Ep. 244: Big Ideas – Jewish Coalition for Religious Liberty with Howard Slugh - EdChoice

Ep. 244: Big Ideas – Jewish Coalition for Religious Liberty with Howard Slugh

April 6, 2021

Howard Slugh, founder of the Jewish Coalition for Religious Liberty, joins us to discuss an important case that might come before the U.S. Supreme Court.

Jason Bedrick: Hello, and welcome back to EdChoice Chats. I’m your host, Jason Bedrick, director of policy and EdChoice. And this is another edition of our Religious Liberty and Education series. Today, I’m grateful to be joined by Howard Slugh, founder and general counsel of the Jewish Coalition for Religious Liberty. He’s the coauthor of a chapter in the book for which the series is named, and his organization also recently filed an amicus brief in an important case that might be coming before the U.S. Supreme Court concerning religious liberty and education, which will be the subject of today’s conversation. Howard, welcome to the podcast.

Howard Slugh: Hey, thank you for having me. It’s great to be here.

Jason Bedrick: Well, it’s great to have you. Before we get into the case, perhaps you could tell us a little bit about your organization. You know, there’s already a lot of law firms out there working on issues related to the religious liberties, such as the Becket Fund, Alliance Defending Freedom, the Institute for Justice. So what’s the value add that the Jewish Coalition for Religious Liberty brings?

Howard Slugh: Sure. So we were founded in 2017. We were looking around and noticed that there weren’t a lot of organizations dedicated to bringing a Jewish voice specifically and showing Jewish interest specifically in religious liberty cases. We thought that was important for several reasons, one of which was opponents of religious liberty had done a really good job of categorizing religious liberty cases as Christians versus unpopular minorities and categorizing religious liberty as a tool that Christians used to oppress non-Christians, which we thought was a totally ridiculous idea and not at all reflective of religious liberty cases.

So, we came forward to say we will stand up for religious liberty and show that really religious minorities benefit tremendously. It’s great that Christians benefit, don’t get me wrong. But we also wanted to point out religious minorities benefit. And there’s a long line of cases benefiting Jews, Muslims, Native American religions, the Amish, and so on and so forth. And we wanted to highlight that and stand shoulder to shoulder in a lot of religious liberty disputes saying, don’t get confused. Don’t let opponents of religious liberty spin this as a minorities are hurt by religious liberty. But realize that religious minorities are in fact minorities, and they’re benefited by religious liberty.

Also, Jews in particular have a very unique ability to show the importance of religious liberty, because we have a lot of forward-facing obligations, a lot of rules that affect how we live in public, how we live at work, and things that we do, things that we do with on the street. And there’s a lot more room to rub up against the law and a lot of areas where religious liberty protects us. Also, we have a lot of obligations, right?

In Christianity, a lot of times the religious liberty cases come up to say that there’s a conflict between the idea of what God wants, the way they look at the world, and the law. For us, we can very concretely say we have a conflict between religious obligations and the law. That allows us to frame it somewhat more succinctly, and I think it often allows us to weigh in with examples that are very precise.

Jason Bedrick: Well, we’re going to get into some of those examples. First let’s address the case at hand, which is the Carson v. Makin case out of Maine, which many are saying is really like a follow-up to the landmark Espinoza decision from last summer. So perhaps you could just explain. What’s the Carson case and what makes it so important?

Howard Slugh: Okay. So as you said, it is a follow-up to Espinoza and this deals with a Maine tuition assistance program, which says that parents who live in a part of Maine that don’t have public schools are given tuition assistance by the state and they can use that money to go to any school they want in Maine or elsewhere, and they’ll have tuition paid for by the state. But that program has a provision in it that bans the money going to “sectarian schools.” And this is a case that looks at the constitutionality of excluding sectarian schools from such a program.

Jason Bedrick: All right, now the state argues that this non-sectarian requirement is acceptable, according to the U.S. Constitution, because in the Espinoza case there was a question that arose regarding religious status, which the court said it is impermissible to discriminate on the basis of religious status, that that violates the free exercise of the U.S. Constitution. But it left open the question of whether the state can discriminate on the basis of religious use. Kagan, Justice Kagan said, yes, it can. There’s a difference between status and use. Justice Gorsuch said that there is actually no distinction between the two, and the Chief Justice who wrote the opinion punted on that question.

