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

Supreme Court briefSep 10, 2021

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No. 20-1088

In the

Supreme Court of the United States

DAVID and AMY CARSON, as parents

and next friend of O.C., et al.,

Petitioners,

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 AMICI CURIAE CONCERNED

WOMEN FOR AMERICA, THE

CONGRESSIONAL PRAYER CAUCUS

FOUNDATION, THE FAMILY FOUNDATION,

ILLINOIS FAMILY INSTITUTE,

INTERNATIONAL CONFERENCE OF

EVANGELICAL CHAPLAIN ENDORSERS, THE

NATIONAL LEGAL FOUNDATION, AND

PACIFIC JUSTICE INSTITUTE

in Support of Petitioners

Steven W. Fitschen

James A. Davids

The National Legal

Foundation

524 Johnstown Road

Chesapeake, Va. 23322

Frederick W. Claybrook, Jr.

Counsel of Record

Claybrook LLC

700 Sixth St., NW, Ste. 430

Washington, D.C. 20001

(202) 250-3833

rick@claybrooklaw.com

(i)

TABLE OF CONTENTS

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

INTERESTS OF THE AMICI CURIAE...................... 1

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

ARGUMENT.................................................................. 4

Mitchell v. Helms Began This Court’s

Retreat from Disqualifying Religious

Institutions from Receipt of Governmental

Benefits Due to Their Pervasively Sectarian

Religious Exercise .................................................. 5

II. The Pervasively Sectarian Test Was Further

Eroded by Decisions Explaining That

Private Choices Determining the Recipient

of Generally Available Public Funds

Eliminate the Applicability of the

Establishment Clause ......................................... 12

III. Trinity Lutheran and Espinoza Further

Eroded the Pervasively Sectarian Test .............. 18

IV. This Court Should Also Reject the

Pervasively Sectarian Test in the Context of

a Religious School’s Use of Generally

Available Benefits ................................................ 19

CONCLUSION ............................................................ 25

(ii)

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ...........7, 8-9,13

Aguilar v. Felton, 473 U.S. 402 (1985), overruled,

Agostini v. Felton, 521 U.S. 203 (1997) ................... 8

Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen,

392 U. S. 236 (1968) ................................................ 12

Bowen v. Kendrick, 487 U.S. 589 (1988) ..................... 8

Bradfield v. Roberts, 175 U.S. 291 (1899) .............. 6, 10

Carson v. Makin, 979 F.3d 21 (1st Cir. 2020)..... ......19

Colorado Christian Univ. v. Weaver,

534 F.3d 1245 (10th Cir. 2008)............................... 22

Comm. for Pub. Ed. v. Nyquist,

413 U.S. 756 (1973) ................................................... 8

Comm. for Pub. Educ. & Religious Liberty v.

Regan, 444 U.S. 646 (1980) ...................................... 8

Corp. of Presiding Bishop v. Amos,

483 U.S. 327 (1987) ................................................. 14

Cnty. of Allegheny v. ACLU of Pittsburgh,

492 U.S. 573 (1989) ................................................ 24

Espinoza v. Mont. Dept. of Rev.,

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

(iii)

Everson v. Board of Education, 330 U.S. 1 (1947) ..5, 7

Hunt v. McNair, 413 U.S. 734 (1973) .......................... 8

Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in N. Am., 344 U.S. 94 (1952) .. 22

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384 (1993) ....................................... 11

Larson v. Valente, 456 U.S. 228 (1982) ..................... 23

Lemon v. Kurtzman, 403 U.S. 602 (1971) ...................8

Lynch v. Donnelly, 465 U.S. 668, 687 (1984) ............ 24

Meek v. Pittenger, 421 U.S. 349 (1975) .................... 7, 8

Mitchell v. Helms, 530 U.S. 793 (2000) ............. passim

Mueller v. Allen, 463 U.S. 388 (1983) ................ passim

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)............ 25

Roemer v. Bd. of Pub. Works of Md.,

426 U.S. 736 (1976) ............................................... 7, 8

Rosenberger v. Rector and Visitors of Univ.

of Va., 515 U.S. 819 (1995) ............................... 11, 13

Sch. Dist. of Grand Rapids v. Ball,

473 U.S. 373 (1985), overruled, Agostini v.

Felton, 521 U.S. 203 (1997) .................................. 7, 8

(iv)

Serbian E. Orthodox Diocese for the U.S. & Can.

v.Milivojevich, 426 U.S. 696 (1976) ...................... 22

Trinity Lutheran Church of Columbia, Inc. v.

