Rice Memorial High School

Rice Memorial High School is seen at night.

A recent federal appeals court decision regarding a case in Vermont shows the United States Supreme Court is shifting the goalposts of what the Constitution originally deemed precedent, law experts say.

Former President Donald Trump appointed a record number of federal judges in his four years in office, and now the US is seeing the effects even here in Vermont. In June 2020, the Supreme Court ruled in favor of the Free Exercise Clause over the Establishment Clause, which prevents public funds supporting religious activities such as prayer, indoctrination, and worship. This ruling, in Espinoza v. Montana Department of Revenue, led to a federal appeals court reversing a lower court decision involving dual enrollment for a student at Rice Memorial High School.

“We have a situation where the federal constitutional law is changing,” said Tom Sullvan, former president of the University of Vermont and professor of Constitutional Law at UVM. “Espinoza kind of changed the law substantially. Under this present Supreme Court, it balances quite strongly in favor of freedom of religion.”

Experts say the US Court of Appeals had to side with the Supreme Court, and the Supreme Court in the Espinoza case ruled that taxpayer funds could be used for private religious schools equally to private non-religious schools. That decision put preference to the right to practice religion over the separation of church and state as is traditionally defined.

The 2020 decision made its way to Vermont when a student at Rice Memorial High School — a private religious Catholic school — sued the Agency of Education over the AOE refusing to use taxpayer funds to fund the student’s studies in Vermont’s Dual Enrollment program.

The student’s lawyers argued that the program was discriminatory against students who chose religious schools and cited Espinoza v. Montana Department of Revenue, when the Supreme Court ruled that students who chose to go to religious schools remain eligible for tax credits toward their education.

When contacted, the AOE declined to comment on the decision.

Does it violate Vermont’s constitution to allocate taxpayer funds toward religious instruction?

“Absolutely not,” said attorney Jake Warner, one of the primary attorneys for the student in A.H. v French said. “This case is not even about that, at root. It certainly does not violate any constitutional provision to treat religious school students equally to public school student counterparts.”

But did it pave the way for courts to rule that taxpayer dollars could come closer to funding religious studies? Possibly.

When the case made it to the federal appeals court, freedom to practice religion trumped the worry that taxpayer funds could be used to fund religion, and the court of appeals issued an injunction in favor of the student on the grounds that the Supreme Court ruled similarly last year.

“Although Vermont has legislative history on this and interpretation, it obviously hasn’t been brought up to current understanding of the Supreme Court’s favoring the Free Exercise Clause,” Sullivan said. “That’s how it gets here. One can disagree with the Supreme Court’s approach, but nevertheless it’s clearly where the Supreme Court is going in a very strong way: Favoring the individual person’s exercise of their own religion over a public worry about public funds supporting religious institutions, that’s the Establishment Clause.”

When a student is accepted into the dual enrollment program, Agency of Education funds pay for college courses, but in order to keep taxpayer funds away from funding religious studies — which the student was enrolled in at Rice at the time of the lawsuit — students who chose to go to a religious school remained exempt from the program.

Until now.

“They are moving from one approach and doctrine to another,” Sullivan said. “The trend is very, very clear ... The court has substantially moved away from the original understanding of the First Amendment that was ‘no public funds to support a religious entity or religion in general.’”

{span style=”font-size: 1.17em;”}Record appointments{/span}At 226 judges, Trump has appointed and confirmed more federal and Supreme Court justices in one term than any other sitting US president in history.

It’s a stark comparison to the number of judges appointed by three of his predecessors, each of whom served eight years in office: Obama appointed 320, George Bush appointed 322, and Bill Clinton appointed 367.

During Trump’s tenure, the Senate confirmed three associate justices to the Supreme Court: Justice Amy Coney Barrett, Justice Neil Gorsuch, and Justice Brett Kavanaugh, in addition to 54 judges to the United States courts of appeals, 174 judges to the district courts, and three judges for the US Court of international Trade.

Reagan is the only president to top Trump’s Supreme Court appointments. He chose Sandra Day O’Connor, Antonin Scalia, William Rehnquist and Anthony Kennedy for the Supreme Court during his four years in office.

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