Moishe Bane, President of the Orthodox Union
Moishe Bane, President of the Orthodox UnionArutz Sheva

On Friday the Union of Orthodox Jewish Congregations of America (Orthodox Union), the nation’s largest Orthodox Jewish umbrella organization, filed a “friend of the court” brief urging the US Supreme Court to reverse the decision of the US Court of Appeals (1st Circuit) that allowed Maine to prohibit parents from using state tuition assistance payments at religious high schools.

The “friend of the court” brief was filed in the case of Carson v. Makin. It was co-authored by attorneys Gordon Todd and Daniel Feith of the Sidley & Austin law firm, Professor Michael Avi Helfand of Pepperdine Law School and Nathan Diament, Executive Director of the Orthodox Union Advocacy Center. The case was brought by parents who reside in Maine.

Maine provides tuition assistance payments for all families with school-age children who live in locales that do not operate their own high schools. Under the program, parents may choose the accredited (or otherwise approved) school their child attends and the state will pay the tuition. But, since 1980, Maine has prohibited parents from choosing to enroll their children in “sectarian” high schools under the program. This discriminatory policy has been challenged in court twice (1999 and 2004) and the US Court of Appeals upheld the policy.

The new lawsuit was brought now in the wake of the US Supreme Court’s recent rulings in Trinity Lutheran v. Columbia (2017) and Espinoza v. Montana (2020). In both of those rulings, the Supreme Court declared unconstitutional state aid programs that excluded the participation of religious institutions because of their “status” as religious entities. In upholding Maine’s exclusionary policy, the Court of Appeals held that while those precedents found exclusion based on religious “status” invalid, it is still valid to block state funds from being directed to religious “uses.”

The arguments in the brief filed centered on urging the US Supreme Court to reverse the lower court’s ruling because the status/use distinction would effectively discriminate against religious groups – such as Orthodox Jews – whose religious observance is based on performance of religious activities across the fullest spectrum of activities.

The brief explains how, if adopted, the exclusion of religious people or institutions from government aid programs could well lead to Orthodox Jews (and others) being excluded from government-provided programs in the fields of healthcare, safety codes, social services, and education. Moreover, the brief presents to the Court the myriad aid programs in which Congressional and other policymakers (often at the urging of the OU’s advocacy) have included religious persons and entities including federal disaster aid, security grants, COVID relief programs (including PPP and school aid), and more.

Ultimately, the Orthodox Union’s brief argues: “The principle of neutrality, which has served as the Court’s lodestar in both Free Exercise and Establishment Clause cases, helps delineate when funding for religious organizations would be forbidden and when it would be required….where the government offers aid on the same terms to all who further some legitimate secular objective….not only does government funding not undermine the principle of neutrality, but the principle of neutrality requires allowing the participation of qualified religious organizations…”

The Orthodox Union’s Nathan Diament stated: “The essential promise of the First Amendment’s religion clause is to guarantee religious freedom in the United States by requiring government neutrality toward religion. A state discriminating against religion – as Maine is in its tuition assistance program – is just as unconstitutional as a state promoting one particular religion. In Carson v. Makin, the Supreme Court has yet another opportunity to advance religious liberty for all Americans of all faiths.”

Orthodox Union President Mark (Moishe) Bane stated: “All parents and families should have the right to make the best choice for their children’s education. By participating in this case, the Orthodox Union hopes to protect all families against institutional, anti-faith discrimination not just in Maine and not only in school funding programs, but in all states and programs that attempt to favor secularism to the exclusion of faith.”