Walter Weber, Harry, 2020 discussed on Jay Sekulow
Welcome back to secular school choice back at the Supreme Court. Once again. This is our brief from holding my hands right now. This case is out of Maine. Walter Weber, a senior counsel with the A. C L. J is joining us now, Walter my first question for you just before we even get into the the factual details, which might be the reason why Is it? It seems like when it came to school choice and religious schools and parents having the opportunity to just make the decision on their own, that the Supreme Court answer that and then in a case the Espinosa case out of Montana, these states that have these amendments which are really anti Catholic amendments, but were broader than that at the time, so it didn't look that way. On paper, the Blaine amendments, the court gutted In 2020. So why are we back at the Supreme Court again on this question? Jordan has a great question that there seems to be recalcitrant or resistance in the lower courts. It's not entirely the fault of the lower courts. Keep mind at the Supreme Court for a number of years, mainly in the seventies, and sometime after that was very strict about saying You can't have any government funds going to the teaching of religion. And the Supreme Court since that clarified that school choice is fine, and in fact not only to find that in some circumstances, it's a constitutional right. You can't penalize people. Parents in particular because they choose a religious education for their Children. So there's a little bit of lingering tension between this idea that you have to keep all federal or state money away from religious schools. Versus saying in the school choice program. As long as you treat everyone equally, that's fine. You know, Walter, the issue here. It's specific to this is out of Maine. And we learned about this in Maine specific in some of the facts, specifics that there are rural areas where there might not be public schools nearby. I mean, so that become difficult. So main enacts this program. Uh, what was it was at the state or was it that was at the courts that prevented the parents? From utilizing these vouchers to go to religious schools if they chose It was the state. What happened was that As you said Jordan in Maine. There a lot of rural areas where they just don't have a public high school. In fact, I think it's about 50%. Maybe even more than 50% of the quote unquote school units in the state do not have Public high schools. So what the state did through its legislatures have said, Well, all right, If you don't have a public high school, you can just pay the parents the tuition up to a certain cap. To any school. They want to go to private or public. And in fact, parents use that to go to both private, secular and private religious schools until The state in response to an attorney state attorney general opinion decided that it was an establishment problem for them to pay the tuition for parents at a religious schools. And so what they did was they adopted a new law, saying You can send your kids to any school you want and we'll pay for it. Except not a school that quote unquote promotes the faith or belief system with which it is associated and or presents. The material taught through the lens of his faith, so you can send your kids to religious school long as it doesn't teach religion. Which was obviously a problem. You know, Walter, I think about the cases that we've handled over the so many years at the Supreme Court. Dealing with religion clause of the establishment clause is one thing that we've been able to establish with the cases we've handled. And the president's we've handled is that in fact, the establishment clause doesn't license government I'm quoting from one of our opinions here. The the establishment clause doesn't license government to treat religious people are religious practices as if there's subversive. To the Constitution and subject to unique disabilities. Yet that's precisely what is happening. I agree with the the lower courts have been in conflict because the Supreme Court itself has been In conflict, and they had this very strict interpretation of church state separation for a long time. That is changed. Now. What do you feel like? The outcome of this case is going to be Well, I'm very optimistic about it because the Supreme Court has said In Trinity Lutheran Church and Espinosa. Most recent cases on the question that targeting Religious entities or persons for second class status is unconstitutional. It's not just a matter of the state can include them, The state cannot exclude them just because of who they are. Now what Maine is done in this case is trying to thread the needle and say, Well, all right, we're not excluding religious schools because their religious we're excluding them when they teach religion as if there's a difference between Being a religious school and teaching religion. Harry, we We've talked about this this issue of education as a civil rights issue. That's why we support broadly. The school school choice efforts and we fight the hurdles that come in the way like Walters type of this ridiculousness of saying, Well, no, you can use it a religious school but not an actual religious school. If they have any kind of religious training in the school day, and I mean some schools that would be very difficult to separate a history class out from Other classes. It's just because it be part of the culture of the school, which the parents would know. Then they would be making the decision but again, even when they want, it's like even when they want to give these opportunities. Can't quite get over the hurdle of saying it's okay to send your kid where you think is best and take out all the other issues. I mean, that just seems what ultimately what's fair. I think you're precisely correct. And so in the Zelman Simmons case, which was decided almost two decades ago, and it involved a school's system in Cleveland designed to advance the interests of African American and minority kids. The Supreme Court ruled in favor of the parents, it said. That choice follows the that excuse me. The money follows the parent's choice, and that is enough to satisfy the religion causes. Today. We live in a very vexed time. People continuously talk about inclusion. They talk about diversity, except they don't want diversity when it comes to parents who want to place their kids in religious schools. And so I think we need to be very, very aggressive, very, very vigilant. Because at the end of the day we live in a time of real particular Arat ease where religion is under attack. But first and foremost, it's under attack in universities and colleges. And then this per percolates into state legislatures. And they are then misreading in my view. The United States Constitution. You know, Jordan, I was going to say something here, and that is that the and I think this is following up above what Harry and Walter have said the fact of the matter is, and I think we have to be clear on this is that there has been with changes in the Supreme Court. Um, I think a clearer understanding of what the establishment clause is. In the free exercise clause, Mean and actually pretty speech close to a mall to one of the things I wanted to get your insight on. You've got with Justice Gorsuch, Barrett and Kavanaugh added to the court. My sense is that the main case should not really be that you never count counted over until it's done. But it should not be a difficult case for them in light of where their own jurisprudence has been, even while they were on the lower courts. Yeah, I think that's right. And in fact, this should be a lopsided decision. I mean, unless, of course, unless somebody on the court is going to say we're not following our previous precedents that say you can't treat Religious people and religious choices. Somehow second class, uh, the idea that there is a difference between excluding religious schools and excluding schools that teach religion. It's just, uh it's fake. I mean, the it's like saying we're not making a law against evangelists are only people who preach the gospel, right. I mean, it's It's the same thing. So I think I think the Supreme Court should not have any problems. Seeing that That's the problem here. The fact that they lower courts may think that there was some wiggle room left. Probably just reflects the fact that the Supreme Court will decide the case in front of it and not future hypothetical cases. Now that the first circuit essentially dare them to say Well, tell us that their religious schools and schools, the future religion or the same thing, I would hope the Supreme Court would say. Yeah, they are. And Walter. I mean the final question this this would if this case if we're and we're filing today, if there's a victory here, it's clear like you said. They answered this question, which seems absurd. But then they answered, so it's clear for these lower courts. This has been a fundamental shift at the Supreme Court level, which would open the door to more states, uh, being more creative with their with their voucher programs in the school choice programs..