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

Troxel v. Granville, 530 U.S. 57 (2000) ..................... 25

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871) ........ 22

Widmar v. Vincent, 454 U.S. 263 (1981) ............. 10, 14

Witters v. Wash. Dept. of Servs. for Blind,

474 U. S. 481 (1986) ................................8, 14, 15, 17

Wolman v. Walter, 433 U.S. 229 (1977), overruled,

Mitchell v. Helms, 530 U.S. 793 (2000) ................... 8

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ......................................... passim

Zobrest v. Catalina Foothills Sch. Dist.,

509 U. S. 1 (1993) ............................................ passim

Statutes

Me. Stat., tit. 20-A, § 2951(2) ..................................... 20

Other Authorities

James A. Davids, Pounding a Final Stake in the

Heart of the Invidiously Discriminatory

“Pervasively Sectarian” Test, 7 Ave Maria L.

Rev. 59 (2008) ............................................................ 8

(v)

Michael W. McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115 (1992) .............. 4

INTERESTS OF THE AMICI CURIAE1

Concerned Women for America (CWA) is the

largest public policy organization for women in the

United States, with approximately half a million

supporters from all 50 States. Through its grassroots

organization, CWA encourages policies that

strengthen women and families and advocates for the

traditional virtues that are central to America’s

cultural health and welfare, including religious

liberties. CWA actively promotes legislation,

education, and policymaking consistent with its

philosophy. Its members are people whose voices are

often overlooked—everyday, middle-class American

women whose views are not represented by the

powerful elite.

The

Congressional

Prayer

Caucus

Foundation (CPCF) is an organization established to

protect religious freedoms (including those related to

America’s Judeo-Christian heritage) and to promote

prayer (including as it has traditionally been

exercised in Congress and other public places). It is

independent of, but traces its roots to, the

Congressional Prayer Caucus that currently has over

100 representatives and senators associated with it.

CPCF has a deep interest in the right of people of faith

to speak, freely exercise their religion, and assemble

as they see fit, without government censorship or

coercion. CPCF reaches across all denominational,

1 The parties have consented to the filing of this brief in

writing. No counsel for any party authored this brief in

whole or in part. No person or entity other than Amicus

made a monetary contribution intended to fund the

preparation or submission of this brief.

socioeconomic, political, racial, and cultural dividing

lines. It has an associated national network of

citizens, legislators, pastors, business owners, and

opinion leaders hailing from forty-one states.

The Family Foundation (TFF) is a Virginia nonpartisan, non-profit organization committed to

promoting strong family values and defending the

sanctity of human life in Virginia through its citizen

advocacy and education. TFF serves as the largest

pro-family advocacy organization in Virginia, and its

interest in this case is derived directly from its

members throughout Virginia who seek to advance a

culture in which children are valued, religious liberty

thrives, and marriage and families flourish.

The Illinois Family Institute (IFI) is a nonprofit

educational and lobbying organization based in Tinley

Park, Illinois, that exists to advance life, faith, family,

and religious freedom in public policy and culture

from a Christian worldview. A core value of IFI is to

uphold religious freedom and conscience rights for all

individuals and organizations.

The International Conference of Evangelical

Chaplain Endorsers (ICECE) has as its main

function to endorse chaplains to the military and other

organizations requiring chaplains that do not have a

denominational structure to do so, avoiding the

entanglement with religion that the government

would otherwise have if it determined chaplain

endorsements. ICECE safeguards religious liberty for

all.

The National Legal Foundation (NLF) is a

public interest law firm dedicated to the defense of

First Amendment liberties and the restoration of the

moral and religious foundation on which America was

built. The NLF and its donors and supporters,

including those in Maine, seek to ensure that the free

exercise of religion is protected in all places.

The Pacific Justice Institute (PJI) is a nonprofit legal organization established under section

501(c)(3) of the Internal Revenue Code. Since its

founding in 1997, PJI has advised and represented in

court and administrative proceedings thousands of

individuals, businesses, and religious institutions,

particularly in the realm of First Amendment rights.

As such, PJI has a strong interest in the development

of the law in this area. PJI often represents religious

organizations whose congregations wish to worship

consistently with their religious beliefs and without

unconstitutional, discriminatory restrictions.

SUMMARY OF THE ARGUMENT

This Court should settle the status/use question it

left for future consideration in Trinity Lutheran2 and

Espinoza3 by recognizing that the Free Exercise

Clause requires—and the Establishment Clause does

not prohibit—a “pervasively sectarian” school to be

able not just to attain, but also to use, a generally

applicable public benefit, particularly when private

individuals, exercising their independent choices,

decide on whom that benefit ultimately is bestowed.

In the process, this Court should overrule its decisions

2 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137

S. Ct. 2012, 2024 n.3 (2017).

3 Espinoza v. Mont. Dept. of Rev., 140 S. Ct. 2246, 2256-57

(2020).

to the extent they articulate a “pervasively sectarian”

analysis.

ARGUMENT

Thirty years ago, Professor Michael McConnell

described this Court’s Religion Clauses jurisprudence,

including that related to government benefits that

directly or indirectly benefitted schools operated by

religious organizations, as a “mess”:

With [Religion Clauses] doctrine in such chaos,

the Warren and Burger Courts were free to

reach almost any result in almost any case.

