Did the Biden Administration Retreat on Religious Liberty to Spite Trump? | Opinion

A Supreme Court friend-of-the-court brief filed recently by freshly sworn-in Solicitor General Elizabeth Prelogar may prove that President Joe Biden's administration is determined to reverse every last policy decision of the predecessor Trump administration, even on issues of religious liberty. The Court will hear on December 8 a case brought by Christian parents who live in Waterville and Bangor, Maine, and who enroll their children in private schools that provide religious instruction (Carson v. Makin). Under Maine law, the students' tuitions would be paid by the State if the schools were "nonsectarian." The Christian parents claimed in a federal lawsuit that disqualifying "sectarian" schools and religiously observant parents from governmentally funded tuition assistance violates the First Amendment's protection of the free exercise of religion.

This challenge has been made twice before in Maine federal court. Under then-governing Supreme Court precedent, the federal trial and appellate courts in Maine previously rejected the parents' constitutional argument. But recent Supreme Court decisions—particularly, the 7-2 decision in Trinity Lutheran Church v. Comer (2017)—expanded the scope of the Free Exercise Clause. The Roberts Court declared that the "religious character" of an institution, even a church, may not constitutionally disqualify it from receiving benefits available to comparable non-religious entities.

The Carson lawsuit was first launched in August 2018 as a private action brought against Maine's commissioner of education. In June 2019, President Trump's Department of Justice, speaking through the United States attorney in Portland and the assistant attorney general for the Civil Rights Division, entered the case uninvited with a 20-page "Statement of Interest" supporting the parents' Free Exercise claim. Justice concluded that the court "should apply Trinity Lutheran and hold that [the Maine law] violates the Free Exercise Clause." The trial court nonetheless ruled that it was bound by precedent to reject the parents' claim.

The parents then appealed to the U.S. Court of Appeals for the First Circuit. President Trump's Department of Justice chimed in again with a friend-of-the-court brief in October 2019. It once more supported the parents. The brief said: "The constitutional violation in this case is especially egregious because it involves the education of children. The right of a parent to determine the role of religion in his child's education is one of the most important elements of religious liberty."

The Department of Justice (DOJ) building on
The Department of Justice (DOJ) building on January 11, 2021 in Washington, DC. Stefani Reynolds/Getty Images

The court of appeals stood by its earlier precedents and rejected the constitutional challenge. The parents then took their claim to the Supreme Court. On the final court day before it adjourned for the summer, the Court agreed to hear and decide the Carson case.

Thirty-three amicus briefs were filed in the Supreme Court supporting the parents. The parents' allies include the Southern Christian Leadership Conference, 21 states (three with Democratic governors), eleven Republican senators, former federal appellate judge and First Amendment authority Michael W. McConnell, the Becket Fund for Religious Liberty, many national Orthodox Jewish groups and the LDS Church.

But the Justice Department was notably silent, no longer supporting the parents' free exercise claim. The late Justice Ruth Bader Ginsburg and fellow liberal Justice Sonia Sotomayor had dissented in the Trinity Lutheran case, so it is not entirely surprising that the federal government in a Democratic administration would not promote further extending that decision.

Maine's response brief was filed on October 22. In the following seven-day period when the Supreme Court Rules permit friend-of-the-court briefs, eleven taking Maine's side were filed. They included the National School Boards Association, the Freedom From Religion Foundation, Americans United for Separation of Church and State, American Atheists, Inc. and The National Education Association. The last friend-of-the-court brief endorsing Maine's position filed late on Friday was by the solicitor general of the United States. Accompanying the brief was a request to permit the solicitor general to present 15 minutes of oral argument supporting Maine because "the United States has a substantial interest in the constitutional principles governing this case."

Solicitor General Prelogar's brief acknowledged that "the United States had filed an amicus brief supporting [parent] petitioners" in the court of appeals. But, the brief declares, "[a]fter the change in administration...the United States reexamined this case" and discovered—in a remarkable epiphany—that the Christian schools were disqualified not because of their "religious identity," but because of "the religious nature of the instruction that the state funds would be used to provide." But the schools' religious instruction was hardly a secret when the litigation was working its way through the lower courts. Nonetheless, the United States' brief in the Supreme Court invoked it to vindicate the government's total reversal from active support of the parents to energetic opposition, punctuated with a request to argue the revised position orally.

President Obama's Justice Department was silent when the Trinity Lutheran case was briefed in the Supreme Court in 2016. The federal government left that litigation to the State of Missouri notwithstanding its recently discovered "substantial interest in the constitutional principles."

Is there a reason for the Justice Department's total about-face in this critical religious liberty battle other than to prove that Biden is not Trump?

Nathan Lewin is a Washington lawyer who has argued 28 cases in the Supreme Court and taught at Harvard, Columbia, Georgetown and the University of Chicago Law Schools. He authored an amicus brief for Orthodox Jewish organizations in Carson v. Makin.

The views expressed in this article are the writer's own.