Mississippi had actually filed its abortion appeal in the previous term, in June 2020, when Justice Ginsburg was still alive, but it wasn’t until nearly a year later, this past May, that the court agreed to hear it. The case, Dobbs v. Jackson Women’s Health Organization, met none of the usual criteria for deciding whether to hear a case: In overturning the state’s ban on abortion after 15 weeks of pregnancy, the United States Court of Appeals for the Fifth Circuit simply applied binding precedent, and there was no dispute among the lower federal courts for the Supreme Court to resolve. What the case offered was a vehicle the newly empowered anti-abortion supermajority was waiting for.
The decision to hear the New York gun case, New York State Rifle & Pistol Association v. Bruen, came after years during which the court sidestepped multiple opportunities to expand on the Heller decision, to the frustration of Justices Clarence Thomas and Samuel Alito, who had taken to complaining that their colleagues were turning the Second Amendment into a “second-class right.” Their protests finally bore fruit in March of this year, when the court accepted an appeal filed by a National Rifle Association affiliate.
The grant of review in the Maine religious schools case came at the very end of the last term. The grant itself was no surprise; the case is tailor-made to complete a project that Chief Justice Roberts has approached incrementally with the clear goal of enabling religious institutions to enjoy the same public benefits as secular institutions.
His mentor and predecessor, Chief Justice William H. Rehnquist, had a similar goal but lacked the votes, or perhaps the will, to see it to completion. One of his last major opinions, Locke v. Davey in 2004, held that while a state could choose to subsidize religious education, it was not required by the First Amendment’s Free Exercise Clause to do so. There needed to be “play in the joints,” Rehnquist wrote, connecting the First Amendment’s two religion clauses, one that protects the free exercise of religion and the other that prohibits religious “establishment” by the government.
The new case would transform the permissive into the mandatory, asking the court to rule that Maine cannot exclude religious schools from a program that, in school districts too small to have their own high schools, offers tuition reimbursement to parents who choose to send their children to a private school.
The line Maine drew for its tuition program was based on the state’s concern that to channel public money to the coffers of parochial schools that provide religious instruction, even though it is a program that relies on parental choice, would violate the Establishment Clause. The United States Court of Appeals for the First Circuit upheld the exclusion on the ground that the program’s purpose was to duplicate, for children lacking access to a local public high school, the religiously neutral education that a public high school offers. During the oral argument, the conservative justices seemed unable to grasp that simple proposition. They insisted to the state’s lawyer, Chief Deputy Attorney General Christopher Taub, that some kind of rank anti-religious discrimination was afoot.
Mr. Taub readily agreed with Justice Brett Kavanaugh that a state could not subsidize tuition at the schools of one faith while withholding the subsidy from schools of other religions; that would be discrimination, obviously. But Justice Kavanaugh wanted more. “Our case law suggests that discriminating against all religions, as compared to secular, is discriminatory just as it is discriminatory to say ‘exclude the Catholic and the Jewish and include the Protestant,’ ” he told Mr. Taub. While the court’s recent precedents may suggest such an equal-footing principle when it comes to public education, they aren’t quite there yet. They soon will be. The Establishment Clause, long understood as a barrier to taxpayer subsidy of religious education, was almost completely absent from the argument. Its absence will be more than rhetorical if the challenge to the Maine program succeeds.
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