Oral arguments on Wednesday in the Supreme Court case of Christie v. State of Maine served to emphasize the big picture of religious freedom and the protection of religious rights both as matter of constitutional law and state policy.
Most significantly, conservative Justice Anthony Kennedy suggested that the state has a valid interest in continuing to make public school classrooms available to students of the same faith who want to attend private Christian or other religious schools while also protecting the “free exercise” of religion by religious groups.
The high court challenge was brought by families of private-school students in Maine who say the state government violated their right to follow their religion by making a public school available to them but not to other students.
One of the appellants, Meredith Thompson, has nine children who are all enrolled in private schools as well as in the public schools of their own faith. An attorney for the families, Andrew Seidman, argued that even if the state does have a legitimate interest in attending to the special needs of those who are religious in their own beliefs, a federal law known as the Religious Freedom Restoration Act protects religious freedom by preventing states from discriminating against religious groups.
Kennedy has made such appeals repeatedly since the Supreme Court’s 1990 ruling in Employment Division v. Smith. That ruling held that requiring employers to accommodate the religious beliefs of those facing religious discrimination violated the First Amendment right to free exercise of religion.
The court has generally affirmed the Smith ruling, but by imposing narrowly defined “compelling state interests” it has limited the scope of the state’s ability to require employers to accommodate workers.
Writing the opinion in Smith, Kennedy concluded that even though, in the view of the government, providing employees with health care coverage or religious accommodations for prayer breaks or housing or other necessities is a legitimate interest, there must be “minimal discrimination” against others who have different religious beliefs.
Minimizing such discrimination was key to the Supreme Court’s 1993 ruling in Employment Division v. Smith. Chief Justice William Rehnquist had observed in the 1990-91 term that in recent years “there has been considerable use in the federal courts of arguments claiming that … what is reasonably called the freedom of religious exercise entails many greater types of discrimination than originally supposed.”
In recent years, however, the lower courts have expanded the scope of religious freedom under the Smith ruling to more broadly include “conscientious objection” to services deemed appropriate by state or local officials. These decisions have allowed hospitals, child-custody panels and probate courts to refuse to perform services that are considered insensitive to religious beliefs.
In the Maine case, Mr. Seidman urged the court to adopt such a broader interpretation.
“These cases have, unfortunately, become a crutch,” Seidman said. “This is a case where the line, or these kinds of reasonable-to-legitimate governmental interests, are fairly clear.”
While he suggested that the state has a legitimate interest in serving religious schools while also allowing the state to allow religious groups to visit public schools, Mr. Seidman did not directly ask the court to use the Smith ruling as the basis for striking down that state policy.
But when Justice Antonin Scalia asked whether the court might “do the fair thing” by looking at the degree of discrimination that results from the state’s failure to open a public school to students of other religions, Mr. Seidman said the court should “allow the government to foster the idea of tolerance, even though that involves, sometimes, putting up a wall.”
The state’s lawyer, Robert Young of Maine Attorney General’s Office, said justices should follow their own instincts and let state lawmakers, not the court, make the decision on whether to open public schools to students of all faiths.
“It doesn’t matter if there’s resistance on the part of a faith-based organization,” Mr. Young said. “The door remains open to all students.”