Thus, as of today, it is constitutional . . . for the

government to give money to religiouslyaffiliated organizations to teach adolescents

about proper sexual behavior, but not to teach

them science or history. It is constitutional for

the government to provide religious school

pupils with books, but not with maps; with bus

rides to religious schools, but not from school to

a museum on a field trip; with cash to pay for

state-mandated standardized tests, but not to

pay for safety-related maintenance. It is a

mess.4

The main reason for the confusion was this Court’s

pitting the Establishment Clause against the Free

Exercise Clause. It (wrongly) thought the

Establishment Clause foreclosed schools deemed by

Michael W. McConnell, Religious Freedom at a

Crossroads, 59 U. Chi. L. Rev. 115, 119–20 (1992)

(footnotes omitted).

government officials to be “pervasively sectarian”

from enjoying government benefits available to others

even though a religious school teaching its precepts

and worldview “pervasively” is a prototypical example

of the free exercise of religion.

A plurality in Mitchell v. Helms,5 aptly criticized

the “pervasively sectarian” case law, and this case

demonstrates the wisdom of those critiques. This

Court further eroded the “pervasively sectarian”

rationale in its decisions recognizing that the

Establishment Clause is not implicated when private

individuals make the decision to where public benefits

go. Most recently, this Court in Trinity Lutheran and

Espinoza reaffirmed that the Establishment Clause

provides no defense when the government violates the

Free Exercise Clause by refusing to grant a generally

available benefit to a religious organization simply

because it is religious. This Court should take the next

logical step by embracing the reasoning of the

plurality decision in Mitchell, overruling its

“pervasively sectarian” case law, and affirming that

the Free Exercise Clause prohibits governments from

depriving religious institutions of a generally

available public benefit because of the organization’s

religious practices.

Mitchell v. Helms Began This Court’s

Retreat from Disqualifying Religious

Institutions

from

Receipt

Governmental Benefits Due to Their

Pervasively Sectarian Religious Exercise

Prior to the 1947 decision in Everson that

5 530 U.S. 793 (2000).

incorporated the Establishment Clause, this Court

rarely had occasion to consider the constitutionality of

federal funding of religious organizations. But one

such occasion was Bradfield v. Roberts,6 an

Establishment Clause challenge to a federal

appropriation for healthcare given to a Roman

Catholic hospital, incorporated by an act of Congress,

for the construction of a facility for indigents. In a

unanimous decision, this Court noted that both the

hospital’s incorporating charter and Congress’s

appropriation served secular purposes and, thus, held

that the Establishment Clause was not offended

because the funds would go to, and be used by, a

hospital owned and managed a religious institution:

Whether the individuals who compose the

corporation under its charter happen to be all

Roman Catholics, or all Methodists, or

Presbyterians, or Unitarians, or members of

any other religious organization, or of no

organization at all, is of not the slightest

consequence with reference to the law of its

incorporation, nor can the individual beliefs

upon religious matters of the various

incorporators be inquired into. Nor is it

material that the hospital may be conducted

under the auspices of the Roman Catholic

Church . . . [that] exercises great and perhaps

controlling influence over the management of

the hospital.7

6 175 U.S. 291 (1899).

7 Id. at 298. This Court went on to explain that issuing

charters of incorporation to corporations managed by

religious bodies does not raise an Establishment Clause

In 1947, this Court in Everson v. Board of

Education,8 while broadening coverage of the

Establishment Clause to apply it to the states,

approved public funding for transportation of children

to religious schools, including ones that later Courts

would have deemed to be “pervasively sectarian.” It

thereby reinforced that the Establishment Clause

does not prohibit government from granting generally

available public benefits to religious organizations

due to their status.9 The Everson Court emphasized

that the First Amendment “does not require the state

to be the[ ] adversary” of religious organizations,10 but

its dicta that “[n]o tax in any amount, large or small,

can be levied to support any religious activities or

institutions, whatever they may be called, or whatever

form they may adopt to teach or practice religion”11 led

later Courts to the “pervasively sectarian” test that

caused the “mess” cited by Professor McConnell

above.12

For the next several decades, this Court intruded

into the affairs of sincerely religious schools to

determine their eligibility for public funding. For

example, finding it necessary to examine the

issue, as the charters are available to all on a non-religious

basis. Id.

8 330 U.S. 1 (1947).

9 Id. at 16.

10 Id. at 18.

11 Id. at 16.

12 See, e.g., Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373,

381 (1985) (quoting the Everson passage), overruled,

Agostini v. Felton, 521 U.S. 203 (1997); see also Roemer v.

Bd. of Pub. Works of Md., 426 U.S. 736 (1976); Meek v.

Pittenger, 421 U.S. 349 (1975).

character and purpose of Roman Catholic schools that

benefitted from a public program, Chief Justice

Burger in Lemon v. Kurtzman,13 examined the

proximity between the churches and the religious

schools, the religious symbols in the school buildings,

the time spent daily in direct religious instruction, the

clerical nature of the teachers (two-thirds of the

teachers in the parochial schools were nuns), the

“atmosphere” of the school, and the school’s

governance.14

These areas of inquiry were changed and expanded

in other cases,15 but one thing remained constant—

13 403 U.S. 602 (1971).

