Apache Stronghold v. United States

Apache Native Americans are fighting to save Oak flat which is a sacred location for religious activities. For centuries, Native Americans have been visiting this site in the Tonto National Forest to pray and worship. Oak Flat consists of “old-growth oak groves, sacred springs, burial locations, and a singular concentration of archeological sites.” However, the U.S Forest Service has ignored the sacred religious site classification and plan on giving the land to Resolution Copper, a mining company, in exchange for other land. The actions Resolution Copper would do to mine the land would destroy the sacred site. Oak Flat has many resources, particularly around two billion tons of metal, that has made this land a commodity. To harvest the metal, the evacuations would likely result in the surface of Flat Oak “to distort and sink until it forms a “large surface crater.”

    The ninth circuit had denied protection of Oak Flat stating that the land transfer does not violate the Religious Freedom Restoration Act as it does not substantially burden Apache religion. The Religious Freedoms Restoration Act states that the government should avoid applying a substantial burden and use the least restrictive means possible. The RFRA was implemented after Employment Division v. Smith which led to the controversial precedent that Free Exercise can be denied for “neutral laws of general applicability.” The RFRA was created to hopefully undermine this precedent and allow religious exemptions in federal laws.

    Apache Stronghold has appealed the decision to the Supreme Court.  The Supreme Court has not decided on whether they will take the case. The constitutional question at hand is whether the United States Forest Service giving sacred land to Resolution Copper creates a significant burden on the Free Exercise of Apache Native Americans. The Apache Stronghold leaders have stated “as the dwelling place of the Ga’an, Oak Flat is a direct corridor to the Creator and is ‘uniquely endowed with holiness and medicine.’ Neither ‘the powers resident there, nor religious activities that pray to and through these powers can be relocated.” This represents the importance of this specific location to their religion and that religious activities would be impossible with Oak Flat’s destruction, which is a substantial burden. In one of the briefs, the Apache lawyers sited “the court has already held that when government controls the resources required for religious practice, barring access to those resources is a substantial burden of free exercise” and that “the same must be true for federal lands.” 

     This case is like Lyng v. Northwest Indian Cemetery Protection Association. The court has “historically resisted recognizing Native American religious claims over public land.” In this case, the Supreme Court denied religious protections against a native American community worried that a logging road would destroy their religious site. The court reasoned that there was not a less restrictive means to please both parties.  They argued that the Free Exercise Clause was not violated as there was “no coercion, discrimination, or penalty for their religious beliefs” and that the government “simply could not operate if it were required to satisfy every citizen’s religious needs and desires.” This sentiment sited reflects the decision of the 9^th circuit as they argued that the transferring of Oak did not substantially burden the Apache’s religious exercise as they could still freely believe in their religion without the land. The plaintiff in Apache Stronghold v. United States sited this case and the RFRA reasoning that the RFRA would seemingly overturn Lyng and rule in favor of the Apache. The 9^th court disagreed meaning the precedent of general applicability in Employment Division v. Smith should apply to Apache Stronghold v. United States as they believed it was a neutral and a generally applicable decision.

    In my opinion, I believe that the Supreme Court should take this case and rule in favor of the Apache community. The actions of the U.S Service in transferring sacred land to Resolution Copper does significantly burdens their free exercise of religion. Many of their sacred traditions would no longer be able to be performed. For example, Girls approaching womanhood must collect plants from oak flat as “’the spirit of Chi’chil Bildagoteel.’ As she gathers, she speaks to the spirit of Oak Flat, expressing gratitude for its resources.” This important coming of age tradition cannot continue by the destruction of the religious site and this is one of many religious rituals that would be obliterated. This does create more than a substantial burden, but almost eliminates the religion. While they are still free to believe their religion, without the ability to practice, the entire meaning and traditional aspect of their religion vanishes. Traditions and rituals are important for the maintenance and passing down of religion as younger generations may have a hard time grasping the importance without the meaningful nature of Oak Flat. I also believe this case is different than Lyng v. Northwest Indian Cemetery Protection Association as I could understand the court having a compelling interest in log roads as it directly helps manufacturing within the United States. However, Copper Resolution is an Australian mining company. Personally, I do not believe the government has the right to transfer religious land to a foreign company even if it was in exchange for other land. I just don’t believe that acquisition of other land is a compelling enough interest to so directly burden the religious exercise of their own citizens. They are directly favoring foreign and monetary purposes in expense of the long-exploited group's Free Exercise. 