So that seems to be the central question that comes before the court. The state of Maine says, well, there’s no problem here because a school can be associated with a particular faith. We have no problem with the religious status of the school. But it just must not “promote the faith or belief system with which it is associated and/or present material taught through the lens of that faith.” So all they’re doing is they’re banning a religious use of these funds, but they’re not discriminating on the basis of religious status. So, I ask you: Is there a constitutionally meaningful distinction between religious status and religious use?

Howard Slugh: So, we have a number of answers to that that we present in our brief. And I can just go through them one at a time. First answer is that the First Amendment does protect religious use. The clause in the First Amendment that we’re looking at here protects the free exercise of religion, and we look to the original public meaning of free exercise. In addition to being a religious liberty organization, we are also an original public meaning group. You know, our lawyers are from that school of constitutional interpretation.

We look at an article by a Professor Michael McConnell and other sources of history that show that when the First Amendment passed, and it used the phrase “free exercise,” that would have been understood to mean religious activity, religious uses, and not religious status. In fact, founders rejected a First Amendment that talked about protecting conscience as opposed to free exercise. And we think that in context, in the history, as it was originally publicly understood, the First Amendment did in fact protect exercise and not merely conscience.

But we also think that, as Justice Gorsuch suggested in Espinoza, that there is no difference between use and status anyway. What they’re doing when they say that they’re only discriminating against use, the state of Maine, they’re really discriminating against certain types of religious groups based on their status. They’re really discriminating against religious groups who faith is permeating every aspect of their lives, such that when they go to a school, it will necessarily violate the use in the way that you described it as either influencing how the curriculum is taught or the purpose of the school being to promote the faith.

And there are certain faiths where that will inherently be part of the way the school is run. And there are certain faiths where it will not. So to the extent that a prohibition on religious use is more harmful to schools who have that holistic view of religion, it is in fact discriminating against them on the basis of status. So we think Justice Gorsuch’s opinion had it right in Espinoza, and that is what the Supreme Court should affirm here.

Jason Bedrick: You point out that a plurality of the court recognized, I think in the Mitchell case, that there is no reason for a state to “reserve special hostility for those who take their religion seriously, who think that the religion should affect the whole of their lives, or who make the mistake of being effective in transmitting their views to children.” You know, so in other words, what the state is saying is you can be affiliated with religion. You just can’t actually act in a religious way.

I think Justice Gorsuch in his concurrence in the Trinity Lutheran case was already attacking this distinction between use and status. He said, look, it’s sort of a distinction without a difference. If a man were to lie down on a beach and let the waves wash over him, did he die because of an affirmative action, an act of commission, going and lying down on the beach, or was it an act of omission by just lying there and passively letting the waves overtake him? He said, really, this is a distinction without a difference.

Howard Slugh: And in case your listeners don’t know, Trinity Lutheran was a case about a tire resurfacing program where the state was going to donate used tires to resurface playgrounds to protect children. The state had said that religious schools who own playgrounds are not eligible to enter that program to get their playgrounds resurfaced, and the Supreme Court decided that that was unconstitutional because it discriminated against religious schools.

This same use versus status question was lingering in the background, and the court punted just like it did in Espinoza and said, “We don’t have to decide in this case whether use matters because,” in that case it was Missouri, “Missouri is discriminating against all religious schools no matter what they do in terms of use.” So that was really the origin of this question. And Justice Gorsuch, just like he did in Espinoza said, there’s no real distinction, and to discriminate against people because they do religious things is to discriminate against people because they are religious. And it is sophistry to claim that you can parse between those two

Jason Bedrick: Right. He said also, if a Baptist man sits down for dinner and he says a prayer before he eats his dinner, is this a Baptist man having dinner? Or is it a man having dinner in a Baptist way? Right? Again, there’s really no distinction between the two practically speaking.

So, on that note, your brief argues that the First Circuit’s status-use distinction, right? The First Circuit sided with Maine and said, yes, we do think that there is a distinction between status and use, which is why your group—along with others—are arguing that the U.S. Supreme Court should grant a writ of certiorari to take this case. You argue that if this is allowed to stand, this status-use distinction, that for all intents and purposes, it would render Espinoza as dead letter with regard to Orthodox Jewish schools and many other religious schools. So why is that the case?

Howard Slugh: So Orthodox parents send their children to Orthodox day schools specifically for the reasons that the court says would make it impermissible to get funding from Maine. Every single Orthodox Jewish day school in the country either promotes the faith or teaches some portion of the curriculum through the lens of Judaism. It is an inseparable part of how Orthodox Jews view education, and the obligation to educate their children, the biblical obligation to educate their children. And it simply wouldn’t be an Orthodox Jewish day school if it didn’t do Orthodox Jewish things.