14 Id. at 615-18. In applying the newly formulated Lemon

test, the Court determined that giving aid to the Roman

Catholic schools in Rhode Island with this level of control

would result in “excessive entanglement.” Id. at 619-20.

15 See James A. Davids, Pounding a Final Stake in the

Heart of the Invidiously Discriminatory “Pervasively

Sectarian” Test, 7 Ave Maria L. Rev. 59 (2008), for a

chronology of the “pervasively sectarian” cases. They

include, in addition to Lemon, the following: Hunt v.

McNair, 413 U.S. 734 (1973); Comm. for Pub. Ed. v.

Nyquist, 413 U.S. 756 (1973); Meek v. Pittenger, 421 U.S.

349 (1975); Roemer v. Bd. of Pub. Works, 426 U.S. 736

(1976); Wolman v. Walter, 433 U.S. 229 (1977), overruled,

Mitchell v. Helms, 530 U.S. 793 (2000); Comm. for Pub.

Educ. & Religious Liberty v. Regan, 444 U.S. 646 (1980);

Mueller v. Allen, 463 U.S. 388 (1983); Aguilar v. Felton, 473

U.S. 402 (1985), overruled, Agostini v. Felton, 521 U.S. 203

(1997); Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373

(1985), overruled, Agostini v. Felton, 521 U.S. 203 (1997);

Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481

(1986); Bowen v. Kendrick, 487 U.S. 589 (1988); Zobrest v.

Catalina Foothills Sch Dist., 509 U.S. 1 (1993); Agostini v.

the public schools were never subjected to the type of

examination routinely imposed on religious schools.

There may have been financial audits to ensure that

both public and religious schools actually bought

computers as required by the government grant, but

while computers were physically audited to ensure no

religious material was being accessed on the

computers at a sectarian school, as in Mitchell,16 there

is no record that audits were conducted of public

school computers to ensure that students did not

access objectionable porn sites or that lessons were

not being taught from an anti-religious slant.

This Court began to back away from its

“pervasively secular” test in Mitchell. The plurality

opinion (written by Justice Thomas and joined by

Chief Justice Rehnquist and Justices Kennedy and

Scalia) expressly repudiated it, for four distinct

reasons.

First, the plurarlity observed that “the religious

nature of a recipient should not matter to the

constitutional analysis, so long as the recipient

adequately furthers the government’s secular

purpose.”17 It noted, “If a program offers permissible

aid to the religious (including the pervasively

sectarian), the areligious, and the irreligious, it is a

mystery which view of religion the government has

established, and thus a mystery what the

Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793

(2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

16 See Mitchell, 530 U.S. at 862-63 (O’Connor, J.,

concurring).

17 Id. at 827.

constitutional violation would be.”18

This is eminently logical. If the government

institutes a grant program to stimulate literacy for

which both public and private schools compete but it

then disqualifies a yeshiva because it is “pervasively

sectarian,” it manifests “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.”19 Although the plurality did

not express this concept as embedded in the Free

Exercise Clause,20 that is where it resides: seriously

religious schools were suffering discriminatory

treatment precisely because of their exercise of their

religion.

Second, the Mitchell plurality noted that the

inquiry into the practice of religious schools deemed

pervasively sectarian “was not only unnecessary but

also offensive.”21 Implicitly invoking the church

autonomy doctrine, they deemed “well established”

the principle that “courts should refrain from trolling

through a person’s or institution’s religious beliefs,”

an analysis required under the pervasively sectarian

test and “profoundly troubling.”22 Combining its first

two points, the plurality wrote that the use of the

pervasively sectarian test collided with “our decisions

that

have

prohibited

governments

from

18 Id.; see Bradfield, 175 U.S. at 298.

19 530 U.S. at 827-28.

20 But see id. at 868 (Souter, J., dissenting) (recognizing the

free exercise dimension).

21 Id. at 828.

22 Id.

discriminating in the distribution of public benefits

based upon religious status or sincerity.”23

Third, the Mitchell plurality discussed briefly the

deplorable history that undergirds the pervasively

sectarian test.24 It noted, for instance, the antiCatholic bias that led to the near passage of the

federal Blaine Amendment, which would have

deprived public aid to sectarian (“code” for Catholic)

schools.25 The plurality concluded, “In short, nothing

in the Establishment Clause requires the exclusion of

pervasively sectarian schools from otherwise

permissible aid programs, and other doctrines of this

Court bar it. This doctrine, born of bigotry, should be

buried now.”26

Fourth, the Mitchell plurality responded to the

worry of Justice Souter in dissent that the

23 Id. at 828 (citing Rosenberger v. Rector and Visitors of

Univ. of Va., 515 U.S. 819 (1995); Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384 (1993);

Widmar v. Vincent, 454 U.S. 263 (1981)). Of course, Trinity

Lutheran and Espinoza fully support the “status” prong of

the plurality’s statement. See Trinity Lutheran, 137 S. Ct.

at 2019-25; Espinoza, 140 S. Ct. at 2053-57.