    This case holds interesting stakes within the religious liberties era. The recent Supreme Court has been very open to accommodating religious exemptions. Christian denominations and prominent republican figures have sided with the Apache believing that religious liberties “rise and fall together.” This represents the sentiment of religious advocacy groups that all religions must have Free Exercise to protect all groups religious exercise. If this case were to rule in favor of the Apache community, the case would also be a crucial win for Native American communities that have long been exploited by the United States. This could bring forth a new age of justice and preservation for Native American communities who have struggled for years to have their religious liberties upheld.

 

https://becketfund.org/case/apache-stronghold-v-united-states/

https://newrepublic.com/article/194582/supreme-court-apache-stronghold-mining

https://narf.org/apache-oak-flat/

https://www.deseret.com/faith/2025/04/22/the-religious-freedom-case-stuck-in-supreme-court-limbo/

Religious Liberty and Anti-Discrimination: YU Pride Alliance v. Yeshiva University

In 2020, at Yeshiva University, a group of students wanted approval for a "Pride Alliance"' club on the undergraduate campus. Yeshiva University is America's oldest Jewish Institution of higher education. At Yeshiva University, students spend multiple hours studying Torah, learning Hebrew, and taking Jewish studies courses. Yeshiva's strong religious commitments are upheld on campus following Torah values. Yeshiva denied the "Pride Alliance" club's request to be officially recognized as a student group, arguing that it would be inconsistent with religious beliefs. Yeshiva University, despite rejecting this club's request, does welcome LGBTQ+ students and bans LGBTQ+ bullying and discrimination. The students, unhappy with the decision, sued and requested Yeshiva University endorse the group.

        Yeshiva argued that, as a religious institution, it has a constitutional right to uphold its religious principles, including making decisions about which student organizations align with its mission. While the two parties reached an agreement before reaching the Supreme Court, I want to consider the case on its merits as if it had gone to the Supreme Court. 

The key constitutional issue is whether the Free Exercise Clause protects Yeshiva University's right to refuse recognition of a student group. In this case, it is important to consider New York's Civil Human Rights Law (NYCHRL), which protects against discrimination. The New York County Supreme Court ruled that Yeshiva is an "educational corporation," not a "religious corporation," meaning that it would not be exempt from NYCHRL. Yeshiva University challenged this ruling, arguing that they are a religious institution and defends its right to conduct internal affairs, such as deciding what clubs serve its religious mission. 

Critics of Yeshiva's position argue that the university more closely resembles religiously affiliated universities like Fordham or Notre Dame rather than Christian seminaries, which are typically exempt from anti-discrimination laws (Stack). The New York County Court also argued that the university offers too many secular degrees, making it ineligible for narrowly religious organizations' exemptions. Yeshiva argues that the Court's ruling presents an unprecedented intrusion into its religious autonomy by suggesting government overreach to compel them to act against their beliefs. 

This case presents a challenge. While the Free Exercise Clause protects individuals and religious institutions from government interference in religious practice, it remains unclear whether Yeshiva University qualifies as a religious institution under relevant civil rights laws. It's helpful to consider the ruling in Employment Division v. Smith, where the Court held that neutral, generally applicable laws do not violate the Free Exercise Clause of the First Amendment, even if they incidentally burden religious practices. If applied to the Yeshiva case, then Smith would suggest that if the New York Civil Human Rights Law is both neutral and generally applicable, Yeshiva may not be allowed a religious exemption. However, whether Yeshiva should be legally classified as a religious corporation or an educational corporation complicates this issue. If Yeshiva were treated as a religious corporation, it may qualify for religious exemption under state and federal law, but the New York County Supreme Court ruled that Yeshiva is an educational corporation. 

I would argue that while the law may appear facially neutral, applying it in this context undermines the religious integrity of Yeshiva University. For over 135 years, Yeshiva has had a long history and tradition of following its Orthodox Religious beliefs. Forcing Yeshiva to officially recognize a student club that promotes values incompatible with Torah teaching compels it to act against its sincerely held religious beliefs. In this sense, what may seem neutral at face value, in practice, becomes an act of coercion pressuring religious universities to conform to state laws. 

