By / Dec 8

Today, the U.S. Supreme Court will hear oral arguments in Carson v. Makin, a key religious liberty case before the court this term. Here’s what you need to know about this case:

What is the case about?

This case arises out of the unique way that Maine provides free education to its 180,000 students. Every child in the United States is entitled to a free public education. In Maine, there are rural areas where students don’t have easy access to a public school. Given that limitation, some of the school districts allow parents to choose a private school in the area to teach their children. 

In order for a school to be able to participate in this program — and receive government funding — the private school must meet the state’s minimum requirements, and it must be “nonsectarian.” Functionally, this excludes a private religious school from participating in Maine’s public education program, because any school that provides religious instruction is considered “sectarian.”

In this case, three families sent their children to private schools that are accredited but do not meet the nonsectarian requirement because they are religiously affiliated. The schools aren’t approved by the State of Maine, and the families did not qualify for tuition assistance. They filed a lawsuit stating that Maine’s nonsectarian requirement violates the Constitution.

This case is a follow-up from Trinity Lutheran Church of Columbia v. Comer and Espinoza v. Montana Department of Revenue, which both dealt with the question of whether states can exclude organizations and schools from receiving public benefits simply because they are religious. Each case was decided favorably for religious liberty.

Why is this case important?

In Espinoza v. Montana Department of Revenue, the Supreme Court held, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” 140 S. Ct. 2246, 2261 (2020).

The Carson case is important because it would close a loophole the First Circuit opened when upholding Maine’s exclusion of “sectarian” schools from its public education system. As the brief ERLC joined on petition for certiorari explains:

Nor can a state justify discrimination against religious schools with the ploy that the First Circuit permitted here: labeling its benefit as a “substitute” for, or “rough equivalent” of, a free “secular public education,” and then arguing that such an education must be secular, so religious schools can be excluded. That result and rationale conflict with this Court’s ruling in Espinoza and would allow easy evasion of Espinoza in the context of many government benefits. This Court must reject that rationale before other states attempt to capitalize on it.

Maine had argued that it was not excluding religious schools from participating in a public education program because the public benefit offered was for a secular education. It is easy to see how states would be able to continue excluding religious organizations from public benefits simply by redefining the nature of the benefit offered.

How has the ERLC been involved?

The ERLC was involved with briefs at the petition for certiorari stage and when the case was before the Supreme Court on the merits.

The brief the ERLC joined on the merits argues that Maine’s public education system, especially in light of how Maine defended its system in the courts, does not merely exclude religious schools — it discriminates against them. The brief goes on to argue that the Supreme Court should adopt a per se rule against religious discrimination. In other words, where a state discriminates against religion, courts should immediately strike down the law rather than applying any kind of balancing test with state interests.

What’s next for this case?

The Supreme Court will hear oral arguments in this case on Dec. 8, 2021. The court will release its opinion later this term, likely in May or June of 2022. ERLC will continue to cover future developments on this case at ERLC.com.

The ERLC will always protect religious liberty before Congress, the courts, and in the public square. 

For Further Reading:

By / Oct 8

Accreditation just gets “curiouser and curiouser” (to quote Alice in Wonderland). The New England Association of Schools and Colleges is pressuring Gordon College to drop its strictures against “homosexual practice,” and Gordon has bought time by agreeing to review the policy over the next year. In a mid-July letter to Gordon President Michael Lindsey, NEASC’s president Barbara Brittingham assured him that neither withdrawal of accreditation nor probation were on the table for the upcoming September meeting (a short-term assurance the College tends, understandably, to extrapolate to the more distant future), but one has to wonder whether the Association will be so laid back if Gordon’s journey of essentially-coerced, sensitive self-scrutiny brings it back to precisely to the good place it’s been all along.

It may seem that Gordon’s long-term viability as a convictional school is at stake, but I would suggest that the future of accreditors such as NEASC is really the issue. How can they survive while continuing to behave so badly?

Newcomers to the scene might well wonder what scruples over homosexual behavior in their midst has to do with Gordon’s heft as an educational institution, especially since the vast majority of humankind throughout history, and today, has found gay and lesbian sex to be perverse. When did the “love that dare not speak its name” become “the love whose critics dare not speak their names?”

Neophytes likely miss the point that academic accreditation, as practiced in America, has long since left its focus on serious scholarship and found the charms of social engineering and convenience-marketing more compelling.

Accreditors, who used to make sure that schools had substantial libraries, reputable, well-trained professors, and such now strain at minutiae, making manifestly wonderful schools jump through hoops of dubious provenance, passing judgment on scholars whose sandals many of these “education professionals” are unworthy to unlatch.

