No class on Monday
Tuesday & Wednesday:
--Hosanna-Tabor decision (link); Our Lady of Guadalupe (link);
-- Trinity Lutheran (Link); Espinoza Casebook p. 1886-1900(notice Justice Thomas's concurring opinion in particular); Carson v. Makin (link)
Wednesday (if time permits):
City of Boerne case (casebook p. 1214-1223)
Be sure to read Carson v. Makin (link)
I decided not to assign my article on school choice. I have deleted it from the syllabus.
No class on Monday September 30. I will be out of town.
I love this definition (Section 20-702(6):
“6)(a) Substantially burden means any action that directly or indirectly constrains, inhibits, curtails, or denies the exercise of religion by any person or compels any action contrary to a person's exercise of religion.
(b) Substantially burden includes withholding benefits, imposing criminal, civil, or administrative penalties or damages, or exclusion from governmental programs or access to governmental facilities.”
I. Reynolds (1878)—Religious belief and opinions are protected, but religiously-motivated conduct (i.e. religious exercise) is not protected.
II. Sherbert (1963) & Yoder (1972)—free exercise (conduct) is protected under a compelling interest test when a law substantially burdens religiously-motivated conduct.
III. Smith (1990) (back to the belief/conduct distinction)—religious belief and opinions are protected, but religiously-motivated conduct is not protected against neutral laws of general application.
IV. Post-Smith (1990 to present)—the Court attempts to define which laws are not neutral or not generally applicable. Also begins to question whether Smith should be overruled.
WASHINGTON – A diverse coalition of religious groups asked the Supreme Court late yesterday to block New York’s mandate forcing them to cover abortions in their employee health insurance plans. In Diocese of Albany v. Harris, a group of Anglican and Catholic nuns, Catholic dioceses, Christian churches, and faith-based social ministries initially sued over the mandate in 2017. After New York courts declined to protect the religious institutions, Becket and Jones Day asked the Supreme Court to step in. In 2021, the Justices reversed the lower courts’ rulings and told them to reconsider the case. However, the state courts ignored the Supreme Court and again refused to protect religious organizations, leaving them no choice but to return to the Supreme Court (Watch this short video to learn more).
When the New York State Department of Financial Services initially proposed the abortion mandate, it promised to exempt all employers with religious objections. However, after facing pressure from abortion activists, New York narrowed the exemption to cover only religious groups that primarily teach religion and primarily serve and hire those who share their faith. This exception does not apply to most religious ministries because they seek to serve all people, regardless of faith. For example, the exemption doesn’t extend to the Carmelite Sisters for the Aged and Infirm and their Teresian Nursing Home because they serve the elderly and dying regardless of religious affiliation.
“New York’s abortion mandate is so extreme that not even Jesus, Mother Teresa, or Mahatma Gandhi would qualify for an exemption,” said Eric Baxter, vice president and senior counsel at Becket. “The Justices should exempt religious organizations once and for all so they can focus on caring for the most vulnerable.”
After New York courts refused to protect religious organizations, the religious groups asked the Supreme Court to take their case. In 2021, the Court reversed the unfavorable rulings from New York state courts and told them to reconsider the case in light of Becket’s landmark victory in Fulton v. City of Philadelphia. Despite this, the state courts ignored Fulton, forcing the religious groups back to the Supreme Court once more to protect their freedom to serve according to their faith.
“Religious groups in New York should not be required to provide insurance coverage that violates their deeply held religious beliefs,” said Noel J. Francisco, partner-in-charge of Jones Day’s Washington office. “We are asking the Court to protect religious freedom and make clear that the mandate cannot be applied to this diverse group of religious organizations.”
The Court will consider whether to hear the case later this fall.
After we finish our discussion of Zelman, please feel free to ask me anything about the EC.
No longer a Wall, but an affirmation of confident pluralism and authentic neutrality.
Basically, the Court upheld the programs struck down in Felton I and Ball.
The remedial courses are purely secular (they are regular public school courses simply being taught on private school campuses. As the Court puts it on p. 1832:
. . . We . . . hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause when such instruction is given on the premises of sectarian schools by government employees pursuant to a program containing safeguards such as those present here. . . . Accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids’ Shared Time program, are no longer good law.
We turn now to Aguilar's conclusion that New York City's Title I program resulted in an excessive entanglement between church and state. Whether a government aid program results in such an entanglement has consistently been an aspect of our Establishment Clause analysis. We have considered entanglement both in the course of assessing whether an aid program has an impermissible effect of advancing religion, Walz v. Tax Comm'n of City of New York, 397 U.S. 664, 674 (1970), and as a factor separate and apart from "effect," Lemon v. Kurtzman, 403 U.S., at 612 -613. Regardless of how we have characterized the issue, however, the factors we use to assess whether an entanglement is "excessive" are similar to the factors we use to examine "effect." That is, to assess entanglement, we have looked to "the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and religious authority." Id., at 615. Similarly, we have assessed a law's "effect" by examining the character of the institutions benefited (e.g., whether the religious institutions were "predominantly religious"), see Meek, 421 U.S., at 363 -364; cf. Hunt v. McNair, 413 U.S. 734, 743 -744 (1973), and the nature of the aid that the State provided (e.g., whether it was neutral and nonideological), see Everson, 330 U.S., at 18 ; Wolman, 433 U.S., at 244 . Indeed, in Lemon itself, the entanglement that the Court found "independently" to necessitate the program's invalidation also was found to have the effectof inhibiting religion. See, e.g., 403 U.S., at 620 ("[W]e cannot ignore here the danger that pervasive modern governmental power will ultimately intrude on religion . . ."). Thus, it is simplest to recognize why entanglement is significant and treat it--as we did in Walz--as an aspect of the inquiry into a statute's effect.
These cases struck down programs providing secular instruction by public school teachers on the premises of religious schools.
Remedial courses in math and reading for educationally- and economically-disadvantaged children.
The Court held that the Lemon test was violated because of the risk of religious indoctrination and the symbolic link between the state and the religious schools.
What do you think about these cases?
Why is it unconstitutional for public school teachers to teach educationally disadvantaged children remedial reading and math skills in private school classrooms?
Suppose the public schools use “mobile classrooms” located in the neighborhood of private schools to teach the same kinds of supplemental and remedial courses.
This would eliminate most of the Court’s concerns (perhaps you could still argue that these programs somehow “aid” or subsidize religious schools by freeing up resources, but I don’t think that is a winner).
Should the location of the program be such an important factor?
Is this form over substance?
Ball (p.1830): “symbolic union between church and state;” and “any public employee who works on the premises of a religious school is presumed to inculcate religion in her work;” “these programs constitute a state subsidy of religious indoctrination.”
See also Aguilar: Catch 22. Entanglement.
If you don’t supervise teachers, fear of indoctrination.
If you do supervise teachers, excessive entanglement.