While Smith set a precedent that generally applicable laws do not require religious exemptions, more recent rulings like Our Lady of Guadalupe have reaffirmed strong constitutional protection for religious schools. In Our Lady of Guadalupe School v. Morrissey-Berru (2020), the Court emphasized the "ministerial exception," which protects religious schools from government interference in employment decisions central to their religious identity. While the Yeshiva case involves student clubs instead of employment, the underlying principle is that religious schools are free to make decisions that reflect their faith commitments. Forcing Yeshiva to recognize a club that contradicts its Torah base values would violate that same autonomy. 

Given Yeshiva's long-standing religious tradition and the distinct role religion plays, the university should be provided with religious exemptions. While I see both sides of this debate, I believe Yeshiva University should be legally recognized as a religious institution and granted the exemptions necessary to preserve its religious mission. To protect religious freedom, it is important that all religious schools can carry out their beliefs without being compelled by the government to act in a way that violates their religious convictions.

Sources: https://becketfund.org/case/yu-pride-alliance-v-yeshiva-university/

https://www.lgbtqnation.com/2025/03/after-years-of-refusal-jewish-university-finally-allows-new-lgbtq-club-on-campus/

https://www.nytimes.com/2025/03/20/nyregion/yeshiva-university-lgbtq-club.html?unlocked_article_code=1.D08._STm.QQ2ae03L7sSe&smid=url-share

Locked Out by Faith: When Religious Freedom Meets Discrimination

 

In October 2015, Raja’ee Fatihah, a practicing Muslim and U.S. Army National Guard member, walked into the Save Yourself Survival and Tactical Gun Range in Oktaha, Oklahoma, to use its public facilities for marksmanship training. He then completed the required liability forms and provided his identification. But once he identified himself as Muslim, the owners, already known for their controversial signage declaring the business a “Muslim-free establishment” armed themselves and interrogated Fatihah about his faith. They accused him, without evidence, of holding beliefs that condone violence and then denied him service, forcing him to leave. A lawsuit followed Fatihah v. Neal, arguing that the business violated Oklahoma’s anti-discrimination laws and Title II of the Civil Rights Act of 1964, which prohibits public businesses from refusing service based on religion, race, or national origin. This case raises significant constitutional issues

related to both the Free Exercise Clause and the Establishment Clause, including how the law protects religious minorities, maintains neutrality, and prevents discrimination in publicly accessible businesses.

At the heart of this case is the principle of neutrality. In Employment Division v. Smith (1990), the Court ruled that religious beliefs do not exempt individuals from neutral laws of general applicability. However, in Church of the Lukumi Babalu Aye v. Hialeah (1993), the Court struck down facially neutral ordinances that were clearly designed to suppress a particular religious practice. This tension between facial neutrality and neutrality in effect is central to evaluating laws or actions that disproportionately burden specific religious groups.While Save Yourself is a private business, it is open to the public and therefore subject to anti-discrimination statutes designed to ensure equal access. The Civil Rights Act, like the Constitution, reflects the ideal that public accommodations cannot pick and choose customers based on religion. The gun range’s posted sign and discriminatory actions against Fatihah impose a direct and substantial burden on religious liberty not by the state, but by a public-facing business subject to the law.

Supporters of the gun range owners might argue they have the right to refuse service to anyone who poses a perceived threat, or that their actions are protected by their own religious or ideological beliefs. In that way, this case is similar to Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), where a business owner refused service based on religious objections to same-sex marriage. The Supreme Court sided narrowly with the baker, emphasizing the need for government neutrality toward religion. However, there are important distinctions. Fatihah’s faith alone was used as justification for denial of service, and there was no disruptive behavior or request for special accommodation. Denying access based solely on religion reflects the kind of targeted discrimination that civil rights laws were written to prevent. The opposing view grounded in precedent from Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) holds that the government must show a compelling interest and use the least restrictive means when a law substantially burdens religious exercise. But these cases involved individuals seeking religious exemptions from general laws, not individuals or businesses seeking to deny others rights because of their religion.

