The Supreme Court announced on July 31 that it will formally consider on Sept. 30 whether to hear a challenge to Michigan’s ban on government funding of religious schools.
The case comes as the school choice movement, which aims to give parents an opportunity to keep their children out of under-performing government-run schools by providing alternative education funding strategies, has enjoyed a string of victories at the nation’s highest court in recent years.
The Supreme Court voted 6–3 in 2022 to strike down a Maine law that excluded families from a student aid program if they chose to send their children to religious schools. In Carson v. Makin, the court held that the program violated the Free Exercise Clause of the First Amendment.
The clause guarantees Americans the right to practice religion as they see fit. It has also been held to protect actions carried out in pursuit of religious beliefs, subject to some exceptions.
The Supreme Court voted 5–4 in Espinoza v. Montana Department of Revenue (2020) that Montana’s decision to exclude religious schools from a state scholarship program funded by tax credits also offended the Free Exercise Clause.
The prohibition against state funding appears in Article VIII, Section 2, of the Michigan Constitution, and applies to all private schools, whether they are religious or nonreligious in nature.
Many states have such provisions—known as Blaine Amendments—in their state constitutions.
“Many of its state counterparts have a similarly ‘shameful pedigree,’” the court said.
In the case at hand, the petitioners argue that the Michigan funding ban violates the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
Federal Judge Robert Jonker of the Western District of Michigan dismissed their lawsuit in September 2022, finding that their “Fourteenth Amendment claim rests on a narrow political process theory that has never been applied to a case like this, and that should not be expanded to invalidate a provision of Michigan’s Constitution that is facially neutral on parochial education.”
A facially neutral law is one that does not, as written, discriminate against a specific group.
A divided panel of the U.S. Court of Appeals for the Sixth Circuit affirmed the dismissal in November 2023.
The petitioners say in their petition that they agree with the Supreme Court’s holding in Espinoza that a “State need not subsidize private education,” but Michigan is not allowed to “enshrine a restriction against religious families in its constitution that makes it more difficult for them—as compared to other similarly situated families—to advocate for public benefits.”
They acknowledge that even if they win in court, they may still fail to convince the state Legislature to enact a school funding program they support, the petition continues.
“But a state goes too far when it intentionally requires laws that benefit religious citizens to go through a more onerous approval procedure than laws that benefit unprotected classes [of people]. Petitioners seek only a level political-access field with public-school parents.”
Hile’s attorney, John J. Bursch of Caledonia, Michigan, expressed optimism about the case.
“The State of Michigan, through its Blaine Amendment, has been discriminating against religious families for decades,” he told The Epoch Times by email.
“All these families want is an equal opportunity to seek support from the State for their children’s education, the same as other families. Petitioners are hopeful that the Court will hear their case on the merits and invalidate Michigan’s Blaine Amendment.”
The Epoch Times reached out for comment to Michigan Solicitor General Ann Sherman but had not received a reply at the time of publication.