People send their children there because they learn from the Bible. They learn how to do Jewish ceremonies. The schools take off for Jewish holidays. The schools have Jewish prayer in the morning. They communally read from the Bible on Mondays and Thursdays. They say prayers before and after they eat food. The school is just suffused with Judaism. They have secular education and high-quality secular education and also a Jewish component. And they can very easily fulfill the obligation of educating your kids as the state would require in secondary subjects and having them be up to state standards.

But they also have religious component totally infused in the day. And if you’re going to say that schools that have religious components infused in the day or promote their faith are not eligible, every single Jewish school, Orthodox Jewish day school, will not be eligible. And there the distinction between status and use just totally collapses because they become synonymous. The mere fact that you are an Orthodox Jewish day school as your status means that you do those uses and you will be ineligible for Maine tuition assistance program.

Jason Bedrick: A lot of this actually gets to a question which is not addressed in this case, and therefore not in your brief, but of how the public school system, although it claims, and I think really does strive to serve all children, actually does not. And really frankly cannot. So maybe you could just make the case a little stronger, even. Why is it that for Orthodox Jews, the public school system, which would love to take them, which would embrace them with open arms, actually cannot meet the needs of Orthodox Jewish families?

Howard Slugh: So, I think there are a number of reasons—practical reasons and theological reasons. The practical reasons include things like on Jewish holidays, Jews are prohibited from doing constructive labor, things like using electricity or writing for many Orthodox Jews. And it would simply be impossible to go to school those days. And there are 11 or 12 such days a year, and it would simply set these children back by a lot of days by having to go to a school that has school on those days which they can’t attend. And it’s far more convenient to go to a school whose schedule was built around Jewish holidays.

Jews pray three times a day. And Jewish men above the age of 13 have an obligation to hear the Bible read every Monday and Thursday. And on such days they would have to go to prayers before school at an exceptionally early hour to hear Torah reading, to hear Bible reading, in addition to prayers. Those are sort of practical reasons.

And then there are philosophical reasons and theological reasons in that there is an obligation on Jewish parents from the Bible to teach their kids Judaism, and to teach their kids comprehensively Judaism. And it’s extremely difficult for Orthodox Jewish parents to feel that their children have gotten that sort of education that prepares them to be religious individuals, religious leaders, community leaders in a Jewish context, without going to a school that dedicates serious time and serious effort to teaching that.

I went to a Jewish day school. My mornings were secular education. My afternoons religious education. Some years it was flipped, but it was half a day one, half a day the other. And the school days were significantly longer than public schools. We weren’t getting short-shifted on our secular education. We got to school 8:00 in the morning, didn’t get home till 6:00 at night or later. And that was the sort of environment that enabled people like myself to go on to college, become lawyers, and also participate in the Jewish world as religious individuals.

Which is, of course, not to say that it’s impossible to do otherwise, but many Jewish parents see this as the best path, the most effective path for preparing their kids to thrive in both worlds. And they think public schools will not be able to provide that same preparation to thrive in both, and flourish in both the Jewish religious world and the secular world.

Jason Bedrick: So that the central question in this case hinges on this question of religious status versus religious use. But are there any other issues that you think this case might raise that the court would take up?

Howard Slugh: So, it’s not an issue so much that the court might take up, but I think there’s an interesting issue in this case that a lot of people may have misunderstood for a long time. I think in the popular imagination, there’s a question as to whether states are allowed to give money to religious schools, as to whether that somehow violates the establishment clause, which is another clause in the First Amendment relating to religion.

And I think because of television, because of movies, somehow in the popular imagination, there’s a question as to whether states are allowed to give money to religious schools. And I think this case, which is asking a very different question, shows that that question is a misunderstanding of the law. The Supreme Court decided a long time ago and has been very consistent on the notion that, yes, as long as States are giving money non-discriminatorily to secular and religious schools, and the reason they’re giving the money is a secular reason. They wanted to promote education and they don’t care whether the schools are religious or not. They’re definitely allowed to give the money to religious schools.