In my view, the denial of service to Fatihah represents a clear failure to uphold both the spirit and letter of the law. The Civil Rights Act is there to prevent discrimination and ensure equal access to public accommodations. There is no constitutional justification for religious discrimination in commerce. Allowing businesses to selectively deny service to Muslims or adherents of any faith based on bias undermines the rule of law and encourages sectarian exclusion. Furthermore, this case blurs the line between belief and action. While belief is absolutely protected, actions taken in the public square especially by businesses regulated by civil rights law must comply with nondiscriminatory principles. The gun range owners’ conduct crossed that line. This incident also undermines the sincerity standard sometimes used in religious freedom cases. There is no evidence that Fatihah’s belief posed a threat, and no reasonable interpretation of Islam should lead to assumptions of violence a thorough analysis of the faith would actually lead to the opposite conclusion. These arguments perpetuate islamaphobic stereotypes, not legitimate constitutional claims. The Save Yourself gun range case matters because it tests the limits of religious liberty in a pluralistic society and challenges whether religious identity alone can be grounds for suspicion, exclusion, or denial of rights. If allowed to stand, the gun range’s actions would create a dangerous precedent where private businesses can weaponize religion to discriminate against religious minorities.

https://www.aclu.org/cases/fatihah-v-neal
https://www.acluok.org/en/press-releases/oklahoma-gun-range-removes-muslim-free-sign-commits-serving-customers-all-faiths
https://www.cbsnews.com/news/oklahoma-us-army-reservist-muslim-free-gun-range-anti-islamic-discrimination/
https://religionnews.com/2019/04/24/civil-rights-advocates-drop-lawsuit-against-oklahomas-muslim-free-gun-range/
https://apnews.com/general-news-a7ac23a441944ff3bebcfdbdff7e206d

Pronouns, Policy, and the First Amendment: A Classroom Crossroads

 In Willey v. Sweetwater County School District #1 Board of Trustees, a Wyoming federal district court ruled against a teacher who challenged a school district policy, referred to as the PNCP - Preferred Name and Pronouns Policy, requiring staff to use students' preferred names and pronouns. The plaintiffs, a teacher who is also a parent, argued that this policy violated their rights under the Free Exercise Clause of the First Amendment and conflicted with their religious beliefs. The court, however, supported the school district’s policy, finding that this system was a neutral law of general applicability, aligning the case with the constitutional precedent set by Employment Division v. Smith (1990). 

 

The key matter in this case is whether the school district’s policy substantially burdened the plaintiffs' sincerely held religious beliefs. As a parent and an educator, the plaintiff claimed the policy prevented her from instructing her child following her faith and forced her as a teacher to violate that same belief in the classroom. Her sole argument is based on that the policy required her to affirm gender identities she did not believe were truthful or religiously valid. 

 

The Free Exercise Clause does protect individuals' rights to practice their religion without undue government interference. However, the court said the protection does not grant individuals the ability to override a neutral, generally applicable law just because it conflicts with their specific religious beliefs. In Willey, the court found the PNCP was equally applied to all staff, regardless of their beliefs, and did not target a religion in any way. The court noted that teachers were allowed to request exemptions “for any reason,” which included but did not privilege religious reasons. The policy did not involve an individualized system of exemptions subject to case-by-case government discretion. This case remained within the decision of what Smith defines as constitutional. 

 

This decision also steps into the broader implications for the school district trying to balance a respect for their employees’ religious freedoms and inclusive practices. For teachers, this means that religious objections to school policies will not be automatically approved and entitle them to disregard their policies. A uniform process will protect the integrity of the policy and the individual rights of the employees. 

 

In my opinion, the court reached the correct decision in this case. I see both sides and how values are being violated, no matter what the decision is. This is not to say that religious convictions are unimportant; the sincerity of the plaintiff’s beliefs was never questioned. However, the Free Exercise Clause does not give an individual the right to exempt themselves from a generally applicable policy because they have a personal or religious disagreement. By upholding the school’s neutral policy, it maintains the educational environment structure and supports all students, without prioritizing one set of beliefs over another. 