24 530 U.S. at 828-29.

25 Id. The plurality pointed out that Justice Souter almost

exclusively referred to Catholic schools in the portion of his

Mitchell dissent devoted to the pervasively sectarian test,

exemplifying the Court’s almost exclusive application of

the test to Catholic schools. Id. at 829. Justice Alito

provided a more detailed discussion on the anti-Catholic

bias of the Blaine Amendment and its state-level

counterparts in his concurrence in Espinoza. 140 S. Ct. at

2267-74 (Alito, J., concurring).

26 530 U.S. at 829.

government aid could be diverted by the religious

schools to impermissible (i.e., pervasively sectarian)

uses.27 The plurality stated, “So long as the

governmental aid is not itself ‘unsuitable for use in the

public schools because of religious content’ and

eligibility for aid is determined in a constitutionally

permissible manner, any use of that aid to

indoctrinate cannot be attributed to the government

and is thus not of constitutional concern.”28 It labeled

a rule that disallowed aid because it was “divertible”

to religious purposes to be “unworkable.” 29

II.

The Pervasively Sectarian Test Was

Further Eroded by Decisions Explaining

That Private Choices Determining the

Recipient of Generally Available Public

Funds Eliminate the Applicability of the

Establishment Clause

Another series of this Court’s decisions also eroded

the (supposed) Establishment Clause underpinnings

of the pervasively sectarian test. Those cases assume

generally available government aid, if distributed to

religious insitutions, may well be used for religious

purposes without implicating the Establishment

Clause because private parties, by their independent

choices, directed the aid to the institution. These

personal, independent choices break the causal chain

27 Id. at 890-95 (Souter, J. dissenting).

28 Id. at 818-20 (citing Bd. of Educ. of Cent. Sch. Dist. No.

1 v. Allen, 392 U. S. 236, 245 (1968)). The aid in Mitchell

was money for computers, computer software, and library

books. Id. at 802. The government program providing this

aid required that the items be secular, id., and there was

no challenge to that in Mitchell.

29 Id. at 820.

between the state and the religious school.

This Court explained this case law in some detail

in Zelman v. Simmons-Harris.30 Zelman concerned a

multifaceted plan by the Cleveland school system that

included providing scholarship assistance to allow

parents to send their children to private schools. That

part of the plan was attached because many of the

schools selected by parents to receive public aid were

“pervasively sectarian.”

This Court rebuffed the Establishment Clause

challenge to the plan. By reviewing in particular three

precedents that are also directly relevant here, this

Court emphasized that, when it comes to the Federal

Constitution, there is a critical difference between

government particularly directing expenditures to

religious institutions for religious purposes and

systems in which private choice determines where

generally available funds are spent:

[O]ur decisions have drawn a consistent

distinction between government programs that

provide aid directly to religious schools,

Mitchell v. Helms, 530 U.S. 793, 810-814 (2000)

(plurality opinion); id., at 841-844 (O’Connor,

J., concurring in judgment); Agostini [v. Felton,

521 U.S. 203 (1997)], supra, at 225-227;

Rosenberger v. Rector and Visitors of Univ. of

Va., 515 U.S. 819, 842 (1995) (collecting cases),

and programs of true private choice, in which

government aid reaches religious schools only

30 536 U.S. 639 (2002). This Court in Agostini v. Felton, 521

U.S. at 225-32, also recognized that cases in this series

undercut the “pervasively sectarian” test.

as a result of the genuine and independent

choices of private individuals, Mueller v. Allen,

463 U.S. 388 (1983); Witters v. Wash. Dept. of

Servs. for Blind, 474 U.S. 481 (1986); Zobrest v.

Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

. . . Three times we have confronted

Establishment Clause challenges to neutral

government programs that provide aid directly

to a broad class of individuals, who, in turn,

direct the aid to religious schools or institutions

of their own choosing. Three times we have

rejected such challenges.31

The Court went on to explain that, in

Mueller, we rejected an Establishment Clause

challenge to a Minnesota program authorizing

tax deductions for various educational

expenses, including private school tuition costs,

even though the great majority of the program’s

beneficiaries (96%) were parents of children in

religious schools. . . . [V]iewing the program as

a whole, we emphasized the principle of private

choice, noting that public funds were made

available to religious schools “only as a result of

numerous, private choices of individual parents

of school-age children.” 463 U.S., at 399-400.

This, we said, ensured that “no ‘imprimatur of

state approval’ can be deemed to have been

conferred on any particular religion, or on

religion generally.” Id., at 399 (quoting Widmar

31 536 U.S. at 649; cf. Corp. of Presiding Bishop v. Amos,

483 U.S. 327, 337 (1987) (“A law is not unconstitutional

simply because it allows churches to advance religion,

which is their very purpose.”).