The question in this case, and in similar cases, is are they required to give money to religious schools if they have already said, they’re going to give money to all private schools? Can they make a distinction that disfavors religious schools? Not must they do so, but are they allowed to do so? And I think just the fact that this case is being discussed can hopefully clear up that misconception in the popular mind, that it is well-answered and established that states are in fact allowed to give money to religious schools.

Jason Bedrick: So now I’ll ask you to make a prediction which attorneys notoriously loathe to do, or at least they pretend not to like to do it, and then they usually, I find, actually go ahead and make a prediction. Do you think that the court is going to take this case? And if they do, how do you expect that they’re going to rule?

Howard Slugh: So, I do agree that there are certain predictions I am loathe to make. I’m loathe to predict the outcome of a case after I hear oral argument, and those sorts of predictions, or when a case is going to be decided. But in terms of whether they’re going to take the case, I think they are going to take either this or a similar case that answers this status-use distinction. A lot of people don’t necessarily know, but one of the big criteria that the Supreme Court uses when it decides what cases to take up, are sometimes called the circuit split. The lower courts are split.

The court system is split into three levels—district courts, courts of appeals, and the Supreme Court. And there are courts of appeals that are geographic, over different parts of the country. And when different circuit courts resolve a question differently, the Supreme Court is more likely to take it to solve that dispute, because they don’t want there to be one law that governs New York and one law that governs Maine based on what the Constitution says, right?

They want the Constitution to mean the same thing everywhere, or they want federal statutes that mean the same thing everywhere. So there’s a circuit split in this case. Different circuits have answered this question differently, and I think the Supreme Court will want to resolve that circuit split, especially because they invited it, right?

As you mentioned, in Espinoza, Justice Roberts explicitly punts, he says, oh, there’s this lingering question about whether we are saying that it is unconstitutional to discriminate against religious people because they do religious things, as opposed to it’s unconstitutional to discriminate against religious people because they happen to be religious. He recognizes that question exists, and he explicitly declines to answer it. So the Supreme Court created that oxygen that led to this circuit split, and the circus split materialized. And I do think they’re going to want to quash it and to answer the question definitively so that there is one understanding of the Constitution across the country.

Jason Bedrick: And so, if they do take it, which direction do you think they’re going?

Howard Slugh: That is a much more difficult question. I think that maybe I’m being optimistic, but parsing what Justice Roberts said in Espinoza, I think that he’s going to agree with the justices who think that it is impermissible to discriminate based on a religious use. I mean, I think that is a much stronger argument to be totally frank, and it’s hard for me to really understand the notion that you can point to a religious person and claim you’re only going to pull funding from them because they do religious things, and then claim that that is not discriminating against them based on their exercise of religion. I guess there’s some mix of my advocate hat and my predictor hat there, but that is what I think the outcome will be.

Jason Bedrick: Yeah. You know, I think you’re right too. Also, speaking as a non-attorney, amateur court watcher myself, just to see Chief Justice Roberts say that discriminating on the basis of religion is odious to the Constitution, to then split hairs and say, well, of course I was only saying that discriminating on the basis of religious status is odious to the Constitution, but a discrimination on the basis of religious use, that might be okay. It seems to be a stretch and there may even be five votes even without Roberts.

Howard Slugh: There’s potentially a major curve ball, right? The Supreme Court is hearing a case called Fulton this term, in which they’re going to decide the question of whether laws that don’t discriminate against religion, but nonetheless impose burdens on religion, should get strict scrutiny under the First Amendment. So if the Supreme Court in this case called Fulton decides to reinvigorate the First Amendment and to offer more robust protection there, that would largely make this question answered in our favor anyway. Meaning that the court would have to apply the strictest level of scrutiny to laws like Maine’s without even answering this question if they come down the way we want them to come down in Fulton.

Jason Bedrick: Our guest today has been Howard Slugh, the founder and general counsel of the Jewish Coalition for Religious Liberty. You can find his amicus brief on the supremecourt.gov website. You can find his book chapter in Religious Liberty and Education: A Case Study of Yeshivas vs. New York, which Howard, we’ll have to have you back on to discuss that at some point.

Howard Slugh: Sure. Thank you. I look forward to it.

Jason Bedrick: Thanks so much. This has been another edition of EdChoice Chats. If you have any ideas for authors or activists, or just interesting individuals you’d like us to interview for the Religious Liberty and Education series, please send them to media@edchoice.org. And be sure to subscribe to our podcast, follow us on social media (@echpice), and don’t forget to sign up for our emails on our website edchoice.org. Thank you. We’ll catch you next time.

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