 

This decision continues to align with the precedent set by Employment v. Smith (1990), where the Court made it clear that a neutral, generally applicable law does not violate the Free Exercise Clause. Unless the policy is designed to target religion or involve some government discretion that evaluates religious reasons. The court found no discretion needed in the Sweetwater policy. The exemptions are provided without inquiry into the motives behind them, and they do not discriminate against religious ones. 

 

If the court had ruled the other way, it might have created a precedent that allows public employees to ignore or disregard inclusive policies simply by appealing to religious beliefs. This could create a slippery slope and lead to inconsistent application of school policies and exemptions. This could ultimately affect a school's effort to create a safe and respectful educational environment for all students. While the Free Exercise Clause protects the right to practice religious beliefs, it does not give an individual the ability to ignore workplace policy and rules that are equally enforced and religiously neutral. 

 

The Willey case shows the continuing conflict between religious freedom and public obligations, especially in public school settings. Accommodating religion in these types of situations is very hard for the court to carefully balance with the rights and the well-being of others. This case ruling did not diminish the importance of religious freedom, but purely reinforced that these liberties can be exercised within the structure of civic responsibilities. When a policy is neutral and fairly applied, the Constitution does not demand a religious exemption. 

 

In the end, the court's decision in Willey v. Sweetwater County School District #1 Board of Trustees provides a great example that the Free Exercise Clause is not about lifting one view over another. It is about ensuring that all are treated equally under the law. 

 

Sources: 

https://storage.courtlistener.com/recap/gov.uscourts.wyd.63372/gov.uscourts.wyd.63372.80.0.pdf

https://religionclause.blogspot.com/

https://www.sweetwaternow.com/parents-suing-scsd-no-1-for-affirming-students-gender-identity-without-their-consent/

https://clearinghouse.net/case/45143/

https://www.oyez.org/cases/1989/88-1213

https://cowboystatedaily.com/2024/10/01/wyoming-parents-suing-over-school-gender-transition-taps-national-expert/

Should Public Charter Schools Receive Public Funding?

In the case Oklahoma Statewide Virtual Charter School v. Drummond, a catholic organization is attempting to start the first publicly funded religious charter school in the United States. The school is called “St. Isidore of Seville Catholic Virtual School”. The school’s application was approved by the Oklahoma Charter School Board but it was challenged by Oklahoma Attorney General Gentner Drummond. His argument stated that public funding for a religious school was a violation of the First Amendment of the constitution. The reason for this was because public money would be used to fund religious institutions which was an unconstitutional lack of separation between church and state.

This case has not been decided by the supreme court and it raises several questions about religion and the constitution. The school intends to teach a curriculum that includes religious teachings while at the same time being funded by the public as a charter school. For this reason, it raises questions about constitutionality.

The main issues at hand with regard to the constitution are that on one hand, the supporters of the Catholic school are arguing that denying them the ability to participate in the charter school sponsorship program is not allowing them to freely express their free exercise of religion. On the other hand, the group that disagrees with the establishment of the religious charter school is arguing that by founding a religious school with public money, this is an unconstitutional establishment of religion. The conflict is a test of these two constitutional principles because it causes courts to navigate the balance between allowing people to exercise their right to exercise their religious beliefs while also preventing an unconstitutional lack of separation between church and state.

In my opinion, the charter school being funded by the public is unconstitutional. The reason for this is because the school includes a curriculum designed to teach students in alignment with the Catholic faith. While people should be able to freely exercise their religious beliefs, it should not be funded by the public due to the fact that the public may not share the same Catholic beliefs as the Charter school. In addition to this, if the school were allowed to use public funding to support itself, then it would establish precedent that would promote the use of taxpayer funds to support religion.

In Espinoza v. Montana Dept. of Revenue, the supreme court ruled in favor of the school in a case where the issue at hand was whether or not it was constitutional to exclude religious schools from tuition assistance programs. This was an example of when the court ruled in favor of the free exercise clause. However, this case is different from Oklahoma Statewide Virtual Charter School v. Drummond because it was regarding private school tuition, not public charter schools. Since the charter school is funding public education, the outcome of this case should be different. When a private religious school is aiming to use public funds, it is more reasonable as to why the funds are allowed to be used because the school’s identity as a private religious school is being challenged if they are not allowed to. This would support the fact that the inability to use funds is a violation of their free-exercise orf religion. However, in a public charter school, the school is a public institution and for this reason, the identity of the school is more sensitive in that it must align with the state and the funding should be secular. For these reasons, the use of public funding for a public charter school is an unconstitutional establishment of religion because it directly funds a government institution.