[v. Vincent, 454 U.S. 263 (1981)], supra, at

274). We thus found it irrelevant to the

constitutional inquiry that the vast majority of

beneficiaries were parents of children in

religious schools . . . . 463 U.S., at 401. That the

program was one of true private choice, with no

evidence that the State deliberately skewed

incentives toward religious schools, was

sufficient for the program to survive scrutiny

under the Establishment Clause. 32

The Zelman Court next discussed its prior decision

in Witters, in which the Court

used identical reasoning to reject an

Establishment Clause challenge to a vocational

scholarship program that provided tuition aid

to a student studying at a religious institution

to become a pastor. Looking at the program as

a whole, we observed that “[a]ny aid . . .

that ultimately flows to religious institutions

does so only as a result of the genuinely

independent and private choices of aid

recipients.” 474 U.S., at 487. We further

remarked that, as in Mueller, “[the]

program

made

available generally

without

regard

the

sectariannonsectarian, or public-nonpublic nature of the

institution benefited.” 474 U.S., at 487 (internal

quotation marks omitted). In light of these

factors, we held that the program was not

inconsistent with the Establishment Clause.

Id., at 488-489.

32 536 U.S. at 649-50.

Five Members of the Court, in separate

opinions, emphasized the general rule from

Mueller that the amount of government aid

channeled to religious institutions by

individual aid recipients was not relevant to the

constitutional inquiry. 474 U.S., at 490-491

(Powell, J., joined by Burger, C.J., and

Rehnquist, J., concurring) (citing Mueller,

supra, at 398-399); 474 U.S., at 493 (O’Connor,

J., concurring in part and concurring in

judgment); id., at 490 (White, J., concurring).

Our holding thus rested not on whether few or

many recipients chose to expend government

aid at a religious school but, rather, on whether

recipients generally were empowered to direct

the aid to schools or institutions of their own

choosing.33

Third, the Zelman Court explicated its ruling in

Zobrest, in which it rejected an Establishment Clause

challenge to a federal program that permitted signlanguage interpreters to assist deaf children enrolled

in religious schools:

We further observed that “[b]y according

parents freedom to select a school of their

choice, the statute ensures that a governmentpaid interpreter will be present in a sectarian

school only as a result of the private decision of

individual parents.” [509 U.S.] at 10. Our focus

again was on neutrality and the principle of

private choice, not on the number of program

beneficiaries attending religious schools. Id., at

10-11. . . . Because the program ensured that

33 Id. at 650-51.

parents were the ones to select a religious

school as the best learning environment for

their handicapped child, the circuit between

government and religion was broken, and the

Establishment Clause was not implicated.34

The Zelman Court summed up the holdings of

those cases as follows:

Mueller, Witters, and Zobrest thus make clear

that where a government aid program is

neutral with respect to religion, and provides

assistance directly to a broad class of citizens

who, in turn, direct government aid to religious

schools wholly as a result of their own genuine

and independent private choice, the program is

not readily subject to challenge under the

Establishment Clause. A program that shares

these features permits government aid to reach

religious institutions only by way of the

deliberate choices of numerous individual

recipients. The incidental advancement of a

religious mission, or the perceived endorsement

of a religious message, is reasonably

attributable to the individual recipient, not to

the government, whose role ends with the

disbursement of benefits.35

In short, no Establishment Clause claim lies when

“pervasively secular” schools receive generally

available public aid through the selection of parents of

the schools attended by their children.

34 Id. at 651-52.

35 Id. at 652.

III.

Trinity Lutheran and Espinoza Further

Eroded the Pervasively Sectarian Test

Two decades later, in Trinity Lutheran Church,

this Court firmly rejected Justice Souter’s reasoning

in his Mitchell dissent. Instead of the Establishment

Clause forbidding an evenhanded application of

governmental benefits to a pervasively sectarian

school, this Court held that the Free Exercise Clause

prohibits the government from discriminating against

church schools solely because of their religious

status.36

Similarly, in Espinoza this Court found that

denying religious schools participation in a generally

applicable, public scholarship program because of

their religious status violated the Free Exercise

Clause.37 Montana asserted that it was not

discriminating against the religious schools because of

their status as religious institutions, but because of

their use of public funds for religious education (i.e.,

because they were “pervasively sectarian”).38 The

state claimed that the “no-aid provision has the goal

or effect of ensuring that government aid does not end

up being used for ‘sectarian education’ or ‘religious

education,’” noting that it could be used for religious

ends by “schools that believe faith should ‘permeate[]’

everything they do.”39 Rejecting this argument, this

Court noted that the Montana Supreme Court had

repeatedly held that the state’s Blaine Amendment

barred aid based on status and that this required a

36 137 S.Ct. at 2019-25.

37 140 S. Ct. at 2256.

38 140 S. Ct. at 2255-57.

