Ct. at 2060; see also Kedroff v. St. Nicholas

Cathedral of Russian Orthodox Church in N. Am., 344

U.S. 94, 116 (1952) (observing that the Court’s

Establishment Clause jurisprudence “radiates … a

spirit of freedom for religious organizations, an

independence from secular control or manipulation, in

short, power to decide for themselves, free from state

interference, matters of church government as well as

those of faith and doctrine”). Decisions about what a

particular faith requires of its schools and the

education of young faithful are for religious entities or

spiritual leaders to decide; the government may not

“‘troll[ ] through the beliefs of’” a religious school,

“making determinations about its religious mission.”

Duquesne Univ. of the Holy Spirit v. NLRB, 947 F.3d

824, 835 (D.C. Cir. 2020); accord Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. EEOC, 565

U.S. 171, 188–89 (2012) (“Establishment Clause …

prohibits government involvement in … ecclesiastical

decisions”).

To avoid the obvious entanglement in religious

affairs caused by Maine’s scheme, the State says that

most schools self-identify as sectarian and that

religious schools do not ordinarily seek funding. Pet.

App. 57–58. This is unsurprising given that Maine’s

statute discriminates on its face against religious

schools by requiring that schools be “nonsectarian” to

qualify. But when a religiously affiliated school does

apply for tuition benefits, the State admittedly must

wade into its curriculum, assessing whether the school

promotes a “faith or belief system” or “presents the



23

material taught through the lens of … faith.” Pet.

App. 35. That is unconstitutional.

In short, a regime like Maine’s that categorizes

schools by their level of perceived religiosity violates

these basic principles of religious freedom and runs

afoul of the Establishment Clause.

III. The lower court’s rationalizations

Maine’s

discriminatory

regime

misguided.

for

are

The First Circuit dismissed these First Amendment concerns, concluding that Maine is permissibly

“ensuring the educational instruction provided by an

applicant will mirror the secular educational

instruction provided at Maine’s public schools.” Pet.

App. 58. That reasoning fails.

For one, this rationale ignores that “[t]he State

contributes no money to the schools,” but rather “does

no more than provide a general program to help

parents,” Everson, 330 U.S. at 18, to enroll their

children in the school that best meets their needs in

districts where no public option is available.

More fundamentally, this analysis ignores that

Maine has already concluded that religious schools

that satisfy its compulsory-attendance requirements

are permissible alternatives to public education.

Maine requires all schools to “meet the requirements

for basic school approval—and thus the state’s

compulsory school attendance requirements”—and to

employ only certified teachers. Pet. App. 7; Me. Stat.

tit. 20-A, §§ 2901–2902 (“[p]rivate schools approved for

attendance purposes” must “[p]rovide instruction in

the basic curriculum established by … the

commissioner” of department of education, and



24

“[e]mploy only certified teachers”). Despite treating

religious private schools as substitutes for public

schools, the State wants to punish parents for sending

their children to those schools if they act religious—or

at least act too religious. And the First Circuit agreed,

insinuating that adding religious components to an

otherwise first-rate secular education makes that

education worse from the State’s perspective. See Pet.

App. 44 (calling religious schools not “a good substitute

for a public school education” (emphasis omitted)).

That makes no sense: Excluding a school that

teaches religious studies in addition to the required

basic curriculum is no more constitutionally permissible than excluding a school because of its religious

“status” or affiliation. In either case, the school is

performing the task that the subsidy is designed to

accomplish: providing the equivalent of a public

education. Religious conduct or religious affiliation

are both separate layers on top of the subsidized

service. Unless the State is motivated by antireligious animus—which would itself be a basis for

invalidation, Masterpiece Cakeshop, Ltd. v. Colo. Civ.

Rights Comm’n, 138 S. Ct. 1719, 1731–32 (2018)—it

should not matter whether parents choose to send

their children to a fully accredited school that also

prioritizes Judaism, includes prayer, teaches the

Talmud, or offers kosher food.

Further, the court below failed to distinguish a

program that offers only public (and thus secular)

educational options from one that provides tuition

assistance for parents to choose among private schools

for their children. Cf. Pet. App. 59 (“[A]ny family in

Maine that prefers a sectarian education for their

children to the secular one Maine provides as a public



25

option can pay the tuition for their child to receive

such an education.”). To be sure, a state that provides

public education with no private tuition subsidies may

not be constitutionally obligated to subsidize tuition

for religious schools. Cf. Everson, 330 U.S. at 16

(“[W]e do not mean to intimate that a state could not

provide transportation only to children attending

public schools[.]”). But a state that chooses to

subsidize private schools (and some religious ones)

may not exclude other religious schools for being too

religious. See id. at 16, 18 (state “cannot exclude

individual Catholics, Lutherans, Mohammedans,

Baptists,

Jews,

Methodists,

Non-believers,

Presbyterians, or the members of any other faith,

because of their faith, or lack of it, from receiving the

benefits of public welfare legislation” because the First

“Amendment requires the state to be a neutral in its

relations with groups of religious believers and nonbelievers”). It is unconstitutional to “reserve special

hostility for those who take their religion seriously,

who think that their religion should affect the whole

of their lives, or who make the mistake of being

effective in transmitting their views to children.”

Mitchell v. Helms, 530 U.S. 793, 827–28 (2000)

(plurality).

Ironically, the court below framed its decision to

uphold the Maine regime as avoiding entanglement

with religious matters. Pet. App. 56–59. But what the

Maine program does is discriminate both against and

between religions. It facially prefers non-religious

schools over religious ones, and in application, favors

religions that do not require adherents to saturate

their lives (and education) with their faith over those

that do. Further, the State forces unconstitutionally

intrusive inquiries into the nature of a school’s



26

religious practices and how they stack up on a

subjective spectrum of sectarianism.

Far from

avoiding entanglement, the Maine scheme requires it.

See Part II.B, above.

CONCLUSION

This Court should reject the distinction between

discrimination based on religious conduct and

discrimination based on religious status, which is

especially harmful for Orthodox Jewish schools.

Respectfully submitted,

YAAKOV M. ROTH

ANTHONY J. DICK

MEREDITH HOLLAND

KESSLER

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

SEPTEMBER 2021



KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

ERIN MORROW HAWLEY

ALLIANCE DEFENDING

FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org