Sources:

https://www.theguardian.com/us-news/2025/apr/30/supreme-court-charter-schools?utm_source=

Can Secular Courts Interpret Bylaws of Religious Universities?

            Bethesda University, located in Anaheim, California, is a private Christian university that was founded in 1976 on the ideals of Pentecostal theology and was recognized as an accredited institution by the state. Their specific theology uniquely emphasizes a direct, experiential relationship with God through the Holy Spirit, and embodies a more literal interpretation of the Bible. According to the university, these values shape the mission and educational goals of the school. 

In the early months of 2022, an internal dispute arose among the school’s board of directors when the president of the university wanted several board positions to be filled by non-Pentecostal members. Up until then, every university board member had been a follower of the Pentecostal faith. The president, however, had concerns over the accreditation status of the university because they lacked a diverse representation of religion on the board itself. The board then elected the new members to avoid any repercussions. A few months later the board discovered the president’s concerns did not have any legal justification and objected to the appointments of the new directors. After the president refused to remove the new directors from the board or hold another election, the majority of directors voted to fire him from his position and he was subsequently let go. He then filed a lawsuit, and a California trial court conducted a hearing under the Corporations Code to determine which group of board members should lead Bethesda and to protect the jobs of his new appointees.

Under the school’s bylaws, its board retains ultimate power to determine the religious principles and policies governing every aspect of its operations and instruction. Yet somewhere in the official language, the court found that this particular Pentecostal organization permits non-Pentecostals to occupy some of the highest leadership positions despite the school’s religious requirements. Therefore the new appointees who do not share the university’s founding faith cannot be demoted or fired solely because of their religious beliefs or lack thereof. 

The constitutional question at hand is not whether or not the board members can be reevaluated, it is whether or not the court has the authority to interpret and act upon private religious universities’ bylaws and missions, especially when their ruling goes against what the founders had originally intended. The First Liberty Institute, who is defending Bethesda University in this case, argues that allowing the court to interpret the foundational documents of the university is an excessive entanglement of the church and state, as cited under the Lemon Test established in Lemon v. Kurtzman, and therefore is in violation of the Establishment Clause. They believe secular courts are prohibited by the First Amendment from involving themselves in the mission of religious organizations. If a court can evaluate the religious character of Bethesda University, it can also tell the local church who it must hire to preach their beliefs and allow outsiders to direct the mission of the church, regardless if it is out of step with the religious doctrines of the church. 

The court claims to have acted neutrally towards Bethesda University by judging the bylaws based on face value and technical language, not the religious convictions of the Pentecostal ideology. Also the court could argue that the missions of religious universities have been interpreted, and in some cases challenged, in the past. A primary example of this can be found in Bob Jones University v. United States. Here, the court upheld the revocation of the university’s tax exempt status due to an interracial dating ban that went against the government’s policy interest. By ruling against them, the court clearly decided against Bob Jones and their religious mission. 

            In my opinion, the argument in favor of Bethesda is more convincing. The issue at hand is inherently different from the Bob Jones ruling because there is no compelling reason for the government to intervene in Bethesda University’s hiring practices or their mission as a private religious entity. The Establishment Clause protects religious institutions, including universities, from government overreach and excessive entanglement. There is no reason to treat Bethesda University differently from any other church or organization that holds religious beliefs, especially without a compelling interest motive. If we allow the court to interpret bylaws that are held and written by a religious institution, we are indirectly allowing the government to enforce these privately held laws (many of which are religious in nature) on their authors and supporters who have unique religious convictions and wish to see these convictions represented in their respective schools. While the court may be acting neutrally by interpreting the bylaws through a nondiscriminatory lens, the result of their ruling has negative implications for the future of religious freedom in a variety of religious institutions.

Sources:

https://firstamendment.mtsu.edu/article/lemon-test/

https://firstliberty.org/cases/bethesda-university/#simple1

https://www.oyez.org/cases/1982/81-3

https://firstliberty.org/wp-content/uploads/2024/11/Bethesda-Petition_Redacted.pdf

https://firstliberty.org/cases/bethesda-university/#simple2

Should religious schools receive special education services?

