It’s a fight for free-exercise rights

Of all the people in the world, the folks at the Associated Press should have gotten it right. AP’s January report on the so-called “Stillwater School” case, now being considered by the U.S. Supreme Court, was largely a helpful and evenhanded piece of reporting. For the most part, they got the five “w’s” of traditional news reporting right (who, what, when, where, and why).

But AP reporter Mark Sherman missed his opportunity to highlight and clarify the first “w” in the story. Eligibility by nonpublic schools for governmental financial aid is only a minor aspect of this very important debate. The argument is ultimately more about students and their families—and their constitutional right to enroll at a school of their choice.

It’s true that Stillwater Christian School of Kalispell, Mont., is a player in this drama. But the real focus belongs not on the school but on a couple of students at Stillwater and their parents.

When the Montana Legislature five years ago passed a measure providing modest scholarship assistance for all students—regardless of the school they were enrolled in—these parents signed on. But it didn’t take long for Montana’s Supreme Court to negate the scholarship program, ruling that it countered long-standing provisions of Montana’s constitution. The parents appealed to the U.S. Supreme Court, which heard oral arguments in the case on Jan. 22.

AP reporter Sherman said: “Advocates on both sides say the outcome could be momentous because it could lead to efforts in other states to funnel taxpayer money to religious schools.” The bogeyman is always the “schools”—even though the Montana plan specifically designated the parents, not the schools, as recipients of the scholarship benefit.

Chief Justice Roberts has tended to be an incrementalist more than a trailblazer.

The impediment to that scenario is that 37 states—including Montana—have provisions in their state constitutions that say religious schools aren’t eligible for state aid. Many of those provisions are so-called “Blaine Amendments,” described by The Wall Street Journal as “late 19th century language, amid that era’s anti-immigrant, anti-Catholic fervor.” A federal version of the measures was pushed (although unsuccessfully) in 1875 by Maine Congressman James Blaine. But the string of state measures pretty much all said bluntly what Montana’s spelled out: Public funds can’t be spent for “any sectarian purpose.”

Most efforts to dilute that prohibition for much of the last century have ended up heightening the “wall of separation” between church and state. It’s been only in the last 20 years that a few cases have begun emphasizing the “free exercise” side of our First Amendment rights instead of the “no establishment” side. In doing so, they’ve moved the focus from institutions to people.

The Stillwater parents who heard their case argued before the Supreme Court want the point made in simple, human terms. They’re encouraged by a 2017 case—one of the most recent having to do with state support of a religious school. In that case, Trinity Lutheran v. Comer, the high court ruled 7-2 that a Missouri ban on financial aid to a school like Trinity couldn’t stand. The issue: If public money was being made available to secular schools to resurface their playgrounds, it had to be available to all other schools as well, including Trinity.

Thoughtful observers of the Supreme Court weren’t sure how to read the questioning by the justices in the Stillwater case—and especially the queries of Chief Justice John Roberts, who that day was splitting his duties between the court in the morning and his role across the street that afternoon overseeing the Senate in its Trump impeachment trial.

On religious liberty issues, Roberts has tended to be an incrementalist more than a trailblazer. If he chooses to move slowly, families hoping for more than a resurfaced playground may be disappointed. If, however, he boldly backs the Stillwater parents, and gets four other justices to join him, it could be a signal that other parents across the country—including hundreds of thousands of Catholics—can warmly welcome.