39 Id. at 2256 (emphasis in original).

school to remove itself from any religious control to

become eligible for the scholarship program. 40 Placing

a condition on benefits deters the exercise of First

Amendment rights and subjects the status-based

discrimination to “the strictest scrutiny.” 41

IV.

This Court Should Also Reject the

Pervasively Sectarian Test in the Context

of a Religious School’s Use of Generally

Available Benefits

This Court in Espinoza and Trinity Lutheran

reserved the “use vs. status” issue.42 The present case,

involving as it does the eligibility of a religious school

for receipt of public funds for tuition through the

independent choice of parents, directly presents the

issue of whether discrimination based on religious

activity can be tolerated under the Free Exercise

Clause. Indeed, the First Circuit, with Justice Souter

sitting on the panel, distinguished Trinity Lutheran

and Espinoza on exactly that basis, with the

status/exercise distinction forming the ratio decidendi

of the circuit court.43

The Maine statute, as administered, brings to the

fore the issue of whether a school that has a

pervasively

sectarian

curriculum

may

constitutionally be denied participation in the

program. It requires private schools, to qualify for

40 Id.

41 Id. at 2256-57 (quoting Trinity Lutheran, 137 S. Ct. at

2022).

42 See id. at 2257; Trinity Lutheran, 137 S. Ct. at 2024 n.3.

43 Carson v. Makin, 979 F.3d 21, 40-45 (1st Cir. 2020)

(emphasis in original).

scholarship money, even though received through

parental choice, to be “nonsectarian in accordance

with the First Amendment,”44 an obvious attempt to

adopt this Court’s eroded “pervasively sectarian” case

law. Moreover, the authorized Maine official in

interrogatory responses interpreted the quoted

phrase, in essence, to adopt that case law, stating,

[T]he Department considers 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. While affiliation or

association with a church or religious

institution is one potential indicator of a

sectarian school, it is not dispositive. The

Department’s focus is on what the school teaches

through its curriculum and related activities,

and how the material is presented.45

That is, Maine ties eligibility directly to how a

sectarian school practices its faith and belief system.

A religious school is eligible, despite its sectarian

status, if it does not teach religion in a proselytizing

manner or does not teach subjects through the “lens of

faith.” But, presumably, if a religious school

introduces a math course by instructing students that

math reflects the orderliness of God’s creation or if it

teaches in a civics class that the separation of powers

in the Constitution is consistent with the Christian

44 Me. Stat., tit. 20-A, § 2951(2).

45 Carson, 979 F.3d at 38.

doctrine of the Fall by not placing too much power in

one or a few individuals, then that school is ineligible.

Disqualifying an organization from an otherwise

generally applicable government benefit because of its

exercise of its religion violates the Free Exercise

Clause; it is hard to see how any other conclusion

could be drawn. This Court’s case law should once

again make clear that governments may not

discriminate against a religious institution solely

because it practices its religion, which is another way

of stating that it is religious, i.e., has a religious

status.

Review and application of the four objections to the

“pervasively sectarian” test articulated by the

plurality in Mitchell show why this is so. First, the

Mitchell plurality instructs that, if the government

program is motivated by a valid, secular purpose, it is

irrelevant that some (or all) of the beneficiaries might

happen to be religious and wrong to discriminate

against them because of how they practice their

faith.46 Here, Maine has a valid, secular purpose of

educating its children, particularly in areas in which

no public schools exist. It is not singling out for special

treatment religious schools, and that works both

ways: it may not favor religious schools, but it also

may not disfavor religious schools.

Second, the Mitchell plurality noted that, to

determine whether a particular school is “pervasively

sectarian,” government officials, including judicial

officers, must probe into the religious beliefs and

practices of a particular institution, violating the

46 530 U.S. at 827-28.

church autonomy doctrine.47 That is exactly what

Maine has done here. It is not just the status of a

school as purportedly religious that disqualifies the

school; a further inquiry is necessary to determine

how rigorously it puts its faith into use. This quickly

leads to hair-splitting by government officials that

predictably leads to the benefit of some religious

institutions over others.

A good example of this playing out was provided by

Colorado Christian University v. Weaver.48 That case

involved a state scholarship program that granted

scholarships to college students who attended in-state

schools, public or private. However, as in the Maine

program, to be eligible for the program, a Colorado

school could not be “pervasively sectarian.” Colorado

officials determined, after looking at their curricula,

faculty, and other practices, that two religious schools

(a Roman Catholic college run by the Jesuits and a

Methodist institution) were not pervasively sectarian,

and, thus, eligible, but that CCU was ineligible

because it was.49 The state officials found dispositive

that CCU’s theology courses impermissibly “tend[ed]

to indoctrinate or proselytize,” that CCU’s trustees

were limited to one religion (Christianity), and that

CCU required some of its students to attend chapel.50

47 Id. at 528; see generally Serbian E. Orthodox Diocese for

the U.S. & Can. v. Milivojevich, 426 U.S. 696, 713 (1976);

Presbyterian Church in the U.S. v. Mary Elizabeth Blue

Hull Mem’l Presbyterian Church, 393 U.S. 440, 449

(1969); Kedroff v. St. Nicholas Cathedral of Russian

Orthodox Church in N. Am., 344 U.S. 94, 116 (1952);

Watson v. Jones, 80 U.S. (13 Wall.) 679, 727 (1871).