    The case of Loffman v. California Department of Education reveals Jewish parents in California who have a religious obligation to send their children to a religious school that reflects their beliefs. Parents like Chaya and Yoni Loffman, Fedora Nick and Morris Taxon, and Sarah and Ariel Perets are put in a difficult position due to their children’s disabilities. While top Jewish schools like Shalhevet High School and Yavneh Hebrew Academy offer high-quality, faith-based education and are eager to serve children with disabilities, California law has excluded religious schools from receiving state and federal special education funding. This exclusion forces religious families to choose between their faith and essential disability services for their children, a choice not required of families sending children to secular schools. The plaintiffs argue that in rejecting funding for special education in religious schools, their First Amendment right to freely exercise their religion is being violated. 

    The federal Individuals with Disabilities Education Act (IDEA) is designed to ensure all children with disabilities can access an equal and sufficient education. This includes funding for special education services. California’s “nonsectarian requirement” rejects religious schools from participating in these programs. This policy disproportionately affects religious communities and parents unable to fully support their students and children, along with lower-income families, who are more likely to have children with disabilities. In implementing this, the government is putting parents in the position to choose between their faith and their children’s needs. This decision parents are forced to make places a direct burden on their religious freedoms that are protected under the First Amendment. As the plaintiffs have argued, they feel as though excluding religious schools from receiving funding for special education is discriminatory while also violating their First Amendment right to freely exercise their religion. 

    While this case is awaiting its return to the district court for trial, the case went to the Ninth Circuit Court of Appeals on October 28, 2024. The Ninth Circuit Court of Appeals unanimously found that California’s law fails to be neutral by providing necessary beneficial services to secular schools, but not to religious families and schools. This ruling reveals that California cannot deny special education funding to religious schools, as a failure to do so would be unconstitutional. 

    In analyzing this case, there are similarities to the recent Espinoza v. Montana Department of Revenue (2020). Espinoza reveals the issue that stemmed from Montana passing a law that offered tax credits to donations for private schools, including religious ones. Montana’s Department of Revenue created Rule 1, prohibiting this aid from being received by families attending religious schools. This was in line with Montana’s Constitution, implementing their no-aid policy. Mothers of children attending religious schools wanted equal access to these donations and challenged the rule in court. The Montana Supreme Court struck down the entire program because of Rule 1, but the U.S. Supreme Court later found that this was unconstitutional. The Court argued that in granting aid to all private schools, including religious ones, there is no advancement of religion. While religious schools may receive indirect aid, the aid is directly benefiting the families of the children who attend these schools, not advancing religion. Ultimately, the Court ruled in favor of Espinoza, stating that in not doing so, they would be upholding unconstitutional practices and violating their First Amendment rights to freely exercise their religion.

    Similar to Espinoza, the case of Loffman deals with the exclusion of religious schools, students, and families from public benefits. Excluding religious schools from receiving the public benefit of state funding for special education lacks neutrality, as secular schools can benefit from these programs while religious ones do not. This is an important issue to address as it directly affects the families seeking an education that meets both their children’s unique needs and their religious beliefs. This case is significant as it has broader implications, potentially influencing how other states handle special education funding for religious schools.

    I feel as though the Court should rule in favor of the plaintiffs. Given the direct burden that is placed on the families who are negatively affected by this law, and the direct burden on their religious freedoms, it seems unconstitutional to uphold the case made by the California Department of Education. The lack of neutrality of this law is also extremely apparent. Secular schools, more specifically, the families of students who attend secular schools, are granted the public benefits to receive special education, a genuine need. States should not be at liberty to single out religious schools or families for exclusion from generally available public benefits based on the sole reason that they are religious. While I can see how there may be counterarguments rooted in the significance of the wall between church and state, I do not think that ruling in favor of Loffman advances religion. Neutrality towards religion is a key part of the Constitution, in ignoring the implications these laws have on religious families would directly go against that.

    With all of this being said, I invite you to share your opinions on this case. What do you think? Are the plaintiffs’ First Amendment rights to freely exercise their religion being infringed upon?