Alas, schools desperate for noses and nickels and have come a long way from the day when American president James Garfield could observe, plausibly, that an “ideal college was one with [Williams College president] Mark Hopkins on one end of a log and a student on the other” (a favorite quote of my old philosophy chairman at Wheaton College, Arthur Holmes). The system now is little disposed to produce either the Hopkinses or the students who are apt for or inclined toward a profitable afternoon on said log. Instead, most colleges and seminaries willingly pay bureaucrats to satisfy the bureaucrats at the accreditation bureaus, while the dispiriting race to the bottom continues.

Then there’s the ideological bullying, such as that which Gordon is suffering. It’s not a new thing. Let me offer a little history.

Back in 1991, the Middle States Association of Schools and Colleges pulled a similar stunt, this time to serve the feminist agenda. They menaced Westminster Theological Seminary for having a board made up exclusively of men, ignoring the seminary’s charter requiring ordination of its trustees and its belief that ordination should be limited to men. In other words, MSASC took sides in the egalitarian-complementarian theological/ecclesiological debate and threatened to punish the seminary for coming out on the wrong side of that issue.

Fortunately, President George H.W. Bush had appointed now-Senator Lamar Alexander as Secretary of Education, and Alexander expressed reservations over re-certifying MSASC to judge schools in their territory. It got their attention, and, accepting a face-saving tweak, they relented. Unfortunately, President Obama’s Secretary of Education Arne Duncan shows no such interest in protecting biblically serious schools from PC harassment.

Such hostile forays into biblical communities are not limited to secular accreditors. Back in the mid-90s, the Association of Theological Schools revised their bylaws, and therein took a run at the complementarians in their midst. (I’m told they also tried to punish schools who drew lines against homosexuality, but the Mainliners failed to move this out of committee.) When they essayed an egalitarian clause, they got pushback from traditionalists, and so they permitted a qualifier. The resulting line stipulated that egalitarian standards were the ATS default position, but that an exception could be made for schools whose root, historical (read “knuckle-dragging, patro-tyrannical”) practice prevented them from cooperating in good (read “pathetic”) conscience.

While this was a helpful adjustment, I suggested, from the floor, that it should read something like, “The ATS position should honor long-standing, vastly-favored, biblical-based scruples supporting complementary gender roles in the Church, but if member institutions cannot bring themselves to accept them, they should be allowed to deviate toward egalitarian practice.” As I recall, it was not that well received, though, afterwards, I discovered that it heartened a number of rougher characters.

Now we have the silliness at NEASC, and there is little prospect of spiritual or even rational awakening in the halls of accreditation. They will continue to advance the “tolerance” agenda, so well described in Allen Bloom’s, The Closing of the American Mind. Where forced into tactical retreat, they will regroup, and emerge to fight another day.

What’s next? Will they assault Union University in Jackson, Tennessee, when someone cries, “These wahoos say Hindus are going to hell!” Talk about politically incorrect. And poor Gordon has also drawn the line against those engaging “sexual relations outside of marriage,” so they’d better brace themselves against the co-habitation enthusiasts, who might exclaim, in horror, “You mean to say that Oprah Winfrey could not have been admitted to Gordon when she was living with Stedman Graham!? Have you no shame?”

Meanwhile, Princeton University seems accreditationally safe even through they continue to employ a philosophy professor, Peter Singer, who suggests that bestiality may not be so bad. The same goes for Northwestern University, whose faculty includes a Holocaust denier and a sexologist who scheduled a couple performing a live, nude, conjugal act for his students. Apparently, a lot of leeway and lunacy is acceptable so long as it’s not “leeway and lunacy” based on Christian scripture – “foolishness to the Greeks” if you will.

From her bio, I read that NEASC’s enforcer, Barbara Brittingham, has served widely as an accreditation consultant in the North Africa and the Middle East – in Qatar, Oman, Morocco, and the United Arab Emirates. One wonders whether she’s dared to suggest rules for the normalization of homosexuality in the Arab World schools she’s advised. Perhaps she’ll begin to notice that homosexuals are safer in cultures shaped historically by the Bible (and Bible-based schools such as Gordon) than in regions ignorant of or hostile to God’s Word.

President Eisenhower warned of the power of the “military-industrial complex.” Today, we must decry the anti-Christian-school power of the “government-education” complex, which seems determined to homogenize institutional belief and practice in a decidedly unholy direction.

Christianity Today reports that Gordon, which prides itself on its “history of respectful self-critique and of dialogue with individuals of diverse backgrounds” has formed a “discernment committee,” to the satisfaction of Ms. Brittingham. I’m afraid the discernment they’re seeking may not be so much biblically exegetical – congruent with the full counsel of the ‘IXTHUS’ spelled out in Greek on their seal – as diplomatically expedient. Me genoito!

I trust there are limits to how much we evangelicals will endure. We said as much in the Manhattan Declaration. And I hope the accreditors are listening.