48 534 F.3d 1245 (10th Cir. 2008).

49 Id. at 1258.

50 Id. at 1253.

The Tenth Circuit, relying on the Mitchell

plurality opinion, found this intrusiveness into the

religious teaching and practices of the schools

“offensive.”51 For state officials to determine whether

a school teaches “primarily,” “exclusively,” or

“predominantly” of a “particular religion,”—and is

thus “pervasively sectarian”—“threatens to embroil

the government in line-drawing and second-guessing

regarding matters about which it has neither

competence nor legitimacy.”52 Colorado’s picking of

winners and losers on the “pervasively sectarian”

scale, instead of being required by the Establishment

Clause, violated its rule of “equal treatment of all

religious

faiths

without

discrimination

preference.” Maine has the same practice, and it has

the same infirmities.

Third, the Mitchell plurality noted that the

“pervasively sectarian” test had roots in anti-religious

bias.54 It is not just its historical roots that show this,

however; it is baked into the very concept. It springs

from a theory, as is demonstrated by the Maine

program, that the Constitution is anti-religion and

must protect against people who take their faith too

seriously.

51 Id. at 1261 (quoting Mitchell, 530 U.S. at 828).

52 Id. at 1265.

53 Id. at 1257 (quoting Larson v. Valente, 456 U.S. 228, 244

(1982)). The Tenth Circuit noted that this same principle is

inherent in the Free Exercise and Equal Protection

Clauses. Id.

54 530 U.S. at 828-29.

This completely miscomprehends the purpose of

the Religion Clauses. Those clauses are no more antireligion than the Free Speech Clause is anti-speech or

the Free Press Clause is anti-press. To the contrary,

the Religion Clauses are pro-religion. These freedoms

have practical limits for the common good and

welfare, but they cannot properly be restrained simply

because someone talks or prints “too much” on a

particular topic. Nor does the First Amendment allow

religious practice to be penalized because it is “too

sincere” or “too pervasive.”

Maine here, by applying the “pervasively

sectarian” test, has made parents who send their

children to religious schools second-class citizens

because of their religious beliefs and practices. But

“[t]he Establishment Clause, at the very least,

prohibits government from appearing to take a

position on questions of religious belief or from

‘making adherence to a religion relevant in any way to

a person’s standing in the political community.’”55

Maine’s law diminishes these parents’ “standing in

the political community,” sending a message “that

they are outsiders, not full members of the political

community.”56 This does not further the purposes of

the Establishment Clause and the Free Exercise

Clause, but subverts them.

Fourth, the Mitchell plurality rejected as

“unworkable” a test that would deny religious

55 Cnty. of Allegheny v. ACLU of Pittsburgh, 492 U.S. 573,

593-94 (1989) (quoting Lynch v Donnelly, 465 U.S. 668,

687 (1984) (O’Connor, J., concurring)).

56 Id. at 595 (quoting Lynch, 465 U.S. at 688 (O’Connor,

J., concurring)).

organizations of generally available, secular aid

because the aid might be diverted to religious

purposes.57 Similarly here, Maine is not providing

“religious” funding; it is providing funding to educate

its children, which is a legitimate secular purpose. To

attempt to parse whether a particular dollar is used

for instruction deemed “too religious,” in addition to

such an attempt’s other infirmities, would be a

practical nightmare.

Finally, the Maine system, based as it is on this

Court’s “pervasively sectarian” case law of decades

ago, is inconsistent with the opinions of the Court in

Zobrest and like cases that have explained that the

Establishment Clause is not implicated when

generally available public funds are distributed to

religious organizations via the choices of private

individuals. Here, the funding follows the child. But it

is not Maine that decides where the child goes to

school; it is the child’s parents. This breaks the causal

chain, isolating the state from the decision of where

the funding is spent. Recognizing this causal break

has a secondary, laudatory effect of giving support to

the fundamental right of parents to direct the

education of their children, itself a legitimate secular

purpose.58

CONCLUSION

It is time to inter the “pervasively sectarian” test,

once and for all. Maine improperly applies it to deny

generally available funding, appropriated for a

57 530 U.S. at 820.

58 See Troxel v. Granville, 530 U.S. 57, 65-66 (2000); Pierce

v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925).

legitimate secular purpose, because parents have

selected a school for their children that the state

deems “too religious” in its instruction. This it may not

do. The Free Exercise Clause protects exactly what it

says, the free exercise of religion. The Establishment

Clause does not work at cross-purposes with the Free

Exercise Clause, but, rather, buttresses it.

Respectfully submitted

this 10th day of September, 2021,

/s/ Frederick W. Claybrook, Jr.