Sources:

https://becketfund.org/case/loffman-v-california-department-of-education/

https://cdn.ca9.uscourts.gov/datastore/opinions/2024/10/28/23-55714.pdf

https://www.oyez.org/cases/2019/18-1195

Loe v. Jett

Minnesota law had a Post Secondary Enrollment Options (PSEO) program to allow highschool students to take college courses free of cost. Melinda Loe, Mark Loe and Dawn Erickson are Christian parents whose children have used PSEO funds in the past for courses at religiously affiliated universities, such as the University of Northwestern and Crown College. In 2023, the PSEO was amended to exclude religious institutions because they required a statement of faith from students. Therefore, parents filed suit that Minnesota's amended law violated religious freedom, believing faith should be at the forefront of their lives, which includes education.  

The constitutional question is if the exclusion of religious institutions from Minnesota’s PSEO program violates the Free Exercise Clause of the First Amendment. This brings into question if neutral and generally applicable laws can function as religious discrimination. There is also the constitutional question of if the programs funding of religious education is a violation of the Establishment Clause. I argue that there is an unconstitutional violation of the Free Exercise Clause because of the substantive and discriminatory impact on religion; further, I believe there is no violation of the Establishment Clause because the program has a secular purpose that does not directly aid religious institutions. 

Regarding the Free Exercise Clause, this case has parallels to Locke v. Davey (2004) where Washington’s Promise Scholarship Program that excluded degrees in theology was found to be constitutional by the Supreme Court. However, in the dissenting opinion, Justice Scalia cites Everson v. Board of Education, noting how generally available public benefits should not discriminate based on religion. These programs are to educationally benefit society, and excluding religion from these public benefits imposes burdens and is discriminatory towards religion. 

The dissent in Locke also discusses that although being facially neutral, the law has disparate impacts that burden religion. Further, the funds are going to the child, rather than the institution, so there is no direct aid of religion.  I agree with the dissent that Washington’s Promise Scholarship Program violates free exercise, similarly seeing Minnesota's law as unconstitutional. Furthermore, the Minnesota law seems to go further than the program in Locke because it excludes entire institutions rather than specific majors of study, making it an even clearer case of religious discrimination.

Furthermore, In Carson v. Makin (2022), the Court ruled that Maine could not exclude religious schools from a tuition assistance program. The Court emphasized that "But a State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise". Therefore, free exercise can be hindered even when a state is trying to protect against establishment. This extends to Minnesota’s law where educational funding programs that excluded religious institutions based on their religious character violate religious liberty. 

Regarding the Establishment Clause, In Zelman v. Simmons-Harris (2002) Ohio’s scholarship program was brought into question because Ohio taxpayers feared that the programs’ funding going to majority religious institutions was unconstitutional. The court held the program to be constitutional because of a secular purpose to educate low income children while remaining neutral in regards to religious and secular interests. Furthermore, the government is helping the child, rather than the institution, so the government is only indirectly aiding religion. Also, parents have the choice of secular options, yet are choosing religious education based on their faith. In terms of Minnesota’s program, I do not think there is a violation of the Establishment Clause for parallel reasons, seeing true neutrality as allowing religion because allowing and establishing are not the same. 

This case also brings into light the question of parental rights in education. The Minnesota PSEO program interferes with parents’ ability to exercise their rights by preventing them from using generally available educational benefits that align with their religious convictions. The parents want their children to have equal educational opportunities while being able to have a community that shares in their faith. This puts parents in a position to choose between their child’s education and their religious upbringing. Since parents have the right to parent their children, I believe the PSEO program's exclusion of religious institutions impacts parental, as well as religious, rights. 

In conclusion, I believe the amendment to Minnesota's PSEO program that excludes religious institutions violates the Free Exercise Clause of the First Amendment while posing no Establishment Clause concerns. Government programs cannot exclude public benefits because of religious character, and religious liberty requires that people of faith have equal access to public benefits without having to sacrifice their religious convictions. However, the opposing side may see issues with public funds indirectly aiding religion. What do you think?

Sources:

• https://becketfund.org/case/loe-v-walz/ 

• https://www.jns.org/parents-back-in-court-after-minnesota-pre-college-program-exlcudes-faith-based-schools/