Hot off their Colorado no-gay-weddings baker case, the Alliance Defending Freedom (ADF) is at it again. This time, the target is the state of Vermont. ADF alleges that the state discriminates against religious schools. They’re absolutely right, but until now ADF wouldn’t have had a chance. They’re hoping a recent SCOTUS win has put a crack in the wall between church and state wide enough to pull the state of Vermont through. The case comes down to one tricky question: Is a college class the same as tire mulch?

Here’s what we know: Three high-school students from a Catholic school wanted to participate in a dual-enrollment program. In this program, the state pays tuition for students to take college courses for advanced credit. Because they attended a religious private school, they weren’t allowed to participate. According to the Burlington Free Press, Vermont’s Supreme Court ruled in 1999 that state funds could not sponsor students at religious schools.

ADF says such laws are discriminatory. As they complained,

The Dual Enrollment Program statute discriminates against students attending religious high schools not because of the content of college courses they wish to take, but instead because of the religious status of the high schools they attend.

As SAGLRROILYBYGTH are aware, two SCOTUS cases are most relevant here. Lemon v. Kurtzman (1971) established the three-prong “Lemon Test.” This case decided whether or not Rhode Island and Pennsylvania could financially support religious schools.

1. Any law, SCOTUS ruled, must have a secular purpose. So, for example, a state government COULD pay for children to go to religious schools if the government was mostly interested in the secular goal of providing a basic education for children.
2. Second, any law’s primary effect must not be one that supports or inhibits religion. If a religious school is part of a church’s religious mission, for example, the government can’t pay for it, because the primary effect would be to support that religious mission.
3. Trickiest of all, any law must avoid “excessive government entanglement with religion.” But what constitutes “excessive?” IMHO, this is where things get really tricky.

Because last year, SCOTUS ruled that a church could not be excluded from a grant program that had a secular purpose. Trinity Lutheran complained that it was being discriminated against by not being allowed to participate in a program for its playground. The church wanted an equal chance to get government-sponsored tire mulch for its playground.

In its new case, ADF is undeniably absolutely correct in its primary assertion. The state of Vermont really does discriminate against students from religious schools. That discrimination, however, is intentional and seems to be in line with the Lemon Test tradition.

The way I see it, ADF deserves to lose this case. A college class is not the same as tire mulch. To be able to offer college course credit, IMHO, would be a big bonus for any high school. It would promote the mission of the school. If that mission is religious, as it certainly is in the case of Catholic schools, then government money would constitute excessive entanglement. Moreover, funding this important educational experience would mean supporting the Catholic diocese’s religious mission.

But if it helped students in religious schools take college classes, would Vermont’s PRIMARY purpose be to support the Church? Or merely to help all its citizens further their educations? And how would a judge decide what constitutes “excessive” entanglement?

What do you think?